They were Project Sparrow board sub-committee meeting minutes from 9 and 30 April 2014. Project Sparrow was the codename given by the Post Office to its interactions with the Justice for Subpostmasters Alliance, MPs and Second Sight (independent investigators) between 2013 and 2015.
During the 2018 group litigation Bates v Post Office at the High Court, the Post Office tried to claim the name “Project Sparrow” was legally privileged. True fact.
The heavily redacted versions of the two Project Sparrow meeting minutes were sent to me in 2021 after I made the request which led to their release. I published them. Shortly afterwards I received them in unredacted form. I failed to publish them. I am grateful to the BBC story (a well-deserved scoop) for prompting me to look through my own document archive. I am now pleased to be able to upload the unredacted minutes for your reading pleasure:
Unredacted Project Sparrow board meeting minutes 9 April 2014:
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This short series of blog posts reveals the contents of a letter sent by the barrister Paul Marshall to the Post Office Horizon Inquiry. The letter shares Marshall’s concerns at the Post Office/Government compensation schemes and the way they are being run. It was written on 9 January 2024.
Part 1 deals with the section of the letter which addressed the problems being suffered by Subpostmaster claimants in the Bates v Post Office High Court litigation with overturned criminal convictions.
Part 2 deals with what Marshall calls the “complete absence of any principled approach to interim payments”.
This final part is concerned with the Post Office and government’s role as gatekeepers in the Subpostmasters’ access to expertise and therefore justice. You could read it as a moan by a lawyer about lawyers not being given enough money, but closer inspection may tell you something about the implications.
Mr Marshall writes:
“It is trite that economic barriers to a market (including ex hypothesi a market for legal services) may be low cost as much as (more commonly) high cost.
I represent only a small number of claimant victims of the Post Office, but I am almost overwhelmed with work on Post Office cases. While I have been able to enlist the expert and valuable assistance of a colleague with specialist experience of personal injury work, somewhat to my surprise, the compensation process is materially indistinguishable from litigation. As a result I have been driven, from last summer, to seeking the assistance of a full service law firm.
In many respects, the circumstances of my clients are markedly different from ordinary litigation. The statutory limitation period operates to provide a temporal (usually 6-year) boundary for documentation. In these cases the claims go back more than 10 years and sometimes more than 20 years. There is a serious paucity of documentation (which is nonetheless routinely demanded by the Post Office/DBT [Department for Business and Trade] and their lawyers – in many cases, such as Mrs Arch’s, the Post Office retained all her documents when she was excluded and suspended from her branch) and the work of reconstruction of events is over a commensurately long timeframe. That presents unusual evidential challenges.
Furthermore, the Post Office’s victims are typically deeply traumatised individuals. Client care that is required is greater than in the ordinary run of commercial litigation. I think almost all those whom I represent are diagnosed as suffering from long-term PTSD, mostly severe. It is necessary for clients to obtain expert evidence, not only medical evidence, but accountancy evidence, and latterly other expert assistance also.
The introduction provides that: “The Government has agreed to meet the reasonable legal costs of members of the GLO claiming for additional compensation under the scheme announced on 7 December 2022. This note sets out the tariff by which those costs will be calculated. It has been agreed through a mediated discussion between DBT and legal advisors known to represent eligible claimants – ie Freeths, Howe & Co and Hudgell Solicitors.”
It provides that fees payable by the Department of Business and Trade for “Complex” cases, per case, will be £18,060. Being neither a solicitor nor a solicitors’ firm, I was party neither to the discussions/negotiations nor to the agreement of those rates. I suppose that they might possibly make commercial sense if one is handling a very substantial volume of closely similar cases.
You will see that the government strongly advises claimants not to engage any lawyer who asks for payment, either during the claims process or when compensation is paid. Similarly, the GLO Compensation Scheme Guidance and Principles at 1.1.3 states “You should not engage any firm which asks you for money now or later, or which offers a No-Win, No-Fee conditional fee or litigation funding agreement.”
If my clients adhered to/heeded that advice none of them would be represented by me.
The government’s advice to victims of the Post Office, I suspect, tends to have a chilling effect on solicitors willing to act and will tend to cause the only port of call available to potential claimants for compensation to be Hudgells, Freeths or Howe & Co. I strongly doubt whether that is desirable, whether or not it is intended by DBT.
The damages/compensation claims of individuals such as Tracy Felstead and of Nichola Arch are self-evidently complex, both as personal injury claims and also as loss of employment and loss of future earnings claims. I have repeatedly been referred by Addleshaw Goddard, solicitors acting on behalf of the Department of Business and Trade, to their agreed “tariff” fee arrangements. At present, my perception is that attempted adherence to those rates, at least in respect of the claims of those on whose behalf I am instructed, fails to have regard to the true complexity of individual cases and is wholly unrealistic and also unreasonable.
More concerningly, solicitors with whom I have been having discussions, for the purpose of securing additional assistance with the object of expediting the evaluation and submission of claims, who are in principle willing to assist, are hesitant to do so (understandably) in the absence of assurances that it is commercially viable for them to do so. Accordingly, the stated tariff rates for legal costs operate, or may operate, as an economic barrier to entry for those firms of solicitors who would be willing to act for claimants for compensation. As a result this will tend to divert claimants and potential claimants to those firms who have agreed to work for the stated government (in my view unrealistically and uneconomic) low charging rates. That is unsatisfactory and concerning.
Without making too much of it, it is notable that the Post Office itself has engaged one of the largest and most expensive law firms in the country (in fact in Europe) and the government has retained both Dentons and Addleshaw Goddard.
It is obvious, at least to me, that the government, like the Post Office, should pay the reasonable costs of legal representation. That is to say, the same level of costs as assessed costs on the standard basis in ordinary High Court litigation.
To pretend that claims in the GLO compensation scheme are somehow ‘simple’ and straightforward, is both an absurdity and, at least in my experience, the very opposite of the reality. If the point requires elaboration, there are claims, such as Mrs Arch’s claim, that while in the GLO scheme are on true analysis claims for malicious prosecution. There should not be a dramatically different costs regime under the DBT GLO scheme from that that applies to the Overturned Convictions scheme, where the legal nature of the claims to compensation are the same. No principled basis for such a distinction is capable of being identified.”
Marshall contends that the failure to make adequate allowance for the fees incurred by claimaints and potential claimants acts as a “denial of/obstruction to justice”. Taken with the two other concerns Mr Marshall raised in his letter (published in Part 1 and Part 2 of this series), it seems we still have a serious problem with the existing compensation arrangements for victims of the Post Office scandal. This is nearly four years after the Post Office and government announced they would be setting up and running two of them (the HSS and OC compensation schemes), and two years after the announcement of the GLO compensation scheme.
As many people have asked – why are the perpetrators of this scandal in charge of compensating their victims? The Postal Affairs minister Paul Scully – who was in charge when all these schemes were set up – has already conceded that was a mistake. Postmasters could be forgiven for thinking it was deliberate.
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In Part 1 of this short series I quoted at length from a letter written to the Post Office Horizon IT Inquiry on 9 Jan 2024, by the barrister Paul Marshall. That blog post covered Mr Marshall’s concerns about Subpostmaster claimants in the Bates v Post Office High Court litigation with overturned criminal convictions.
The following blog post quotes from the same letter. In this instance Marshall is concerned with what he describes as the “complete absence of any principled approach to interim payments”.
It is another lengthy extract, but it makes clear an invidious and unfair situation. The only Subpostmasters with access to any guaranteed interim compensation are those who have had their convictions quashed. They are given £163,000. For everyone else (those in the Horizon Shortfall Scheme (HSS) or the Group Litigation Order (GLO) scheme – the vast majority of claimants) there is no policy of providing guaranteed interim payments.
Mr Marshall writes:
“I read with surprise and dismay the Department for Business and Trade [DBT] response to the Horizon Compensation Advisory Board 9th Meeting (29th November 2023) in connection with item 8 – GLO Scheme: “The availability of interim payments”. The DBT response that is recorded is that “The Department explained that it was willing to make interim payments based on partial claims where postmasters had an urgent need for them.” (The meaning of the expression “based on partial claims” is not entirely clear.)
In this, as in other respects and across different compensation schemes, the compensation arrangements are out-of-step with the requirements of justice and fairness as these are provided for, for example, by statute under the Civil Procedure Rules. The arrangements for interim payment of damages, first introduced under the Administration of Justice Act 1969, were for the explicit purpose of mitigating the hardship caused to claimants making well- founded personal injury claims by the long delays in receiving payment. From 1980 the arrangements were extended to all claims where liability was not in issue. The position under the DBT GLO scheme (and also “Overturned Convictions” scheme) is analogous to a civil claim where liability is not in issue, and the only question is one of quantum – how much must be paid to satisfy the claim(s) of the individual concerned for the injury and loss that they can show that they sustained as a result of the wrongful act(s)?
The legal principles in this regard are well settled and you will not consider it any discourtesy to remind you of them. The relevant test for a court to have jurisdiction to make an interim payment is set out in the Civil Procedure Rules at rule 25.7(1)(c). That provides that the court must be satisfied that “if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant…”.
Formally, of course, the DBT ‘GLO’ compensation scheme is ex gratia, but the compensatory principle (namely, to put a person in the position that they would have been but for the Post Office’s actions/wrongdoing) has been clearly expressed/restated in your Inquiry. There is no reason, as a matter of principle, why a claimant for compensation should not be treated analogically to a claimant in litigation and every reason why they should be, given that the ‘compensatory principle’ is essentially identical/materially indistinguishable.
CPR rule 25.7(4) provides that the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. CPR rule 25.6(2) confirms that a claimant may make more than one application for an interim payment.
Once the gateway criteria for making an interim payment are satisfied, the court should make an order for an interim payment unless there is specific reason not to do so: Test Claimants in FII Group Litigation v Revenue & Customs Commissioners (No2) [2012] EWCA Civ 57.
The important point is that the default position is that, subject to satisfying the gateway criteria under CPR 25.7(1)(a)-(c), a person claiming damages is in principle entitled asof right to receive an interim payment. The grounds for the paying party objecting to an interim payment under the rules are narrow and limited. Among these there is no basis for a court not to make an interim payment order because a claimant has not demonstrated their need – let alone urgent need – for such payment. Importantly in this regard, in Stringman v. McArdle [1994] 1 WLR 1653 the court confirmed that need is not a requirement for an interim payment, nor, for the same reason, for a further interim payment to a payment already made.
The purpose of the interim payment arrangements is to facilitate justice and to mitigate the unfairness of a claimant entitled to substantial compensation being kept out of their money simply because of the time that it frequently takes to fully evaluate an individual’s loss – delay occasioned simply by the mechanics of the evaluation and quantification and by the payment process.
The interim payment principle has particular importance and obvious application in circumstances where Post Office victims have suffered financial loss and injury over a very long period of time, extending indeed to the roll-out of Horizon in 1999.
In Eeles v. Cobham Hire Services Ltd [2010] 1 WLR 409, the Court of Appeal said that a reasonable proportion “may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of overpayment.” (Risk of overpayment is thus the principal constraint.)
In TTT v. Kingston Hospital NHS Trust [2011] EWHC 3917 the court held that a reasonable proportion meant not more than 90% on a conservative estimate of the amount that the claimant was likely to be awarded at trial as a capital sum.
So in the DBT’s response to the Compensation Advisory Board, that it was willing to make interim payments where there was “urgent need” demonstrated – and (seemingly) not otherwise, DBT parts company with legal principles of justice and fairness as these are given statutory effect under the rules of court.
It appears unprincipled, and requiring justification, for DBT to withhold compensation otherwise payable, in the absence of demonstrated “urgent need”. Introducing such a test suggests unfairness and a denial of justice, where the interim payments regime under the rules of court are explicitly aimed at facilitating those ends and thus reflect and give effect to general legal principle.
This is not merely an issue of desirability, it has a substantive aspect; a person who is required to formulate and establish the full scope and detail of their claim before any payment is made, is placed under pressure and is put in an impaired bargaining position – and, further, is kept out of money to which they are otherwise entitled (disregarding the point that the GLO scheme is ex gratia – that for this purpose is irrelevant). The reasons are perhaps too obvious to require elaboration. The effect is, that it encourages DBT, and, indeed, the Post Office in the other compensation arrangements, to make low opening offers. The resulting situation may readily result in unfairness because it exploits the consequences of delay and ‘litigation fatigue’.
I shall give two concrete examples of how the unavailability of proper arrangements for interim payments works injustice (in both the Overturned Convictions and GLO schemes).
Tracy Felstead was maliciously prosecuted by the Post Office in 2002 and was wrongfully convicted of theft. She was imprisoned aged 19. Her entire adult life, including most obviously her employment prospects, has been blighted by the consequences of wrongful conviction for theft. As a result of her deeply traumatic experience of prison, she suffers from severe PTSD and depression. Her conviction for theft was quashed in April 2021. The Post Office has been willing in June 2023 to make payment of a substantial proportion of her claim for general damages, as submitted with a full medical consultant’s report in January 2023. Despite an application having been made for Ms Felstead’s loss of earnings – limited to the period of the subsistence of her conviction between 2002-2021 (and thus disregarding any future losses) the Post Office has to date declined to make any interim payment on account of special/liquidated damages, despite the request for an interim payment being supported by an accountant’s letter and evaluation.
You will understand that the evaluation of special damages over a long period that has passed, regardless of the calculation of future losses, is a complex task of reconstruction, not least because of the general paucity of documents, but also because of the length of time that has elapsed. I have in recent months decided that it is strongly in the interests of my clients to engage the services of the specialist employment experts Keith Carter & Associates. Mr Carter is a very experienced employment specialist who recently has been engaged in assisting Sir Brian Langstaff, to whose inquiry (Infected Blood) he has given both written and oral evidence. The purpose of obtaining Mr Carter’s assistance is to reconstruct what Tracy Felstead’s employment profile would have looked like, but for the catastrophe that befell her in her wrongful prosecution and imprisonment in 2002.
To my mind it is profoundly unsatisfactory, and it might be said inexcusable, that there is no formal structured arrangement for the payment of interim payments where, as is almost too obvious to state, the subsistence of a criminal conviction for dishonesty over many years has operated to blight an individual’s employment prospects and earnings. In Ms Felstead’s case it is now 22 years since she was convicted.
The Post Office has made an interim payment in a substantial sum to one of my clients, but only in circumstances where they were faced with imminent eviction from their modest rented home – and where I infer the Post Office would not have welcomed the attention that that eventuality would have attracted from the media. The point is therefore that interim payments can be made, the Post Office and DBT are simply unwilling to make them in the absence of a demonstrated urgent requirement. Not doing so enhances the offeror’s (DBT’s/Post Office’s) negotiating position in making offers.
Mrs Nichola Arch was one of the first victims of the Post Office to give evidence to your Inquiry. She was suspended and dismissed from her employment as manager of Chalford Hill Post Office, Chalford, Stroud in October 2000. Most unusually, she was acquitted after a trial in the Bristol Crown Court in April 2002. Between those dates she lost her reputation and standing in her community and became the subject of vilification. Her experience almost drove her to suicide. Although having previously been a teacher and having tertiary education, she obtained work as a local authority care assistant. She had aspired to own her own post office and to run more than one branch in her locality. She suffers from morbidity, depression and serious PTSD and she recently underwent surgery connected with her long-term illness. She retired on grounds of ill-health. Her claim for general damages was submitted in the DBT “GLO” scheme at the beginning of July 2023. Her claim for special damages together with an accountants report was submitted in October 2023. No offer, whether interim or otherwise, has been made. Indeed no substantive response has been received. Mrs Arch’s circumstances are rendered particularly complicated because she not only lost property as a result of the Post Office’s actions in wrongfully prosecuting her, she was also subject to an IVA.
Mrs Arch has recently engaged Keith Carter & Associates to model her employment profile, but for the disaster of her criminal prosecution between 2000-2002 and its consequences for her health and upon her working life. Addleshaw Goddard on behalf of DBT have declined to agree to that course (which DBT requires approval for), as I understand it on the basis that other claimants in the GLO scheme have not sought to rely on similar evidence.
If I was to be discourteous, one wonders how the counterfactual of what Mrs Arch’s employment history might have looked like from 2000, without such expert assistance; is one to simply guess? In any event, my considered opinion is that such evidence is required to evaluate the true extent of her liquidated claims. It may take some time for that evidence to be finalised.
Next year it will be 25 years from the date that Mrs Arch’s hopes for a career as a postmistress were dashed by her malicious prosecution by the Post Office. She never recovered from her experience. It is profoundly unsatisfactory that as recently as November 2023, the position of the Department for Business and Trade was that it would make interim payments only in cases of “urgent need”. As I have suggested previously, withholding an interim payment, that on any view must be substantial, constitutes a denial of justice and is manifestly unfair, it is also contrary to ordinary legal principle as given effect in the CPR. Accordingly not facilitating interim payment is unjustifiable.
There is a compelling case to be made that every person wrongfully prosecuted by the Post Office should be presumed to be entitled to £600,000 as an interim award. That may satisfy the claims for compensation of some claimants, it will be insufficient for many (perhaps most) others, but it would be a step in the right direction.”
Since Mr Marshall wrote his letter, Alan Bates, the founder of the Justice for Subpostmasters Alliance has received his offer of compensation from the government, twenty one years after he was sacked. The offer is a sixth of what he asked for when he submitted his claim at the beginning of October. Bates called the offer “cruel” and “derisory”. I spoke to another Subpostmaster yesterday in the same (GLO) scheme as Alan Bates. They too have received an offer of around a sixth of the seven-figure sum they were asking for. Many of the campaigning Subpostmasters seem to have lost faith in the government’s ability to do the right thing. Judging by Paul Marshall’s letter, I’m not surprised.
Read Part 1 of What’s really going on with the Subpostmaster compensation schemes here.
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I’ve obtained a letter to Sir Wyn Williams, written by the barrister Paul Marshall. Sir Wyn is the retired judge who chairs the Post Office Horizon IT Inquiry. Paul Marshall represents, in his words, “some of those most grievously affected by the Post Office’s conduct”.
The letter is dated 9 January 2024. Whilst recent government announcements, prompted by an ITV drama series, may come to supersede some the concerns expressed in the letter, we should bear in mind that Marshall was writing more than four years after the Bates v Post Office High Court settlement which set in motion the haphazard compensation schemes various groups of Subpostmasters need to negotiate in order to get their hands on the money (and earnings potential) which was stolen from them.
This letter is evidence the Post Office and government continued, at least until very recently, to say fine words in public whilst, behind-the-scenes, playing games with peoples’ lives.
It’s a long letter, so I’ll divide the issues it raises into a series of blog posts.
Subpostmaster claimants in Bates v Post Office with criminal convictions
In this extract Marshall is outlining the case of someone with a criminal conviction who was a claimant in the civil case Bates v Post Office. Having had their conviction quashed, they pursued compensation. They initially accepted a paltry amount because of the Post Office’s claim that despite their conviction being quashed, Horizon evidence was not “essential” to their case. The Post Office and government would therefore count this individual as having settled their claim and accepted full and final compensation. I have added links and comments in square brackets for clarity where appropriate. Marshall writes:
“I have recently been asked to represent, and have agreed to represent, someone in the “Overturned Convictions” scheme…
I shall refrain from naming the individual concerned. In December 2022 they entered into a settlement agreement in the course of a mediation in which they were legally represented (not by me).
The Post Office’s position, in essence, was that the individual’s appeal was not opposed merely on pragmatic grounds and that other evidence existed that warranted prosecution, other than Horizon data alone, but that a further prosecution was considered not to be in the public interest.
The individual concerned had made a statement accepting that they had (improperly) taken Post Office money. It is unnecessary, for present purposes, to elaborate the (unsatisfactory) circumstances in which that statement was obtained by the Post Office.
At the mediation, the individual concerned felt under acute pressure to agree to settlement of their claim in consideration for payment of a modest sum (a fraction of the £600,000 offered by the government in September 2023 to all those convicted whose convictions had been quashed) when considered against the devastating impact that a criminal conviction for an offence of dishonesty has had upon them and upon their family, over many years.
Against the sum offered by the Post Office, the Post Office demanded that credit be given for a small amount of compensation received in 2020. That was at the direction of the steering committee of the group (GLO) claimants. That compensation was paid ex gratia out of sums paid by the Post Office under the terms of the December 2019 Settlement Deed, that otherwise stood solely and exclusively to the credit of the ‘Not Convicted Claimants’ in the GLO litigation.
In March 2023 I wrote to Minister Hollinrake MP at the Department for Business and Trade [DBT], expressing my view that such a deduction (actual or demanded), of which I was generally aware in the Overturned Convictions Scheme to be the Post Office’s position, was contrary to principle as a matter of law. The Department for Business and Trade rejected my view, as did the Post Office.
I am nevertheless satisfied that I was, and am, correct in my analysis [reader, he was], and that both the Post Office and DBT were wrong in theirs. There are two minor issues on this.
First, it exhibits a willingness on the part of the Post Office (and DBT) to contest meritless/bad legal points with some vigour and at some expense (it took until December 2023 to address it) – there are troubling echoes of its conduct of the Bates GLO litigation.
Secondly, the Post Office sought credit against payments made by third parties, not by it, which might be thought unattractive and grasping – certainly not disinterested and objective, as one might hope.
Without condescending to detail, that I believe to be unnecessary for present purposes, in recent evidence given before you in the Inquiry, it emerged that the person responsible for the investigation of the individual to whom I have referred did not accept or believe the account that they had given of their having improperly taken the Post Office’s money. They were nevertheless charged with theft. In the course of other evidence given to you, it emerged that the Post Office’s investigation was not properly conducted and that the alleged losses identified at the individual’s Horizon accounts were consistent with what may be conveniently termed “Horizon shortfalls”.
So the position, in short, is that the Post Office in a mediation contended that it had material that would have warranted prosecution, so as to take the circumstances outside the class of prosecutions where “Horizon data” was essential – the Court of Appeal’s chosen threshold requirement for allowing an appeal. But that material, upon scrutiny in the Inquiry, was revealed to be profoundly unsatisfactory as a matter of evidence. Had it been challenged, but for a guilty plea, it would have been ruled inadmissible.
Where does this leave mediations that have resulted in settlement, both in this specific circumstance and in similar circumstances where obtained upon an apparently false premise/representation? Further, what are the issues in connection with the conduct of the Post Office’s original investigations and their propriety and reliability? Perforce, only a tiny number of actual investigations have fallen to be considered by the Inquiry. But it is reasonable to infer that failure in the proper conduct of a Post Office investigation in this particular example is not an isolated instance, indeed, there is evidence in the Inquiry that that is so.
There is, I believe, a serious issue as to the stability of agreements reached upon a false premise. As a matter of the law of contract, vitiating factors include mistake and misrepresentation. How, going forward, are negotiated settlements such as these, entered into on a false basis, going to be treated/addressed? There is fertile opportunity for subsequent satellite litigation.
I have written to Herbert Smith Freehills [perhaps the biggest and most expensive law firm the Post Office retains] inviting the Post Office, in this particular instance, to agree to set the settlement aside. I am yet to receive a response. I am drawing the issue to your attention because I believe it gives rise to wider concerns. The circumstances, as these are now known, arise as a direct result of evidence given in your Inquiry.
It is of particular concern that the individual concerned was given to feel so pressured, and, if I might say so, ‘overborne’ in the mediation and left with what they understood to be essentially no choice but to settle on the only terms that the Post Office offered. I am told that those representing the Post Office on the mediation included Mr Simon Recaldin of the Post Office, and Mr Alan Watts, a partner in Herbert Smith Freehills.
More generally, the circumstances in this particular case raise important wider questions about facts and matters relied upon by the Post Office as causing other cases to fall outside the Court of Appeal’s chosen heuristic ‘is this a case where Horizon data was essential to the prosecution?’
Unless the relevant circumstances are explored in evidence before you in the Inquiry, it is not, as a matter of practical reality, possible to test or otherwise scrutinise in detail the ‘other circumstances’ relied upon by the Post Office as taking any particular case outside those where the Court of Appeal treats the conviction as unsafe.
It is only by fortuity that it has emerged that the Post Office investigator of the individual to whom I have referred did not believe the account that was given, that was otherwise said to constitute a confession and cause the circumstances, for that reason, to allegedly fall outside a “Horizon data” case.
One is driven to wondering how many similar cases there may be where Post Office investigations were flawed and their evidential product consequently unreliable and inadmissible? Given the extensive and substantial criticisms made by Mr Duncan Atkinson KC in evidence given by him, including absence of standard safeguards and procedures, such as those adhered to by the Crown Prosecution Service, and the absence of requisite independence of investigating and prosecuting agencies, there must necessarily be serious misgivings that, were such Post Office evidential material to be examined, it would not withstand serious scrutiny.
It was only as a result of your Inquiry that it emerged that the individual who investigated Janet Skinner’s alleged shortfalls did not believe that Janet Skinner had stolen anything. Miss Skinner was nonetheless charged by the Post Office with and prosecuted for theft. One is left with anxiety and misgivings about the propriety of any investigation undertaken by the Post Office.
I do not have answers to these substantial questions, but they are, I believe, both important and seriously troubling because they suggest – indeed disclose – a fresh injustice. Either something is to be done, or nothing is to be done. I should add that I am given to understand that the extreme pressure and isolation experienced by the individual to whom I have referred, to settle their claim for what they considered to be a seriously inadequate sum, is an experience shared by others. That is also troubling.
Further, I remain concerned that the arrangements to which I have referred raise an issue about the requisite/desirable level of independence of the Overturned Convictions scheme, bearing in mind that HSF also have ultimate supervision of the HSS (or “Shortfall”) Scheme (about which I also have concerns). I have long expressed misgivings about the level of requisite independence and transparency across all the three Post Office compensation schemes. Those requirements are fundamental, both to fairness and for both individual and public confidence.
The government has recently made some announcements about the number of settlements that have been reached. That matters little if the terms and circumstances of settlements reached are other than fair.
There is of course scope for further litigation arising out of the circumstances to which I have referred. That eventuality would be unfortunate.
I repeat here what I have said previously. There is a requirement for the compensation schemes for Post Office wrongdoing to be administered by a demonstrably independent body. The short-term difficulties will be offset by avoiding what may be anticipated as long term further problems. Any further resulting delay may be mitigated by payment of proper substantial interim payments.”
I know the individual Paul Marshall is referring to in the above letter, and I will write to them to see if they are willing to be identified. I will also find out what the government/Post Office response is to the issues Marshall raises, given they seem to have changed their attitude significantly on the back of Mr Bates vs The Post Office. Keep an eye out for the next blog post which will address Marshall’s view on the failures over interim payments to compensation claimants.
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In his first interview on the subject since leaving government, Paul Scully MP says former Post Office Chief Executive (2012 – 2019) Paula Vennells should “absolutely” lose her CBE which was awarded to her in the 2019 New Year’s Honours list.
“I’m a backbench MP now so I can say what I want, I think, reasonably. I think people do need to be held to account and that it includes Paula Vennells…. From what I see of it, the tactics used by the Paula Vennells-led Post Office were pretty horrendous and people need to be held to account.”
Scully also candidly admits the government should not have let the Post Office control the compensation process:
“If I had my time again I would have taken it in house and done it with the help of an independent arbiter. I think we were… the Post Office were trying to play catch up in that regard. They were coming up with their scheme…. I think by the time we realised this was going to be at risk of delay and complication, we’d gone probably too far down the line, but yeah I’d definitely have tried to manage it myself if I’d known that was the case.”
On the Horizon Compensation Advisory Board’s call for all Post Office convictions to be quashed, he said:
“In principle, I think that’s probably sensible. I know that just speaking to Nick Read and others in the Post Office, they were pretty clear that there were cases that Horizon had absolutely nothing to do with it and there were clear fraudulent cases within that. I think you do get to a point though… when you’ve just got to say “this is going on for so long” and “Are you really going to hold this up? You’ve already made enough mistakes for goodness’ sake over 20 years. Just get through it.” So I think there is a case to look at that… in principle I’m in agreement with it.”
It’s a wide-ranging conversation which gives some insight into what it’s like to be a junior minister with the job of attempting to put a serious wrong right.
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It is the question I have probably been asked the most over the years. The long answer is in the podcast I have recorded with Mark Baker (left in the photo above), a long-serving Subpostmaster and union rep, and Ron Warmington (right in the photo above), now Chairman of Second Sight, the forensic accountancy firm that went into the Post Office in 2012 and uncovered the sort of disaster which could very well be (and was eventually proved as being) responsible for serious miscarriages of justice. Between us, we cobbled together a list of 14 different destinations, which I have listed below.
The short answer to Where Did All The Money Go is that it was either disappearing out of branches due to customer fraud or staff theft or repeated mistakes benefitting a customer OR it was disappearing out of ancillary (IT and non IT) Post Office (and non-Post Office) systems due to fraud, mistakes outside the branch and non-Horizon computer error OR it was disappearing out of Subpostmaster pockets and into the Post Office’s bottom line due to Horizon-generated discrepancies which showed up in Subpostmaster branch accounts.
It is important to remember the Post Office had no real control over its internal accounting systems for the duration of its Horizon-related prosecution spree (cf the 2013 Detica report) and so it didn’t know where money was going, nor could it properly account for where it came from. Suggesting that double-entry accounting would have revealed an obvious positive entry corresponding to an obvious negative entry assumes the Post Office systems worked and the people operating them knew what they were doing. They didn’t, and even if they did, they were not going to give any visibility of them to Subpostmasters or their legal representatives.
The really, really short answer is that any money the Post Office was credited which it couldn’t make sense of ended up one of many internal suspense accounts.
It is therefore perfectly likely that the Post Office took money which rightfully belonged to its Subpostmasters and used it to bolster its bottom line. This was part-admitted by Post Office CEO Nick Read in a parliamentary committee meeting in January 2021:
Chair: But you have to do a profit and loss account, do you not, Mr Read, with money coming in and money going out? If victims were putting money into the Post Office, surely you know that money came in from somewhere. Did it just go to your bottom line? Nick Read: It went into a general suspense account.
What Mr Read didn’t tell the Committee was that after three years (according to one source I have spoken to), if entries in the suspense account were not identified and/or claimed, the cash was swept into the Post Office’s P&L account and counted as profit. Trebles on the back of Subpostmaster misery all round.
Have a listen to the podcast, and if it still doesn’t answer your questions, I would suggest approaching the Post Office with Freedom of Information requests. If you get a clearer answer, let me know.
Where did all the money go? The podcast list of 14 (non-exhaustive) possible destinations
Theft by the Subpostmaster.
Seems pretty obvious right? But why would a Subpostmaster steal their own money? Is it their own money?
Theft by the Subpostmaster’s staff
Same fingers-in-the-till as point 1, but important to note that the Subpostmaster would still, under the terms of their contract, be held liable for their assistants’ crimes.
Errors made at the counter by the Subpostmaster or one of their assistants
A customer deposits £1000, but the assistant keys in £10,000 by mistake. How easy or common was it for Horizon users to make errors at the counter, how easy were they to find and how were they resolved?
Over time, the Post Office changed its branch and Head Office operational processes to speed things up, but often, in doing that, they INCREASED the likelihood of errors that would harm their Subpostmasters. An example of this was when the Post Office phased out paying-in slips. Placing screen icons next to each other such as a banking deposit icon next to the withdraw cash icon.
Errors made away from the counter but within the branch
A Subpostmaster or member of staff could (for example) put the wrong amount of money in a pouch being sent back to a cash-handling centre. How was this resolved?
Errors made at cash-handling centres
What happens if £25,000 is recorded as being sent out to a branch and only £24,000 arrives?
Theft by customers
Sleight of hand, using dodgy cards or documents etc
Theft by non-customers
Criminals getting access to and exploiting weaknesses or loopholes somewhere in the Post Office/Horizon network. This could be external criminal gangs, or those who had infiltrated either the Post Office, Fujitsu or one of the Post Office’s corporate clients.
Could this happen, not be discovered and blamed on the Subpostmaster?
Examples of this type of loss would include thefts from ATMs and thefts carried out by employees of POL’s CLIENTS – or even by employees of Fujitsu (who we now know were routinely meddling with branch accounts without being required to keep any records showing what they’d done)… or even thefts by the Post Office’s own employees.
Manual account adjustment errors made remotely to Subpostmasters branch accounts by Fujitsu engineers.
An error by a Fujitsu engineer which caused a discrepancy in Subpostmaster’s branch account was documented during the civil litigation (see “The Smoking Gun“). The postmaster was then held liable for the discrepancy.
9 . Manual processing errors by the Post Office back end (eg at Chesterfield etc)
Where the Post Office or the wrong branch benefits at the expense of another branch due to errors made in manual document-handling processes.
Examples of this include credit entries – involving Post Office clients – that have found their way into Post Office Suspense Accounts and that should have, had they been properly investigated, been credited back to branches… but weren’t.
’One-sided’ transactions where a customer gets something for nothing…
A communications interrupt, or a power or hardware failure prevents a payment reaching a customer’s bank account through the LINK System, but the other side of the transaction, processed through Horizon, goes though properly. This error can also benefit the Postmaster.
Other types of losses caused by power outages or telecommunications interrupts
These being more likely in small, remote branches… untransmitted transactions were assigned to the branch processor hard drive, to await recovery. Hard-drives were never maintained or de-fragged. Corrupt sectors on hard-drives were common. Result… transaction data would be destroyed and no trace left. Leaving the cash account either in deficit or surplus as the recovery system could find nothing to recover. Data loss can also occur at the Post Office’s data centres.
Processing interrupts where a Post Office client has benefitted at the expense of the branch.
Transactions with corrupt data envelopes get diverted into a Post Office suspense account, but the Post Office’s processes were not robust enough to identify their origin and/or destination.
The Post Office benefits from Horizon’s ‘doubling up’ of apparent shortfalls.
Doubling-up was a serious problem with Horizon and appears to be have been down to some very bad coding with extreme consequences. Horizon’s ability to create money out of thin air which then becomes a subpostmaster debt was a real problem. If it happened in reverse, it would likely be written off.
Examples of shortages created by other bugs in Horizon.
Feel free to list any more possibilities in the comments below. And do listen to the podcast!
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Let’s have a look at another one of the frontline plods who made it their business to investigate Subpostmasters and recommend them (or not) for prosecution based on what, at times, seems to be imaginary evidence.
Gary Thomas (and this will shock you) started his career in the Post Office as a counter clerk, rising to Crown Office branch manager, before joining the Security Team in 2000. He left in 2012. Thomas therefore worked at the heart of the Post Office’s investigation and prosecution complex for 12 of the 13 years it was prosecuting its Subpostmasters on the basis of Horizon evidence, without ever once bothering to find out for himself just how reliable this IT data was.
Thomas had no previous experience of criminal investigations before joining the security team, but a three week residential course soon put that right. Before long he was carrying out investigations of Subpostmasters. Thomas describes the remaining training he got from the Post Office to be “minimal”, but he didn’t need to worry about the Horizon IT system, because, he told the Inquiry (in hopelessly garbled language):
“everyone said the same, but line managers, colleagues, senior lead team manager, the business, was that we had somebody who would give a witness statement from Fujitsu that all the cases seemed to suggest that there was no product integrity [problem?] with Horizon.”
Despite everyone saying the same, Thomas could not explain how this idea originated. It was must have been in the air they breathed.
Millar time
In his witness statement, Thomas wrote about conducting interviews at police stations because the Post Office investigators were “a well-known recognised interviewing authority with the police”.
Megan Millar, the Inquiry barrister questioning Thomas, asked him in what way the Post Office Security unit was a “well-known recognised interviewing authority”. Thomas didn’t know. He’d just heard someone tell him they were.
Thomas couldn’t remember personally recommending Subpostmasters should be charged with criminal offences. Then he was taken by Millar to his witness statement, in which he recollects disagreeing with the hapless Jarnail Singh in one instance over Singh’s gung-ho prosecuting decisions. Thomas wrote:
“I challenged these charges as I had previously advised Mr Singh that there are no Branch Trading Statements available. Not only did I challenge the suggested charges but I also suggest that an appropriate charge under the Fraud Act 2006 should be considered.”
Was this, wondered Millar, evidence Thomas did have input into prosecuting decisions?
“Not that I recall, no,” he said, then appeared to reconsider. “Obviously I have written this… where I’ve managed to get the next bit from, of suggesting an appropriate charge, maybe I was digging from friends, colleagues, or management or something.”
Dodgy data
On the subject of making data requests of Fujitsu, Thomas admitted that even if a suspect Subpostmaster was blaming their discrepancies on dodgy figures from Horizon, it wasn’t a given that ARQ (audit) data would be requested from Fujitsu. Like all the investigators at the Post Office, Thomas held a “belief” that “shortfalls could not actually be attributed to Horizon”. Furthermore if he had requested ARQ data, Thomas was not qualified to understand it, telling Millar he was “self-taught”.
Despite being a Disclosure Officer on many of his investigations, Thomas had no real idea of what this entailed other than writing things down and filing them, or as he had it: “I was told you had to… you know, everything had a place, if that makes sense.” Actual disclosure didn’t seem to come into it.
Julian Wilson, who died in 2016
Thomas was Lead Investigator in the case of Julian Wilson, who sadly died in 2016. Julian Wilson had his conviction for false accounting posthumously quashed in 2021. The Court of Appeal judges ruled:
“Evidence from Horizon was essential to Mr Wilson’s case. Based on the papers available from the criminal proceedings, there is nothing to suggest any ARQ data was obtained, the Post Office did not investigate any of the criticisms of Horizon made by Mr Wilson historically and during his detailed interview. There is no evidence to corroborate the Horizon evidence, there is no proof of an actual loss as opposed to a Horizon-generated shortage.”
What actual investigating was Thomas doing? Well, he searched Julian Wilson’s house (finding nothing), and did the “detailed interview”. The transcript of that has survived. During the interview Wilson started by raising the issue of problems with Horizon. He also told Thomas that he had reported them and said he had been told by his Federation rep of problems other Subpostmasters were having with Horizon.
Thomas responded that “those questions from postmasters weren’t founded in the Horizon system in that they’d been up to no good.” The garbled syntax, at least, is familiar.
Thomas admitted to Millar that making a comment like this during an interview with a Subpostmaster based on no evidence whatsoever was “completely wrong”. In fact, throughout his questioning at the Inquiry, Thomas readily accepted that he had been hopelessly misguided about a lot of his assumptions and appeared to come across as a humble, apologetic human being, “frustrated” that he did not have the tools in his locker to do a single proper investigation, trapped, as he was, in a web of somewhat moronic groupthink.
As Millar took him through the procedural oversights in Julian Wilson’s case, most of which had nothing to do with Horizon and a lot to do with an assumption Wilson was guilty (which became, due to Wilson’s guilty plea, a self-fulfilling prophecy), Thomas readily, almost enthusiastically, accepted his failures.
The best investigators they ever had
But just as Jarnail Singh’s attempts to portray himself as a witless victim were harpooned by contemporaneous documents, towards the end of Thomas’s evidence he was shown an email he sent a colleague in 2015 – six years after the formation of the Justice for Subpostmasters Alliance and two years after the Second Sight report which revealed flaws in the Horizon system. In the email (just published at my request by the Inquiry), Thomas tells his colleague he is “pleased” he has got his hands on electronic documents relating to Julian Wilson’s case. When his colleague asks why, Thomas replies:
“Because I want to prove that there is FFFFiiinnn no ‘Case for the Justice of Thieving Subpostmasters’ and that we were the best Investigators they ever had and they were all crooks!!”
At the Inquiry, Thomas accepted this was “disgraceful” and apologised to “absolutely everybody” because “I’ve labelled absolutely everybody, so I can’t defend it”.
No, but you wrote it.
The Wilson family, with Karen holding a photo of her beloved Julian on the day his conviction was finally quashed
I asked Karen Wilson, Julian’s widow, what she thought of Thomas’s evidence. She told me it made a change to hear from someone at the Post Office who wasn’t suffering from memory loss. She also credited Thomas with “honesty” and showing “some regret” for his actions. Then, said Karen:
“When the emails at the end of the evidence came up on the screen in respect of the “Case for the Justice of Thieving Subpostmasters” and that they were “all crooks” my doubts began to surface, as did my anger at what happened.”
She remembered Julian telling her about the “cruel interrogation” Thomas put him through, adding:
“I shall never ever forget the words said to Julian when the confiscation order was served upon us and we pleaded with the Post Office investigators as to how we would live and eat. We were told “live off the money you stole”. Sort of fits with the mindset that they appear to have had, doesn’t it?”
The various Post Office people we have heard from in recent weeks have been at pains to point out that if only someone had told them there might be problems with Horizon then everything would have been different. The reality, as evidenced by the contemporaneous documents, was that they were both malicious and incompetent. It was far easier to assume guilt and use their legal firepower to abuse the criminal justice system by pushing innocent but desperate people into a place where pleading guilty plea seemed like the least worst option.
Difficult and traumatic
There is a coda to the Thomas story. In 2021, four years after he left the Post Office and a couple of weeks after 39 Subpostmasters had their convictions quashed at the Court of Appeal, Gary Thomas wrote a quite extraordinary email to the Chief Executive of the Post Office, Nick Read. In his email (also just published by the Inquiry), Thomas said:
I was employed to carry out numerous roles over my 32 year career and a Post Office Security Manager was one of my roles I was employed in for around 10 years. During this time I carried out several criminal investigations interviewing suspected Criminal Offences by Postmasters along with my colleagues. This included PACE tape recorded interviews both voluntarily and following individuals being arrested and at Police Stations. The arrests were based on evidence both myself and colleagues would present to the Police stating the frauds were conducted through the Horizon Computer System. I now know that all this evidence was obviously flawed and without substance. The Post Office in my opinion therefore at the time blatantly lied and duped both me and colleagues into producing incorrect evidence to the Police, submitted committal papers to both the CPS and Post Office Law department that resulted in Criminal Trials and Prosecutions.
The past few years since this scandal has been brought to light under the “Justice For Postmasters” have been to say the least difficult and traumatic. I have to live with the fact I gave evidence under oath in several Courts swearing on the bible each time and now knowing this was incorrect and lies. My family and myself have been subjected to abuse and comments that I had given false evidence that was now proven to have been known yet hidden by the Post Office board of that time.
I took redundancy from Post Office Ltd in 2017 after 32 years loyal and committed service and now have to live with all this every day as do my other Security colleagues that I have recently spoken with. We even had a proceeds of crime unit within Post Office Ltd that ensured some of these individuals lost their homes and families. In fact my yearly objectives that were bonus worthy at the time were based on numbers of successful prosecutions and recovery amounts of money to the business. I had some instances of these Postmasters commmitting suicide, which now sits somewhat on my conscious because of my employer. How do you think I deal with this and now actually sleep at night now knowing my actions that were backed and supported by my employer has affected the said Postmasters but also the individuals you employed to conduct this role.
I am writing to you so you also realise the effect this has had on not just the Postmasters affected but also on the employees directed and instructed by their employer Post Office Ltd to perform the Security / Investigation role at this time.
Can I ask the question and enquire why we have all been completely cast aside and left with not so much as a letter of communication or an apology whatsoever ?
Whilst compensation is being correctly awarded now to these Sub-Postmasters, I feel the employees instructed to conduct these prosecutions, arrests and searches have been completely overlooked.
I will await your response before taking further advice from my Solicitor.
As the tiniest violins play for the “cast aside” investigators, consider the moral bankruptcy in awarding staff bonuses based on the number of successful criminal prosecutions and cash recoveries they make (corroborated in fellow investigator Dave Posnett’s evidence). No wonder Gary and his mates were keen to bang up the likes of Julian Wilson and steal all their assets.
Nothing has changed. This year the Post Office senior leadership team awarded themselves bonuses for the work they did assisting the public inquiry: cash in whilst you are creating a disaster, cash in as you watch it unravel.
And note that Thomas’s mask of righteous anger slips towards the end of the email, as something else comes to the fore. His cri de coeur of abuse and trauma has suddenly seemed to become a none-too-subtle demand for compensation. Is he also looking to screw a few more quid out of the scandal, this time via his former employer rather than the vulnerable Subpostmasters he considered “crooks”?
At the inquiry Thomas was keen to insist his letter had been misinterpreted by the Post Office (which internally called it “an attempt to negotiate a payment”), and that all he was after was an apology. Reading the contemporaneous document again… it doesn’t really look like it, mate.
Maybe Thomas is genuinely contrite about his role in harming so many others. If so, I wonder, other than sending a few self-pitying emails, what he’s actually done about it?
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Publicly, the government has said it is determined to compensate Subpostmasters affected by the Post Office scandal “as soon as possible”. Behind the scenes it seems determined to drag things out to a ridiculous degree.
Earlier this year both the Post Office and the government decided that money gifted to Subpostmasters with criminal convictions, by other Subpostmasters, should count against any compensation they receive from the government when/if those convictions are quashed.
Four years ago today the Post Office settled with 555 Subpostmasters who had taken it to the High Court as part of the Bates v Post Office class action (known in this country as a Group Litigation Order – or GLO). Sixty-one of the claimants had criminal convictions. Under the terms of the settlement (which the claimants’ lawyers, Freeths, initially told its clients it couldn’t see on grounds of confidentiality) those 61 were expressly given nothing by the Post Office. Clause 7.1.3 of the settlement agreement states:
“as part of the settlement set out in this Deed, the defendant has not made, or agreed to make, any payment to, or for the benefit of any Convicted Claimant.”
In 2019, the GLO claimant steering committee, comprising former Subpostmaster Alan Bates and his advisor Kay Linnell, secretly decided to share out the circa £11.5m they ended up with (once funders’ and legal fees had been deducted from the £57.75m settlement) between the entire claimant group, rather than leave the convicted claimants with nothing.
The cash that the 61 convicted Subpostmasters received was therefore effectively a gift from the non-convicted claimants. This was, according to Freeths (in a letter sent to convicted claimants in July 2020) in order to be “fair and consistent across the group”.
Whatever the rights and wrongs of this (and I happen to think it was right), there was (or at least there should have been once the settlement agreement became public in 2020), no doubt as to the status of these payments.
It’s yer money I’m after, baby
Fast forward to 2023 and for some inexplicable reason, the Post Office and government decided that if applicants to the Overturned Conviction compensation scheme were members of the GLO claimant group, the payments they received from their fellow claimants should count as compensation made by the Post Office, and therefore be debited from their compensation pot.
The government seemed to think this was the “fairest available” way of dealing with the issue. The fact it would end up saving them money was, of course, the furthest thing from their minds. In fact, argued the government (in one position paper I have seen), if they accepted the settlement cash was a gift, it:
“would mean that each convicted claimant would receive the amount of their agreed losses plus a gift. However each not-convicted claimant would receive the amount of their agreed losses minus a settlement payment, which is not compensated.”
The government felt this “would be wholly unfair to that group”.
Lawyers for claimants on the Overturned Conviction scheme did not agree with the government’s view.
Dyson’s decision
Former judge Lord Dyson, who has already been working on various other compensation issues between the Post Office and some of the claimants, was asked to make a decision in what’s known as an Early Neutral Evaluation (ENE). This is usually non-binding, but parties can agree to be bound by any decision before starting the process. After receiving submissions, Dyson did his ENE and came down in favour of the convicted claimants, stating:
“the assessment of the Convicted Claimants’ damages should be made on the basis of the facts as between the Convicted Claimants and POL [Post Office Ltd] and without regard to the position of any third parties, including the Not Convicted Claimants.”
Consequently:
“I consider that the Convicted Claimants are not required to give credit for the sums they have received from the Not Convicted Claimants… payments that were made to Convicted Claimants out of the Cash Settlement Sum: are not to be taken into account in assessing damages payable”
The barrister Paul Marshall made submissions to the ENE on behalf of claimant Subpostmasters. I asked him what he made of all this. He replied:
“the Post Office’s position on what may be called “clawback” of sums received as compensation by those convicted on prosecution by the Post Office whose prosecutions were (subsequent to the Group Litigation) quashed on appeal, a position that to my surprise was shared by the government, was to my mind misconceived as a matter of legal principle from the outset – for reasons I explained in some detail to Minister Hollinrake in March 2023.
“The Post Office’s willingness to incur substantial expense in contesting an issue on grounds that to my mind, as a matter of law, were plainly without merit, is disappointing. The Post Office’s approach is, however, entirely consistent with the Post Office’s approach to claims against it by its victims since the time at which Second Sight was instructed in 2012 – and with which many will be wearily familiar. It does not sit easily with the Post Office’s (or the government’s) publicly avowed intention to pay full and fair compensation to the Post Office’s victims. It also illustrates the substantial difficulty encountered by Post Office victims in securing proper compensation.”
Post Office minister Kevin Hollinrake this morning told me:
“It’s really not about ‘reducing Subpostmaster compensation’ and I think it’s wrong to imply that it is. The total amount of compensation being paid has never been a consideration in any of the conversations I’ve had on this matter, the only factors have been parity, fairness and doing whatever we can to increase the pace of resolution.”
I have asked the Post Office for comment.
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There has been some rank incompetence on display from various Post Office witnesses over the course of this inquiry, but I think we’ll have to go some way to find a worse performance than this.
We know from the witnesses during Bates v Post Office and the Inquiry evidence we’ve heard over most of 2023 that the Post Office is stuffed to the gills with lifers, plodders and gormless apparatchiks inexplicably promoted into positions way beyond their ability. Unlike most of them, Jarnail Singh did not rise to middle-management after starting his career as a counter clerk or a postie. He is a lawyer, and was once the Post Office’s Head of Criminal Law, making life-changing decisions about Subpostmasters, based on his 16+ years of experience working in the Post Office’s prosecution department.
Giving evidence over two full days, Singh revealed himself to be an exceptionally dangerous man, inhabiting a fantasy world manufactured by a priceless combination of the Peter Principle and the Dunning-Kruger effect. He was also self-defeatingly slippery to such a degree that when he was asked if he was the Head of Criminal Law at the Post Office, his answer was:
“I wasn’t head of anything, to be honest with you. I just went in as a challenge, as an opportunity and I can reassure you I was not Head of Criminal Law. I think the outside world did, probably did [think I was], because I was the only criminal lawyer and I think originally they wanted Rob Wilson to go in, and at the last minute he dropped out, and I was put forward and I think in the last minute, in the last… I think this post was on 1 April 2012 and I think I was more or less told the end of March, probably the middle of March, “Do you want it?” And I considered it, went to see Cartwright King, I liked it and I knew it would be tough, so I took that opportunity as a challenge and that’s what I did.”
In 2012, Mr Singh took over from Rob Wilson, the Post Office’s Head of Criminal Law when the Post Office split with Royal Mail in 2012. Wilson went to Royal Mail and Singh was left as the only senior lawyer in the department. He may not have had the title Head of Criminal Law, but he was, in all respects, its head of criminal law. Many of Singh’s answers were like this – forthright denial of something, followed by obfuscatory guff and then an oblique admission or, more usually, a change of subject.
A glittering career
Singh joined the Post Office as a legal executive in 1989 in the conveyancing department. He passed his Law Society finals whilst working at the Post Office and was admitted as a lawyer in December 1992. In September 1993 Singh transferred to the Post Office’s litigation department, working first on civil litigation. He became a Post Office senior criminal lawyer in 1995, when he transferred to the Prosecutions Department.
At the time the Post Office prosecutions department had eight senior lawyers, and, according to Singh, “three or four legal executives, three or four admin staff, and four or five secretaries.” This was all overseen by a Head of Criminal Law.
Jason Beer KC, the barrister asking questions on behalf of the Inquiry, took Singh to his witness statement. Singh had stated he was “the” senior lawyer on the criminal law team.
“No, well, maybe “the” needs to come out”, replied Singh, simultaneously admitting the inaccuracy and suggesting a correction which didn’t make sense. It set a standard for coherency which Singh maintained for the rest of the day.
Singh was intially line-managed by two Heads of Criminal Law. First was Mike Heath, then the hapless Rob Wilson until the Royal Mail split from the Post Office in 2012. Thereafter Singh somehow found himself head of an empty department, the only lawyer in the Post Office’s criminal law team, working with Hugh Flemington, the Head of Legal and Susan Crichton, the General Counsel. Singh called Crichton “a lovely lady, and Hugh, we got on really well. As and when we needed it, needed them to discuss matters, I did.”
Singh says he complained to them about his workload, and this, he claims, is how most of the Post Office’s prosecution function came to be outsourced to a legal firm called Cartright King. But the Post Office still needed Singh to sign off on prosecutions at their end.
Whilst at the Post Office, Jarnail Singh presided over the prosecution of a number of innocent Subpostmasters. When Jason Beer pointed out that his witness statement failed to “accept any personal responsibility for any mistakes made”, Singh replied with what I am sure will become an apology for the ages, and is worth repeating in full:
Singh: Well, obviously, I… I’m very grieved… Beer: That’s a different issue. Singh: …and I’m embarrassed and sorry. I mean I think maybe we ought to start by me apologising directly to the Subpostmasters. Obviously, I do, you know, feel their pain and hurt and I can feel the same. And I don’t… I’ve never met any of them. My basically employment of job entailed, or my role entailed the paperwork I received, I assessed it in line with the law, the evidence, the public interest, and whether it was appropriate for charges to go before the courts. So, in that respect, you know… I didn’t [do] the complete job, I didn’t do the investigations, I didn’t know anything about Horizon in the sense about how it operated had a witness statement to actually explain and then we had the barristers in turn to approve it, and then it went before the judge to deal with the enforcement side of things, if it needed. So, in that respect, of course I feel very upset and aggrieved that it had gone so far, because the whole idea of becoming a lawyer wasn’t to do any wrong, and I certainly… the… I didn’t want to be here today. I wanted to enjoy a long legal career within the Post Office and whoever, and now to carry on doing the next stage of my life.
The incoherence continued. Beer asked if Singh’s witness statement sought to create the impression of a diligent lawyer:
“acting with the utmost professionalism at all times, but of sorrow and being hurt after the event because, if only you had known about Horizon, everything would have been very different?”
Singh replied:
“Absolutely not. I am not that sort of person. It’s not the way… you made me come across wrong. I take full responsibility for the… you know, the hurt and the sorrow people [unclear] and I think… I was actually going to actually apologise to Julian Wilson’s family, seeing that he’s not here to see that his good name has been put intact and things have been put right.”
Julian Wilson
Julian Wilson was prosecuted and convicted on Singh’s watch. He died in 2016. His conviction was quashed in 2021. I very much doubt that means “things have been put right”, but hey, Jarnail, you go ahead and nearly apologise to his family.
During his evidence, Singh said it “hurt” to prosecute Subpostmasters because of the anguish he knew it caused them. Beer took him to an infamous email written by Singh on 21 October 2010, a day after the conviction of Seema Misra, whose husband first introduced me to this story. The email is called Attack on Horizon. In it, Singh writes:
“We were beset with unparallel degree of disclosure requests by the Defence. Through the hard work of everyone, Counsel Warwick Tatford, Investigation Officer, Jon Longman and through the considerable expertise of Gareth Jenkins of Fujitsu we were able to destroy to the criminal standard of proof (beyond all reasonable doubt) every single suggestion made by the Defence. It is to be hoped the case will set a marker to dissuade other Defendants from jumping on the Horizon bashing bandwagon.”
In his witness statement, Singh said he had input from a barrister on how to word the statement, and that he was instructed to write it. He couldn’t say how the barrister had helped him word the statement, and when asked who instructed him to write it, he named Phil Taylor, one of the legal execs in his department. The email is sent to senior lawyers and investigators within the Post Office, including General Counsel Susan Crichton. During his evidence, Singh claims he was given a distribution list, and didn’t choose the people it was sent to, suggesting “I don’t know any of them.” Beer seemed bemused by this, but let it pass. Then he asked:
Beer: So… if you didn’t pick the distribution list, you picked the subject title of the email? Singh: I don’t know… Beer: You…? Singh: Well… Beer: Or was that dictated to you? Singh: If there is… it was dictated to me.
Singh was unable to say who dictated it to him. Beer suggested he viewed the Misra case as an attack on Horizon, so giving the email such a title “would come naturally” to him.
“Absolutely not,” replied Singh. Beer asked him if he didn’t who did view it as an attack on Horizon?
Singh swore blind he did not know. “So you’re typing an email…” “I didn’t type it.” Singh countered.
Beer took stock. Singh had been told to write an email, headed with a title he didn’t agree with dictated to him by someone he couldn’t remember, which he didn’t actually type and then sent to a distribution list of people he didn’t know.
“Is that where we’ve got to?” asked Beer, a little incredulously. “I don’t know whether it’s an attack on Horizon. I’ve got no stake in Horizon, I don’t even know how it operated or anything of that nature.” replied Singh, before going off on a long ramble about the Misra case. Beer eventually interrupted him. “So the man that dictated the email that says Attack on Horizon is the wrong person to ask why the case was viewed as an attack on Horizon? Is that where we’ve got to, Mr Singh?” Singh replied “I think so”, before launching into another ramble.
By this stage Beer was under no illusion he had an idiot on his hands, but one who had a natural ability deflect and obfuscate everything which came his way. Beer gave Singh a few more bites of the cherry before trying to nail him down:
Beer: Did somebody else type an email which you cut and pasted into this one? Singh: No, no, no. Beer: No. Okay, hold on… Singh: They dictated it. Beer: Who dictated it? Singh: I don’t know. I mean I don’t know, there was probably various people over… Beer: So, a collection of people? Singh: Probably, yes, and I think it was approved by… Beer: Who are the possible candidates for dictating your email? Singh: It was… this wording was approved by Robert Wilson, Rob Wilson, Head of the Criminal Law Team. […] Beer: So you said it was approved by him? Singh: Yes. Beer: Was he one of the dictators? Singh: I don’t know whether he did or not. To be honest with you… to be honest, I… I’m not here to name names. I mean … Beer: I think you just did. Singh: I did, because… Beer: Because I asked you? Singh: Yes. You asked me and I am here to assist and help.
Seema Misra
Unfortunately Jarnail Singh could only provide help in the same way a cat can help you write an email. Shortly after sending his dictated message, Seema Misra was sentenced to nine months in custody. Of this, Singh says:
“To hear that she was sentenced to prison sort of hurt me quite badly. I mean, for two or three days.”
Poor bloke. Two or three whole days. Then what? Beer wondered if the language in Singh’s email was “indicative… of a degraded and debased prosecutorial culture within your office?”
Singh replied: “No. No, I wouldn’t. Look, Mr Beer it’s your job to ask that but it’s not, no.”
Beer tried again: “The last paragraph where you say: “It is to be hoped that the case will set a marker to dissuade from jumping on the Horizon bashing bandwagon”, who within the Post Office held that hope?”
“Well, certainly not the Criminal Law Team. Certainly, I didn’t.” said Singh, looking at the words which had been dictated to him and which he had dictated and bore his name which he didn’t believe.
Who did hold that hope, wondered Beer?
“Well, whoever dealt with the case,” replied Singh, who dealt with the case.
Singh continued to go off on long perorations about how upsetting prosecuting people was, claiming at one point that he couldn’t have done it if he’d “had to go to court and actually physically see these people, then I wouldn’t be able to do the job.”
Luckily for him, the ruining of peoples’ lives “was a paper exercise” which made things much easier.
Beer asked a final question on the topic, suggesting the attitude and the language of the Attack on Horizon email was entirely at odds with his professional duties.
Singh: Well, I… well, look, in hindsight, you can say all sorts of things. The thing is… Beer: Well, I’m saying that and I’m asking you the question. Singh: Well, I don’t know what… are you asking me to… what are you asking me? Please ask me.
Beer tried again, eventually getting the admission that “of course” Singh’s email was at odds with Singh’s professional duties. “Of course it is,” said Singh, who then began to complain about Beer’s line of questioning, stating:
“I am just sort of feeling so aggrieved that you’re asking me this because that’s not the idea of… you know, it was a challenge to qualify as a lawyer and I don’t… the last thing I wanted to finish this off was something like that.”
Singh was taken to a December 2013 email. This was five months after the Clarke Advice had been issued by Simon Clarke of Cartwright King, calling into question all Post Office prosecutions on the basis of Horizon evidence. All Post Office prosecutions had been stopped. Singh wrote:
“Any case begun now will attract some type of Horizon issue because this is the passing bandwagon people are jumping on. When we have a few wins under our belt the Horizon challenges will melt away like midnight snow.”
Beer asked Singh why he formed that view – that Horizon was a “passing bandwagon”. Singh replied:
“I don’t know. I had… it’s a sort of… this isn’t just one person, this… we worked as a team, because there was so much going on, it was a team effort team view. It wasn’t a decision made by me. It was a decision by people working on it, and not only internally but externally. They were people with a lot of experience in this type of work. So this is not a personal view. It was the view, the general view, put in that… put in that answer.”
Beer pointed out that it was Singh’s email. Singh agreed, but responded that “we worked as a team.”
Beer wondered: “Did someone dictate this email to you?
“Possibly.” Singh replied.
It was what it was
And so it went on. Singh couldn’t explain why he’d written what he’d written, but absolutely denied it was because it was he didn’t have a justification for the crassness of the email. It was not that. It was just that he was “struggling in the sense that I can’t explain to what happened in the year 2013, and we’re in the year 2023, on to ’24. At that time, you know, the situation was what it was.”
Poor lad
Singh then came up with the suggestion that he might actually have been more wronged than the Subpostmasters he prosecuted, saying: “I feel aggrieved about it as much as they do, probably… even more, because I was in a position to do something and I didn’t.”
Which is, I think, a bold claim.
I am looking forward to seeing what action the Solicitors Regulation Authority decides to take in the light of Singh’s evidence.
One correspondent wrote:
“Mr Singh is clearly as mad as a three-cornered bat. The fact that he has held a senior position at the Post Office for most of his working life tells us something. If we didn’t know it already.”
Another said “Jaw dropping. Hard to tell where the stupidity ends and the malice begins.”
Thanks to secret emailer Nigel Derby for his help with this piece.
The journalism on this blog is crowdfunded. If you would like to join the “secret email” newsletter, please consider making a one-off donation. The money is used to keep the contents of this website free. You will receive irregular, but informative email updates about the Post Office Horizon IT scandal.
The evidence came from Dave Pardoe, a former Senior Security Manager, invested with the power to sign off on Subpostmaster prosecutions.
Pardoe’s evidence followed a familiar line – that Post Office investigators were told they shouldn’t consider Horizon as the source of a discrepancy at a branch. Then he said:
“There was a persistent sentiment that the system was fit for purpose. I was never in a meeting when it was discussed with me the concept of putting the brakes on prosecution activity. It’s clear that there was a fear that, to do that, would immediately cast doubt on prosecutions that had been completed, that had gone before.”
Pardoe is the first Inquiry witness I can recall to suggest there was a “clear” awareness within the Post Office that looking too closely at the Horizon IT system might uncover miscarriages of justice.
This goes to the heart of the Post Office scandal. In my view it should be both the main purpose of the Inquiry and the ongoing Metropolitan police investigation. It’s one thing to erroneously prosecute innocent people on the basis of false information. It’s another thing to keep on prosecuting more innocent people because the reputational cost of stopping has become too great.
Spelling it out
Flora Page and Ed Henry KC
In their closing statement to phase three of the Inquiry, Ed Henry KC and Flora Page, instructed by Hodge, Jones and Allen, set out the threshold for a conspiracy to pervert the course of justice, which, they say, is committed “when two or more people agree to embark on a course of conduct which has a tendency to, and is intended to, pervert the course of public justice.“
Henry et al note that “a person may be attributed with knowledge if the evidence suggests that they “deliberately shut their eyes to the obvious, or refrained from inquiry because they suspected the truth but did not wish to have their suspicion confirmed“.”
It could be argued that Pardoe’s description of a corporate “fear” that “putting the brakes on prosecution activity” could “immediately cast doubt on prosecutions that had been completed”, falls squarely into the above definition.
The Ismay-Wilson axis
Pardoe’s recollection is backed up by internal Post Office documentation. On 3 March 2010, the Head of Criminal Law at the Post Office, Rob Wilson, issued an internal email complaining about not being invited onto a conference call about problems with Horizon. A memo of the meeting concluded a thorough investigation of the Horizon system should be commissioned. Wilson had a problem with this, though he starts well, stating:
“If it is thought that there is a difficulty with Horizon then clearly the action set out in your memo [an independent investigation of Horizon] is not only needed but is imperative.”
But then he goes on to write:
“Such an investigation will be disclosable as undermining evidence on the defence in the cases proceeding through the criminal courts. Inevitably the defence will argue that if we are carrying out an investigation we clearly do not have confidence in Horizon and therefore to continue to prosecute will be an abuse of the criminal process. Alternatively we could be asked to stay the proceedings pending the outcome of the investigation, if this were to be adopted the resultant adverse publicity could lead to massive difficulties for POL [Post Office Ltd] as it would be seen by the press and media to vindicate the current challenges. The potential impact however is much wider for POL in that every office in the country will be seen to be operating a compromised system with untold damage to the Business… To continue prosecuting alleged offenders knowing that there is an ongoing investigation to determine the veracity of Horizon could also be detrimental to the reputation of my team.”
Note Wilson’s concern – “adverse publicity” and “reputation”. Not justice. After Wilson’s intervention, no independent investigation was carried out for another two years. Wilson’s sentiments were echoed on 2 August 2010 by the Post Office’s Head of Product and Branch Accounting, Rod Ismay, who was tasked by the incoming managing director David Smith to write a report rebutting the challenges to Horizon. Ismay falsely starts his report by claiming it is “objective” report. He concludes:
“It is… important to be crystal clear about any [independent Horizon] review if one were commissioned – any investigation would need to be disclosed in court. Although we would be doing the review to comfort others, any perception that POL doubts its own systems would mean that all criminal prosecutions would have to be stayed. It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”
On giving evidence to the Inquiry, Rod Ismay tried to suggest that although his name was on the report, he was barely the author at all, more of a cipher for other peoples’ assertions. When asked where he got the above paragraph from, he replied:
“That narrative would have come from speaking to somebody in the Criminal Law team… I imagine it probably came from a conversation with Rob [Wilson].”
When Rob Wilson came to give evidence, he tried to suggest his 3 March 2010 email should essentially be disregarded as an “overstatement” of the situation, and that he had “overreacted to being excluded from what I saw as [a matter] being critical to me as the Head of the Criminal Law Team.”
Yet two years later, on 28 March 2012, Wilson’s colleague in Post Office’s legal services, Chris Darvill, wrote to the Post Office General Counsel Susan Crichton, reporting that Wilson was still holding out against an investigation of the Horizon system. Darvill told Crichton her Head of Criminal Law:
“has concerns regarding the PR implications over an audit being conducted… Rob also has concerns regarding the costs that would be incurred… Rob remains firmly of the view that an audit should not be carried out. In his words: “POL has to grit its teeth and get on with prosecuting and defending civil actions”.”
When this extraordinary take on the situation was raised at the Inquiry by Jason Beer KC, it led to the following exchange:
Jason Beer: Was it your view that POL should just grit its teeth and get on with prosecuting people? Rob Wilson: I think so, yes. Jason Beer: Just carry on regardless? Rob Wilson: Well… Jason Beer: More important than whether or not there was a problem with the system was public relations and cost? Rob Wilson: Well, I didn’t believe that we had a problem with the system because of the Rod Ismay report.
In 2012, Wilson’s essentially mad position was overruled by Crichton, who brought in the independent investigators Second Sight who, under great pressure, eventually blew the whole scandal open.
Yesterday, when Pardoe was asked whether the “persistent sentiment” he described came from his boss John Scott, (the former Post Office Head of Security), Wilson agreed it did, but then said:
“The one I remember probably with greater clarity is the Paula Vennells communication… I’m sure that that preceded known media interest that was imminently about to go public, and I’m sure that there was some form of written communication to say, you know, “Look, folks, this is likely to be out within the public domain and the approach we’re taking is this, this, this and this”, to paraphrase.”
Counsel to the Inquiry picked this up. “So the whole organisation was told “There’s going to be something in the media about Horizon and it is to be disregarded because everything is robust” and…”
Pardoe replied: “I certainly recall a… reading a written rebuttal and position that the business were adopting, yes.“
Pardoe was asked if this communication from Vennells had come before Rebecca Thomson’s seminal Computer Weekly article in 2009, which put the Horizon scandal into the public domain. Pardoe agreed it might, but in 2009 Vennells was the Post Office’s Network Director. She didn’t become Managing Director until very late in 2010, so Pardoe’s memory might be faulty, or Vennells might have been the author of the communication, but I think his recollection of the fact of the company-wide communication from on high is significant, because it makes a connection between:
a) the “clear… fear” within the Post Office that looking too closely at Horizon might reveal miscarriages of justice, b) the determination to defend Horizon at all costs, c) the fact it was coming from the very top.
“The more I see and hear from the Inquiry, then the further I despair. It strikes me that no one, at a suitable level of seniority, had the conviction and gumption to say enough is enough and to drive a timely, truly independent review whilst ceasing all prosecution activity and having the courage to be prepared to support the application and lessons of a truly independent Horizon review to both historic prosecutions and non-prosecuted repayment of accounting shortfalls. As someone that held several investigatory roles in the Post Office, I feel utterly deceived.”
Pardoe was less keen to admit to much in the way of self-deception. During his evidence he was taken to several documents dated between 2010 and 2014 which made explicit some serious technical problems with Horizon. Pardoe accepted he would have seen these document and was undoubtedly senior enough to do something about them. Sadly he didn’t.
Pardoe was also shown a 2013 report which, again, he would have seen at the time. It stated that a Procurator Fiscal in Scotland had declined to let the Post Office proceed with a prosecution of a Subpostmaster on the basis of “issues with Horizon”.
Pardoe slipped into “don’t recall” mode.
Janet Skinner
Janet Skinner
Finally, Ed Henry KC brought up Janet Skinner’s case. Janet had huge problems with the Horizon system at her North Bransholme branch in Hull. She had been reporting them to the Horizon helpline, making 116 calls in total, but was nevertheless suspended over an alleged £60,000 discrepancy and was prosecuted for theft.
Mr Henry pointed out that Janet’s successor at the same branch, Wendy Lyell, survived a few weeks before she too was arrested on suspicion of theft when the same Horizon system generated more discrepancies.
It transpires that one of Pardoe’s subordinates, Mick Matthews, was investigating Janet Skinner for the purposes of issuing a Proceeds of Crime Act Order against her when he clocked that Wendy Lyell had suffered discrepancies immediately after taking over from Janet. Matthews wrote in a financial investigation policy log that he sought to find out what had happened with regard to investigating Wendy Lyell’s case. He reported that on doing so he:
“received an email from Dave Pardoe, my new line manager, to the effect that no further resources were to be expended on the case in respect of Wendy Lyell.”
Matthews was concerned. “It occurred to me that in the interests of justice we could be rightly criticised for not carrying out a comprehensive investigation into Wendy Lyell. I spoke with and asked [Pardoe] to reconsider allocating resources in order for the matter to be further investigated.“
Pardoe reportedly replied that he would not reconsider, allegedly adding: “… if we are criticised, so be it.”
No further investigation resource was allocated.
Yesterday, Pardoe told Henry that he didn’t recall this episode, nor was it consistent “within my leadership style.”
Janet Skinner was persuaded to plead guilty to theft to avoid a custodial sentence, but the judge sent her to prison for nine months anyway. Janet lost her house and moved into rented accommodation with her young children. The Post Office pursued her for the money she had allegedly stolen, and issued a warrant for her arrest when the Proceeds of Crime Act Order demands (presumably put together by Mick Matthews) went unanswered, having been sent to her repossessed home.
Eighteen months after being sent to prison, and suffering the stress of nearly going back, Janet suffered a complete neurological collapse by transverse myelitis. She was temporarily paralysed and told she might never walk again. Thankfully Janet has partially overcome her illness and has lived to see her conviction quashed.
During his evidence to the Inquiry, David Pardoe admitted he was part of a “groupthink“. He was asked: “Looking back, do you think you bore any responsibility for what happened to the individuals who were affected?”
Pardoe replied “I think, in the absence of a more complete ability to conduct investigations into those conditions, then yes.“
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No insight into this, Nick, but Aujard’s resignations did occur on St George’s Day and so some form of English…