I’m delighted to tell you that Noel and Sian Thomas’s book The Stamp of Innocence is available as an ebook from Amazon. Noel was prosecuted by the Post Office and sent to prison in 2006. On getting out the Post Office went after his house and pension. Noel had his conviction quashed at the Court of Appeal in 2021.
To mark the auspicious moment of his book’s publication, Rebecca Thomson and I interviewed Aled (Noel and Sian’s ghostwriter) and Noel for our podcast Investigating the Post Office Scandal. Sian was there to sort the technicals (see above pic), but had a sore throat so wasn’t able to participate in the conversation.
If you’d like to listen to the podcast, you can find it on this website, Audioboom, or by searching in Spotify or Apple podcasts (or most other podcast platforms). We had a great chat about the book, about Noel and Sian’s life on Ynys Môn/Anglesey and Aled’s thoughts the scandal as well as writing the book.
The paperback version of The Stamp of Innocence is due to come out within the next couple of months. If you are a Welsh language speaker and would like to buy the Welsh version of The Stamp of Innocence, it is called Llythyr Noel and is already out as a paperback as well as an ebook. Noel and Aled read from both Llythyr Noel and The Stamp of Innocence in the podcast, and it is a delight to hear.
I really hope I can get over to Ynys Môn to do a joint reading of The Great Post Office Scandal, Llythyr Noel and the Stamp of Innocence with Noel, Sian and Aled some time next year. If you have a venue there and fancy putting an event on, do get in touch.
Three days after the historic, celebratory scenes outside the Royal Courts of Justice on 23 April 2021, I got an email from Paul Cousins (Jnr), Wendy Cousins’ son. Wendy Cousins was one of the three Subpostmasters whose conviction was upheld by the Court of Appeal.
Paul wrote:
For us it was another disastrous day. My mother described it as the worst day since the very day the post office was shut without notice and the house was searched.
I noted your piece outside the court on LBC News – talking about collusion with the government and the power of an organisation who have carried out the greatest injustice in the history of the judicial system.
Are we really suggesting that these 3 sub-postmasters are criminals – when we have seen the evidence over the past 2 decades?
Tom Witherow at the The Times asked me if I was in contact with anyone whose appeal had been refused. I thought of Paul. What I didn’t know was that since Paul first got in contact, Wendy had died of cancer.
Paul and his family were also willing to work with me on an ITV News piece about the family and their fight. That went out on Thursday last week – you can watch it here. You can also listen to a podcast I recorded on the same day with the ITV news anchor Julie Etchingham. This is part of ITV’s weekly What You Need to Know series which you can find on Spotify and Apple podcasts. We talk about the Cousins family and where we are now with the scandal.
I am grateful to Ed Henry KC and Lord Arbuthnot for their contributions to the ITV News feature, and I am particularly grateful to (the camera shy!) Paul Jnr and the wider Cousins family for allowing me to film and interview them, when the grief – a year after Wendy’s death – is still raw.
I have news of a new one. This, as it says below – is for any Subpostmaster, branch manager/assistant or Crown Office employee who was threatened with legal action or sued/prosecuted by the Post Office.
The press release reads as follows:
“A research team led by Professor Richard Moorhead at the University of Exeter are inviting you to take part in this research project looking into the Post Office Scandal.
In this study, we will be examining important issues arising from the Post Office Scandal, focusing on potential issues with the management of the Post Office, the criminal justice system, and the behaviour of lawyers. We wish to better understand how wrongful convictions and other injustices occurred on the basis of flawed computer ‘evidence’, and how relevant issues took so long to uncover.
In order to understand more about the scandal, we would like to speak with former sub-postmasters/mistresses or Crown employees that owned or worked in Post Offices, who had experience of the Horizon IT system, and had some form of legal action taken or threatened against them by the Post Office between 2000 and 2015.
This could include those who were convicted after a criminal trial, those who were acquitted after a criminal trial, those who were charged but had the criminal prosecution dropped by the Post Office, or those who experienced any kind of civil justice proceedings brought against them by the Post Office. Taking part will involve being interviewed by a member of our research team.
The interview is expected to take around 60 minutes. If you agree, we will audio record the interview (it will not be videoed). You can choose to take part in a face-to-face interview, which can take place in a location of your choosing, or an interview using Zoom.
You do not need to answer all the questions we ask and can end the interview at any time without giving a reason, should you wish. You may also have someone with you to support you. Your responses will be confidential and will be anonymised for our analysis to prevent you from being identified.
The results of this study will form part of our investigation into the Post Office Scandal and will be disseminated in a number of ways in order to attempt to prevent similar issues occurring in the future. Means of dissemination include, but will not necessarily be limited to, academic publications and policy-related work, and responses to the Horizon IT Inquiry .
If you would like to be involved in this study or would like any further information, please contact Richard Moorhead Professor of Law, University of Exeter Law School, Amory Building, Rennes Drive, Exeter, EX44RJ. Email: postofficeproject@exeter.ac.uk“
I have no connection to this project, but I can vouch for the professionalism and expertise of Professor Moorhead and his team – and the care they put into their work. Please do share this post in your networks. If you do get involved and don’t mind telling me how it went – please get in touch through the usual channels. All communication will be in confidence.
Stephen Dilley giving evidence at the Inquiry today
Today, Stephen Dilley, a partner at Womble Bond Dickinson, gave evidence to the Post Office Horizon IT Inquiry. Womble have a long and inglorious history with the Post Office, right up to acting for them (disastrously) in the Bates v Post Office group litigation. Back when they were known as Bond Pearce, Dilley helped the Post Office destroy former Bridlington Subpostmaster Lee Castleton at the High Court. Today, Lee Castleton, and his wife Lisa sat before Dilley at the Inquiry.
“I must have been 8 when I first took note the confusion, frustration and anxiety that was leeching into my home. This was before talks of court, trials and accusations of theft. This was the period that my father started noticing the IT faults that wouldn’t be taken seriously for so many years. In the years running up to my father’s trial in 2006 I vividly recall sitting on the staircase late at night, listening to conversations I barely understood or could really comprehend. To a child, the answer always seemed obvious, my father hadn’t done anything. Why didn’t people believe him? Why is the dining room table covered in papers as well as the back office of the post office, and why is he always down there late at night making phone calls and faxes?..
Millie Castleton
“This was an ordeal that not only cost my father legal fees, this was an event that blackened our name and branded us all with something that was unjustified. Court ruling, local gossip and unyielding arguments from the post office would lead to my whole family being branded as thieves and liars. It’s deeply sickening to look back to my life in that small town. A place that would in time, fill me with anxiety to walk through. How comfortable can anyone be when people spat at you based on what you know is a lie? It was also a lonely time, the financial strain of legal fees and supporting the family saw my dad working near 100-hour weeks, often involving traveling and spending days on end away from us. He became a stranger to me, someone I barely saw and lost close relationship with. My mother worked too during the day, upholding the newsagents we still had, which was failing due to the label attached to us and it after the legal case.
“I remember feeling cold and terrified when a child on the bus in my first week asked, ‘didn’t your dad steal loads of money or something?’ This set me on edge for a long time, causing me to become that ever so anxious child who regularly was the subject of bullying. After a few incidents of supposed friends treating me poorly, I completely disconnected.
“At home I was dealing with parents who were working their hardest to provide, utterly pained by the stress that the post office trial caused them. Dad was working insane hours as well as beginning to work with others to try and solve the many emerging cases of other sub-postmasters and post-mistresses like him. My mother was also working as much as she could but also dealing with a stress- induced epilepsy. She lost her driving licence as a result and had to take medication. These seizures where unpredictable at first when the medication was still new. I remember having to handle her seizures alone as a child, sometimes in the middle of the night.
“I didn’t tell my parents about the bullying or social withdrawal. They didn’t know I spent my breaks sitting alone or just walking around, they didn’t know I could go a day or two without really talking. They didn’t know that I was assaulted on the school bus and had to run off on the first stop, wet from water being thrown at me, being spat on and having been hit by paper balls. In my mind this was an additional stressor they didn’t need. I could deal with it alone and not put more weight on their load. I just felt like such a burden all the time.
“My late teens and early twenties were governed by my eating disorder and mental anxieties. I began to sink under the weight of it all and subsequent grabbed for some sense of control. I was anxious about going to university and leaving my family. Mum was still having seizures and Dad was still fighting a legal battle, I felt guilty. Leaving and not being able to help more. I left, already dealing with an undiagnosed at the time eating disorder. It began in my GCSE year, just eating less bit by bit and skipping out on the canteen and pack lunches to avoid questions. By this point I was visibly skinny. Living alone however gave way to me being vulnerable to all my demons… By the end of my first year of university I had been diagnosed as anorexic and too sick to go to my second year… My lowest weight saw me weighing little more than 5-stone and having to stay in hospital for heart related issues for days on end. I’d be lying if I claimed that this wasn’t a cry for help. The surrender of a broken spirit, the pain and self-loathing if someone who just couldn’t escape a terrible situation. Every part of my late childhood and teens was absolutely tainted by the post office case.
“But I fought. I tried. I’m better for it. Not perfect but better, part of me will always feel a little broken-up. I still feel a burning fear at spending larger sums of money or doing something purely for myself. That nagging voice in my head still says ugly things sometimes. It still tells me that my past and family’s struggle will define me, that it will be a branding on my skin forever. Broken, thief or liar.”
At the outset of his cross-examination, Julian Blake, counsel to the Inquiry, asked Dilley:
“Having reflected on the evidence of the Inquiry as a whole, is there anything that you would like to say to Mr Castleton or his family?”
Dilley replied: “No there isn’t.”
Dilley spent the rest of the day arguing the toss with Blake over his behaviour and attitude towards the Castleton case, covering his backside by justifying his decisions as not just thoroughly professional, but absolutely correct at all times. He tried to re-shape the meaning of contemporaneous documentary evidence when it suited him to do so, and seemed to be suggesting that Castleton was largely hung by his own bad decisions – including his refusal to settle. Settlement, it transpired, was only acceptable to the Post Office on their terms – paying the Post Office a “debt” Castleton did not owe, and signing a non-disparagement statement stating that the errors in his branch were human errors, and that the Horizon system “did not contribute to the error[s] in any way”.
Understandably Castleton was unwilling to “settle” in this way. Flora Page, Castleton’s barrister, called the settlement offer “a sham”, suggesting the real reason for offering such unreasonable terms was so the Post Office could take Castleton to court and make an example of him.
“Absolutely not,” replied Dilley, firmly.
The overall impression I got was that Dilley couldn’t give a **** about Castleton (or his family) then, and he certainly couldn’t give a **** about them now. It was a case of: sorry mate, purely business. I suspect Dilley’s back will be warmly slapped by his WBD litigation colleagues when he gets back to the office.
“As a non-litigation Womble I am deeply angry about this. Stephen was removed from the Post Office litigation team after this case by the client partner who was based in Southampton because Stephen very ironically was not regarded as aggressive enough! The following cases were given to a “young buck” who did the client partner’s bidding and more. Both of them were promoted off the back of Post Office and given culture-busting bonuses. It is an open secret in Wombles about who knew what and when. I only hope we can hold our hands up for the sake of the 33 who lost their lives before they could prove their innocence and for their families. It is about integrity. Time to draw a line. Sadly our board are too weak to stand up and do the right thing. To all of us non-litigators it is deeply depressing and embarrassing. I fear worse is to come.”
Helen Rose giving evidence remotely at the Inquiry today
Helen Rose is a former Post Office auditor and investigator. Mrs Rose has no formal auditing qualifications or training, no training she can recall on the Post Office Horizon IT system and no formal training in investigation. She is also the author of the Helen Rose report, which provided some of the first concrete evidence that incomplete information was being used as the basis of Horizon prosecutions. More on that here.
Today at the Post Office Horizon IT Inquiry, Mrs Rose was asked about a witness statement she made during the trial of Lee Castleton, a Subpostmaster who was bankrupted by the Post Office at the High Court. In March 2004, Mrs Rose “audited” Lee’s branch and found a £23,000 discrepancy. Lee was immediately suspended, later sacked, and then taken to court over the allegedly missing money.
In Helen Rose’s contemporaneous audit report she notes that Lee was pleased to see the auditors turn up at his branch (he had requested the audit). Mrs Rose notes that Lee explained he had called the Post Office helpline “regularly” in an attempt to get the problems with his Horizon IT system fixed. Both these pieces of information were missing from her 2006 witness statement to the High Court.
In the first draft of her witness statement to the High Court, Mrs Rose also stated:
“As part of an audit, we have to complete a procedural security inspection… The inspection revealed that the safe was left open, the safe keys were left in the safe door and it was not secured, that cash and stock were not secured during lunchtime if the Sub-Postmaster was not on the premises, that Travellers Cheques were not kept in the safe and Foreign Currency was not held securely, that standard procedures for adjusting losses and gains were not adhered to (because losses were unauthorised) and personal cheques on hand had been incorrectly treated.”
This was not true. Mrs Rose, or someone on her behalf, had incorrectly transposed information from an incomplete generic report into her witness statement. In September 2006, Mrs Rose was asked by the Post Office legal team to carefully read her draft witness statement to the High Court. She did so, and raised the issue of the incorrect information above.
On 3 October 2006 Mrs Rose had a conversation with Stephen Dilley, the solicitor acting for the Post Office. The note of that conversation records she worked with him to clarify and correctly reflect the situation, which was that, at Mr Castleton’s branch, the matter of the discrepancy was raised first. This led directly to Castleton’s suspension, before the security checks could be properly completed.
On 4 October 2006 Mrs Rose was presented with a second witness statement, which inserted a new paragraph to state:
“As part of a normal audit, we have to complete a procedural security inspection. This was initiated by my colleague Chris Taylor. When a postmaster is suspended then any remaining compliance tests are not completed, because of the large number of compliance tests (including security compliance) that have to be completed for each audit. Accordingly although the procedural security inspection was started as a matter of routine, I do not recall it being completed because Mr Castleton was suspended prior to its completion, and it then became irrelevant.”
Nonetheless, the incorrect paragraph, stating (as quoted above) that “safe keys were left in the safe door and it was not secured… cash and stock were not secured… standard procedures for adjusting losses and gains were not adhered to (because losses were unauthorised) and personal cheques on hand had been incorrectly treated”, remained.
Mrs Rose had no explanation for this. The inquiry chair, Sir Wyn Williams, pointed out that she had signed a witness statement to the High Court containing information which she knew was wrong. He wanted to know why.
“I have no recollection of it. I’m sorry” said Mrs Rose.
Elsewhere in her 2006 witness statement to the High Court, Mrs Rose noted that during her audit, Lee Castleton went for lunch and came back “smelling strongly of alcohol”. This recollection was absent from her 2004 audit report. Asked why it was not in her audit report, but suddenly appeared in a witness statement to the High Court two years later, Mrs Rose said:
“I don’t know why that wasn’t in, or came later” said Mrs Rose.
Mrs Rose couldn’t explain why information which would have been helpful to Mr Castleton – his being pleased to see the auditors and his consistent raising of complaints about problems with the Horizon system – was missing from her witness statement to the High Court. Nor could she explain why an apparently invented (or, charitably, lately recollected) detail about Lee Castleton smelling of alcohol had found its way into her 2006 witness statement to the High Court, when there was no mention of it in her 2004 audit report.
By the time it got to trial, in December 2006, Helen Rose had adjusted her recollection about the alcohol matter to say “it was just a vague memory I had of the office”, and apologised to Lee Castleton for making the suggestion he did smell of booze.
It was interesting to note that whilst the Rose report was an exceptionally important document, and used to inform the Clarke Advice, which led to the cessation of all Post Office prosecutions, Mrs Rose had no information to offer the Inquiry on the recommendations in her report, nor its wider effect on the Post Office Security Team. Nor did she take any interest in the subsequent Postmasters’ campaign for justice. She also had little or no recollection of a Subpostmaster who took his own life after one of her investigations, nor the internal disciplinary process she was subject to afterwards.
The maximum number of people who qualify for the deal are the 86 Subpostmasters whose convictions have been quashed. I have asked if this includes Vipin Patel, Teju Adedayo and Parmod Kalia, three Subpostmasters whose convictions have been quashed, but who the Post Office/government is refusing to compensate because they believe Horizon evidence was not essential to their prosecutions.
There is more information from the government here. At the time the news broke I happened to be with Edward Henry KC who represents several Subpostmasters at the Post Office Horizon IT Inquiry. Ed called the offer “cruel”, suggesting the government was displaying “ruthlessness and expediency”. He told me the government should say: “you are guaranteed £600,000 – whether you accept this or not. We are not going to play raw claw litigation with you. If you take us to court or take the Post Office to court and you get more – great. If you take us to court and you don’t, that £600,000 is safe and it’s waiting for you.”
Edward Henry KC
Here’s my studio live report featuring that quote on ITV News last night. Just before I went into the studio I had a quick chat with the Post Office minister Kevin Hollinrake, who told me the sort of deal Ed Henry was espousing was something the Business Department was looking at, which, whilst I imagine it would be welcome, potentially adds to the confusion surrounding the compensation debacle.
I had various Subpostmasters contact me about the offer. One was delighted, telling me: “Just incredible… my heart is singing.”
Tim Brentnall
He was something of a outlier. Tim Brentnall, whose conviction was quashed in 2021 said:
“If this payment is available to all – then people with high claims should get it as an interim. Secondly – they have always taken the line that we have to fight and prove everything because it’s the “public purse”. Many claims will be below that figure so why has that now been abandoned? It’s not very “full and fair” for a lot of people! It’s also going to create pressure on the people who’s claims are just over that amount to settle for perhaps less than they are entitled to.”
TIm concludes: “It’s a good step that they’ve said they want to settle, but it sort of flies in the face of everything that’s gone beforehand.”
Janet Skinner, who went to prison, described the offer as a “complete and utter joke”. Seema Misra, who also went to prison, said “It might be okay for some. Some might be forced into it. [It’s] definitely not for me.”
Neil Hudgell, whose firm Hudgells represents the largest number of Subpostmasters with quashed convictions said:
“we are somewhat surprised by this sudden announcement. I expect the reaction of many of our clients will be that this move is another example of the Post Office trying to control the narrative. The Government has said these offers are optional, but my fear is that, due to the delays we have already faced, and the particular circumstances many Subpostmasters face, some may feel pressured to accept this offer even though their claims are worth much more. In isolation £600,000 may sound like a lot of money, and it is. But in many cases it is nowhere near enough to represent what has been lost over the last two decades.”
Last night on The World Tonight on BBC Radio 4, Lord Arbuthnot, a member of the Horizon Compensation Advisory Board, called the offer “a choice”, saying that “for some it will be a good way of putting this behind them and getting on with their lives.”
“Any variable pay schemes going forward should not include any metrics relating to the Inquiry.”
So. On scrolling through the terms of the Senior Legal Counsel job (which closed on 31 August), I noticed that as well as a “Generous pension contribution” and “Car allowance”, the Senior Legal Counsel working on the Inquiry would also get an “Up to 18% on target bonus opportunity.”
The successful applicant would be working on the Inquiry team, “formed within Post Office to resolve certain legacy issues [that’s one way of putting it] facing Post Office in connection with its dealings with Postmasters”.
The specific job role involved: “working with the Head of Legal and a dedicated team of Senior Inquiry Counsel individuals supporting all legal work realting to the Post Office Horizon IT Inquiry.”
So very much an Inquiry-specific job. With a bonus opportunity attached.
I drew attention to this apparent anomaly on social media two days ago. The same day I asked the Post Office how the bonus offer for working on the Inquiry squared with its statement making clear that any “variable pay” schemes should not include any metrics relating to the inquiry. I asked for the bonus metric for this job and how it would be measured. I am still waiting for a response, however, I was intrigued to see it brought up by counsel to the Inquiry, Jason Beer KC, at today’s hearing into disclosure issues.
I suppose it was a good time to mention it. After all, Beer was cross-examining Diane Wills, who would be the new Senior Legal Counsel’s boss.
Beer noted the job role and asked: “Is that new post… as has been reported in the media, to be paid in part by reference to a bonus?”
“Yes,” replied Wills.
“And what is the bonus metric?” he asked.
Will replied: “Post Office like many organisations runs a bonus scheme to which its senior professionals and management are entitled to participate in which has business-wide objectives which are set for the whole organisation which include things like financial targets. The [Inquiry] team is entitled to take part in that in the same way that other parts of the Post Office are. In the current scheme and in any future schemes there are no metrics directly related to the Inquiry.”
Diane Wills
“So that lawyer and other lawyers – is this right – are not being paid bonuses that are related to their performance in inquiry work?” asked Beer.
There was a pause.
“I think we have to look at it at two levels.” Wills blustered. “First of all there is a decision which is taken by the remuneration committee as to whether or not the corporate-wide objectives have been met, and that triggers the entitlement in principle to payment of a bonus. At a team level… there are personal objectives for each member of the team which are focused on – in the inquiry team – support for the inquiry. Their performance is then looked at in the round at the end of the year, looking at what they’ve delivered in what context with what standards of behaviour etc. Higher levels of performance could lead to the achievement of a higher bonus award. But the decision has to be taken in the first place that it’s payable at all.”
In other words, yes. Despite the massive outcry, the questions in parliament, the publication of two formal reports, the Chief Executive being forced into a series of grovelling and humiliating apologies, the Post Office is still offering bonuses to its staff for their work on the Post Office Horizon IT Inquiry. Of course it is.
Information Commissioner’s decision, 29 August 2023
On 2 June 2023 I sent a Freedom of Information (FOI) request to the Metropolitan Police, London’s police force. I asked:
“Could you tell me when the police stopped using the word “negroid” in its racial identification codes? Please can you supply me with documentation supporting this?”
To give the Met’s FOI department some context, I wrote, as part of my request:
The same day, I received a generic acknowledgment from the Met to my request, giving me a reference: 01/FOI/23/030762
Every public organisation is expected to respond to an FOI request within 20 working days. The Post Office regularly struggles with this, but at least comes up with an excuse. For instance, I made one request on 12 November 2021. On 20 December 2021, I got this:
“As explained in our letter of 29 November, our view is that your request falls within the scope of the qualified exemption under section 42 FOIA. In that letter, we explained that we required an extension of time to provide a response and would aim to respond to you by 31 December 2021. While we have endeavoured to progress your request as far as possible, we consider that a longer extension is now required. We consider that a further extension of time is consistent with the FOIA Code of Practice which states that extensions to the initial 20 working days to provide a response to any request are permitted “until such time as is reasonable in the circumstances”. You will appreciate that the previous extension fell within the Christmas holiday period. In the circumstances, we consider that a further extension would be appropriate and will therefore aim to respond to you by 31 January 2022.”
The Met, however, did no such thing. It did not prevaricate, or play for time. It simply ignored my request.
On 6 July I wrote:
“Hi
Unless I’ve missed it, you’ve taken more than 20 working days to make a substantial response to my FOI request below.
Please let me know why this has happened and when I can expect to get a response to my question.
Many thanks
Nick”
Silence. On 13 July, I wrote:
“Please may I have a response to my email below.
Thanks”
Silence. On 17 July, I wrote:
“Please may I have an update on the status of my FOI request below and an acknowledgment that I have sent this request. My previous two emails (also below) have not even been acknowledged.
Thanks”
Silence. On 27 July, I wrote:
“I am a freelance journalist.
I don’t seem to have received a reply or an acknowledgment to my emails below since I initially made the FOI request referenced above on 2 June.
After a conversation with the ICO am cc-ing the generic casework email address I was helpfully given.
Please could you immediately acknowledge this email AND within the next 3 working days (ie by the end of Tuesday):
– provide me with a substantive response to my initial query
OR
– explain why you have not replied to my last three emails
– explain why you have not replied within 20 working days of my initial request
– tell me when I can expect to get a substantive response to my original request.
If I don’t receive a satisfactory response by the end of play on Tuesday I will make a formal complaint to the ICO.
If I have missed any correspondence, please accept my apologies and send it again as I can’t find anything in my inbox or spam folders.
Yours
Silence. On 1 August, I wrote to the Information Commissioners Office, cc-ing the Met Police and stating:
“For reasons I don’t fully understand, I have not received a response to any of my emails to the met FOI office (see below), beyond the response to my initial email on 2 June assigning me a reference number.
It is of course possible that my subsequent emails are not reaching the MPS Data Office, or that their emails are not reaching me.
Notwithstanding the possibility of some kind of innocent communication error, I would like to initiate a formal complaint against the MPS based on the apparent failure of their “data office” to substantively respond to my initial FOI request and my multiple communications since.
Please advise me as to how you would like me to proceed.”
The ICO gave the Met 10 working days to respond. Silence.
Today (29 August 2023) I received an adjudication from the Information Commissioner. It was addressed to me and the “Commissioner of Police of the Metropolis”. It said:
The Commissioner’s decision is that the public authority has breached section 10(1) of FOIA in that it failed to provide a valid response to the request within the statutory time frame of 20 working days
The Commissioner requires the public authority to take the following step to ensure compliance with the legislation.
The public authority must provide a substantive response to the request in accordance with its obligations under FOIA.
The public authority must take this step within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of FOIA and may be dealt with as a contempt of court.
The clock is ticking. And I am very happy to take this to the High Court if I can get some help from m’learned friends.
I wonder if the Met Police is sitting on information about its racial identification codes that it really, really does not want to make public. Or perhaps mine and the ICO’s emails have been inadvertently overlooked.
In the course of preparing for a recent Sunday Times piece into the latest on the Post Office disaster, I spoke to a number of people. For reasons of space, many of their contributions were edited down to a couple of short quotes, or they simply didn’t make it into the piece at all. Nonetheless, what they had to say was fascinating and I remain grateful for their time.
What follows is an interview with Edward Henry KC, who works with Flora Page and the solicitors Hodge, Jones and Allen.
Together they represent former Subpostmasters Teju Adedayo, Nichola Arch, Lee Castleton, Tracy Felstead, Parmod Kalia, Seema Misra, Vijay Parekh, Vipin Patel, Sathyan Shiju and Janet Skinner.
They, like the other former Subpostmasters and organisations and individuals represented by legal teams at the Inquiry, are known as Core Participants.
Ed has been busy of late. Whilst working on the Inquiry, he found time to successfully represent Andrew Malkinson in his appeal against a rape conviction, heard in front of Lord Justice Holroyde, who lead the panel of judges in Hamilton v Post Office. My interview with Ed took place before Mr Malkinson’s conviction was quashed, and we didn’t touch on it.
The document contained racially offensive classification codes for Subpostmasters (eg “Negroid Types”). Despite the document’s obvious significance, it had not been given to the inquiry.
It begged the question, what else was the Post Office keeping hidden? On instruction from the Inquiry, the Post Office did some more digging and found thousands of documents potentially relevant to the questioning of Gareth Jenkins and other witnesses.
On 11 July the Inquiry chair, Sir Wyn Williams, asked for submissions on whether he should bring a temporary halt to oral hearings so his team could examine these newly-disclosed documents. Sir Wyn decided on a two week break. Ed and I spoke the next day.
What on earth is going on?
Our core participants are terrified, that not simply the wheels, but the back axle has come off the Inquiry because the Post Office has failed miserably in its disclosure obligations. Our core participants are people who’ve gone to prison, been wrongfully bankrupted and had their lives destroyed by the Post Office. We have to try and reassure them that we’re actually going to reach a safe haven eventually, and that the truth will out. It’s become increasingly more difficult because of what we’ve now seen.
As of yesterday, the Post Office had absolutely no idea what quantity of documents was going to fall upon the Inquiry. And the inquiry, of course, acts as the filter. We don’t get the documents until the Inquiry has sifted it. They act as the first filter before our teams get anything. So I really want to pay tribute to Jason Beer KC and his team and give credit to them because they’ve taken on an absolutely Herculean task.
We are frustrated. We feel becalmed. The wind has been completely sucked out of the Inquiry by this. And whether it’s a cockup or conspiracy is not for me to say, but it bears all of the hallmarks of both. I mean, you couldn’t contrive a more ridiculous state of affairs. I’ve never been through anything like this. What a shambles.
At what point were you put on notice that you would be required to make a submission on potentially delaying the rest of the evidence due to a lack of disclosure?
Last week. Gareth Jenkins was due to give evidence on the Thursday and Friday, and we didn’t know until the Thursday that he was going to be pulled. There was a sense of grim determination that this must not be allowed to overwhelm us, but we had to reassure our clients, some of whom had travelled to the hearing so that they could actually see the person who had given evidence against them in a criminal court. There was a sense of impending doom because we thought, well, if this has happened with Gareth Jenkins, then what might happen with the rest of phase four? There’s a tremendous sense of frustration, and also powerlessness because again, it’s the Post Office dictating the timetable and dictating the narrative by their own failure.
When you had those conversations with your clients, and you had to find out whether or not they would prefer to push through with the evidence or to delay – I imagine that’s quite a difficult decision to put on them.
I have to be very careful, Nick, about dealing with discussions I have with my clients, but on an emotional level they’re bewildered. They’re wounded. They’re confused. They’re despairing. They fear the worst. They are perplexed at how the Post Office seems to get away with it.
During the oral hearing on 11 July, Ed did put on the record two responses from his clients:
Nichola Arch:
“The harm of non-disclosure and/or delayed disclosure cannot be underestimated when it comes to the victims of this nightmare. For some, it takes you straight back to the time when you tried to defend yourself but constantly hit a brick wall that is called the Post Office, knowing the truth is there, but you constantly have no access to it. This is what justice looks like to all of us, a one way-ticket to nowhere. The Post Office have said they’ve learnt lessons and they continue to do this. Is this lesson a conspiracy and disrespect for the whole of our legal system? Being the guilty parties, I do not understand why the Post Office have so much slack given to them. It’s almost like they continue to control the whole narrative. We are losing momentum in the Inquiry and changes have to happen now.”
Janet Skinner:
“I completely understand the chair is not happy with this disclosure process from the Post Office, so are we all. Moreover, I’m extremely concerned about this situation. Why is the Post Office able to do this after years of withholding information? Why is it allowed to continue? This isn’t the first time or the second time. I believe that there should be some sort of punishment for their behaviour and for their completely negligent behaviour towards this Inquiry. It’s becoming the Post Office show again. The Post Office are well aware of their actions. Are they not intelligent enough to understand the rules?”
How does the Post Office needs to be thinking about things going forward?
I think the Post Office is in a state of constant siege mentality. Whether it is acting in a cussed way, or whether it is panicked into error… its sense of judgment is completely gone. The mistakes that it makes and continues to make are utterly extraordinary. Conor Cruise O’Brien used this expression in respect of [former Irish Taoiseach] Charles Haughey: “GUBU”. We are in “GUBU” Land. Grotesque. Unbelievable. Bizarre. Unprecedented. I’ve never seen anything quite like this. The Post Office has been through the group litigation. It’s been through countless criminal appeals, and it is still getting things badly wrong.
You keep saying the Post Office, but who is it? Who is directly responsible?
You saw from his evidence how Ben Foat [Post Office General Counsel] was apparently distancing himself, saying that he was not directly involved but had commissioned others to perform the disclosure exercise. You’ve got the Post Office, you’ve got Herbert Smith Freehills, you’ve got a firm of accountants [working on the disclosure exercise], and I wouldn’t be at all surprised if they all start blaming each other because nobody has taken absolute control. You need to have accountability. You need to have somebody at the Post Office who knows that their head is on the block if this doesn’t come good. It’s the analogy with individual ministerial responsibility that used to be a convention in Parliament, but which has now long gone by the board, which was basically ‘whether I’m personally responsible or not, I am accountable, and if my team don’t get it right, then I’ve got to go’.
That has to be the Post Office Chief Executive, doesn’t it?
Well, it has to be really, has to be, unless the Chief Executive wants to use the General Counsel as a lightning conductor, but ultimately, it would have to be the Chief Executive.
If you’d like to contribute to my work on the Post Office scandal, please click on the widget you should be seeing to the right of this text (or below if you’re reading it on a mobile). To find out more before donating, please go to my tip jar web page. All contributors will be added to the ‘secret’ email newsletter, which offers irregular, and at times, irreverent insight into the machinations of the inquiry and the wider scandal. If you’d like to buy my book The Great Post Office Scandal, I would be thrilled – it’s available from all good outlets.
Following a Q&A with one member of the independent Horizon Compensation Advisory Board (Lord Arbuthnot) earlier this week, I am delighted to bring you another.
Richard Moorhead is Professor of Legal Ethics at Exeter University and a respected industry blogger. He has taken a close professional interest in the legal failings which contributed to the Post Office Horizon scandal. You can read his dedicated substack column here.
Prof Moorhead’s thoughtful and measured contributions brought him to the attention of the government, which led to his invitation to sit on the HCAB.
In recent weeks we have had the Bonusgate revelations and serious Post Office failures when it came to disclosing documents to Sir Wyn Williams’ public inquiry into the Post Office Horizon IT scandal. On top of that, the various Subpostmaster compensation schemes set up by the Post Office and government have been accused of being unfair, overly complex, legalistic and far too slow.
Herbert Smith Freehills have been instructed by the Post Office since 2019, where they were brought in to (among other things) negotiate the Dec 2019 Bates v Post Office settlement, design and operate the Historical Shortfall Scheme (set up in 2020), negotiate settlements with those who’ve had their convictions quashed and to work on the inquiry. It was recently announced HSF would stop working on the Inquiry, but the Post Office has retained the City firm to deal with compensation settlements.
Professor Moorhead asked me to make it clear he is answering these questions in a personal capacity, not as a member of the independent Horizon Compensation Advisory Board.
Have Herbert Smith Freehills covered themselves in glory?
No. Disclosure has gone badly wrong. The Historical Shortfall Scheme was misconceived and should not have involved them. How much of this is their fault and how much the Post Office’s or the Government’s remains to be seen.
Given their prior role in the Bates case, it was always unwise for them to be involved in the Inquiry. Now their work for the Post Office has become a focus for the Inquiry, it is beyond embarrassing for them.
The possibility of conflicts, actual or perceived was always there and the problems were foreseeable. Even if these do not lead to professional misconduct concerns, and they might, they have caused reputational damage to themselves.
The rest of the firm must be raging at the embarrassment HSFs Post Office team have caused them; they make HSF look like they lack wisdom and competence. It will put other clients off.
What did they get wrong?
Getting involved post-Bates. The most sensible advice to the Post Office on a compensation scheme would have been to make it as independent of any of the history in this case as possible. That meant independence from the Post Office and from the lawyers who ran any parts of the cases for the Post Office, including HSF.
Running it on a lawyers’ litigation like model was also unwise. The HSS scheme they set up was legalistic, it lacked independence and there were errors of foresight (tax and insolvency being the obvious ones). The scheme suffered from a failure to think about fundamentals from the outset and relied on broken models of dispute resolution in a situation particularly unsuited for it.
I do not think unusual foresight was needed to see this would not work well and the forms they designed had the effect of minimising claims unfairly. Having an opaque, negotiation-based system, run by City lawyers whilst applicants (in reality, legal claimants) were denied any cash to instruct lawyers to help them complete their forms was also obviously unfair.
They should have said “you need a restorative and Ombudsman-style system which can be trusted by the victims and we and as far as possible, you, the Post Office, should be nowhere near it.” Instead, they went for something which looked like a re-run of Bates, with the Post Office and some of the Bates lawyers at the helm. Crass does not come close to describing how bad this idea was.
We should leave open the possibility that the Government prevented something more sensible, but that would not require HSF to be involved. They should have run away as fast as they could. And the Post Office Board should have spotted the problem too, and not instructed them. Bonusgate tells us a fair bit about the quality of the Board, though.
What do you think of Sir Wyn Williams’ interim report on compensation?
It’s a sensible ratcheting up of the pressure, which seems to be Sir Wyn’s modus operandi. Another way of looking at it is – he has, as with disclosure, said on each occasion: you are getting this wrong, here is some rope – then giving it a firmer tug at each stage. Right now he is giving the idea of fairness the firmest and hardest of tugs and saying to the government and the Post Office you have to be absolutely sure that you have given fair compensation.
Whilst I cannot speak for the Advisory Board, I can say without any doubt the HCAB is very firmly behind that aim and I believe the Minister is too.
What are your main concerns about compensation?
There is a big agenda:
have HSS cases been undersettled,
have public interest case claimants (Vipin Patel, Parmod Kalia and Teju Adedayo) been treated like second class citizens,
the tax and insolvency problems,
the size of awards for stigma,
with time being of the essence. None of us forget Sir Wyn Williams announcing each time someone has died.
When the dust settles I’d also like the Inquiry to stand back and think bigger picture about compensation and restorative justice schemes of this sort in the future, but that’s a point for down the track.
What lessons should the Post Office (and government) draw from the compensation debacle?
These are fragile, deeply-wronged people, subjected to a process similar to the one that violated them. You cannot have the wrongdoer, or their lawyers, administering reparation. And rule-based parsimony is money badly spent. You need some generosity, common sense, and institutional actors capable of building trust.
Start thinking properly about what it takes to make such schemes independent, fair, fast, efficient, and meaningful because these compensation schemes are not uncommon and they deal with real lives ruined by others.
HSF will soon cease work on the Inquiry, to be replaced by Burges Salmon and Fieldfisher. What do these incoming legal teams have to do to sort the disclosure mess out out?
The Post Office (and its General Counsel, Ben Foat) do not yet seem to have a full and accurate grasp of the disclosure problem. This is shocking. For the new lawyers, working out what went wrong, the scale of the damage and how to correct it will be fundamental.
I would expect them to engage very openly with the Inquiry and core participants on what they are doing, how they are testing what they are doing, how human insight is deployed to look for gaps and missing documents, and so on. They or the Inquiry need also high quality e-disclosure expertise at their fingertips
Their key task is to get it right and convince the Inquiry and the other participants that they are doing so. It is now an enormous ask.
Sir Wyn Williams (the inquiry Chair) has said he will attach a Section 21 notice to all future disclosure requests. How serious do you think the threat of criminal proceedings might be, and what effect will this threat have?
As things stand, lead counsel to the Inquiry, Jason Beer KC, thinks the Post Office will have a defence on their work to date (essentially incompetence, rather than criminal intent) which the Inquiry cannot yet argue with. That could change as they delve deeper into the history.
Now the Inquiry has laid the ground for criminal enforcement and will be keeping a detailed grip on what the Post Office are doing now, and what they have or have not got wrong hitherto, that may open up enforcement.
That said, I’d say the Inquiry will, if they can, and rightly, want to concentrate on ensuring disclosure is full and accurate from here on in rather than spending time and precious brainpower on enforcement.
My thanks to Professor Moorhead for his time.
If you’d like to contribute to my work on the Post Office scandal, please click on the widget you should be seeing to the right of this text (or below if you’re reading it on a mobile). To find out more before donating, please go to my tip jar web page. All contributors will be added to the ‘secret’ email newsletter, which offers irregular, and at times, irreverent insight into the machinations of the inquiry and the wider scandal. If you’d like to buy my book The Great Post Office Scandal, I would be thrilled – it’s available from all good outlets.
Ps to my earlier comment: even if direct lies were not told, the errors of omission quoted in Lord Arbuthnot’s…