Ed Henry KC: “You couldn’t contrive a more ridiculous state of affairs”

Edward Henry KC

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. 

I have already published my exchanges with Horizon Compensation Advisory Board members Lord Arbuthnot (“I feel we are heading in the right direction“) and Professor Richard Moorhead (“Crass does not come close“).

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.

At the time of our conversation the Horizon Post Office IT Inquiry had come to a halt just before the questioning of Gareth Jenkins, a key witness. This was because the Inquiry had realised the Post Office had not been disclosing all the documents it should have been, a situation which came to light when a campaigner called Eleanor Shaikh was sent a Security Team Compliance Document by the Post Office as part of a Freedom of Information Act request.

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.

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2 responses to “Ed Henry KC: “You couldn’t contrive a more ridiculous state of affairs””

  1. I am open to correction, but I think the DPP during the early years of the Horizon shambles was Keir Starmer QC.

  2. How is it that the PO gets away with this? I have followed this from the beginning and from the outset the PO have done all they can to delay, divert and mislead not only the enquiry, but the Bates vs. PO case.

    As Ed Henry points out it is still as if the PO is controlling the narrative, and still the PO gets away with it.

    If this were any other business or a private individual, they would already have faced criminal charges and I have doubt that if I had done this as a private individual so systematically, I would already be in prison.

    The government as the ultimate owner of the PO could simply instruct the PO to comply with all requests, the fact that they have tried to distance themselves from this, would seem to imply complicity in this travesty.

    Sadly it would also seem that the judiciary have been complicit in this as well, when the trials of Subpostmasters were happening, it beggars belief that no one wondered why all of a sudden it appeared that there was a conspiracy of fraud being run by the Subpostmasters?

    All through this the word justice has been bandied about, but what has become clear is this whole issue
    is very little to do with “Justice” (whatever that actually is) and to do with the subversion of the law by the defendants trying to save their own skins. Shame on them all.

    British justice is well on the way to becoming a laughing stock rather than a beacon of truth and fairness to all.

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