Lord Arbuthnot: “I feel we are heading in the right direction”

Lord Arbuthnot outside the Royal Courts of Justice in 2021

Last week the Sunday Times asked me to write a piece about the Post Office scandal. The result can be read here. In the course of researching the article I picked up a lot of interesting material which, for reasons of space, didn’t make the final cut. Rather than let some good stuff go to waste, I am going to publish it on this website. We’ll start with an interview with Lord Arbuthnot.

James Arbuthnot, formerly the MP for North East Hampshire, became the leading parliamentary campaigner for Subpostmasters back in 2010. He has continued to campaign from the House of Lords and was recently appointed to the Horizon Compensation Advisory board, along with his fellow campaigner Kevan Jones MP and two academics, the legal ethicist Professor Richard Moorhead and Chris Hodges, Emeritus Professor of Justice Systems at Oxford University, who chairs the group.

Please remember this exchange took place before Sir Wyn Williams’ interim report into the compensation situation, which recommended (among other things) that Lord Arbuthnot’s advisory board be given more powers.

Does the Post Office chief executive, Nick Read, have your confidence?

I am sad to say that nobody in the Post Office has my confidence. I am suspending my judgement about Simon Recaldin [the Post Office’s Historical Matters Director], because he appears to be doing his best to put things right; but I remember believing that Alice Perkins [Tim Parker’s predecessor as Post Office Chairman], Paula Vennells [Nick Read’s predecessor as Post Office CEO] and others were also doing their best to put things right, and they made things worse.  Nick Read paid himself a bonus for his Inquiry achievements – and only last week it was shown what a fiasco the Post Office has created in the Inquiry – and has paid back a few thousand pounds. 

How do you feel, personally, about where we are now, given we are three and a half years into Post Office and government apologies?

Oddly enough, I feel we are heading in the right direction. We have the Public Inquiry and I have faith in Sir Wyn Williams [Inquiry Chair] and Jason Beer KC [lead counsel to the Inquiry]. We have several compensation schemes expressly aiming to put the subpostmasters back into the position they would have been in had the scandal not happened.  We have an able Post Office Minister [Kevin Hollinrake MP] who, as a former campaigner for the subpostmasters, believes in their case. 

Of course it’s all much too slow, and of course there is far, far more to be done. But whereas three and a half years ago nobody had heard of the issue, there are now hundreds of campaigners all doing different and valuable things to ensure that justice is done.  We have lift off.

What should the Post Office minister be doing?

Kevin Hollinrake has my trust. He is working diligently and effectively to achieve justice. The key thing he needs to do is bring other government departments into his way of thinking.  Those departments include the Treasury (as always) but also the Ministry of Justice. The subpostmasters have been failed by so many sectors of society, but the Courts have been a major part of that failure. The presumption that computers are working properly is ridiculous.  The failure to properly police the disclosure of evidence is shocking. The length of time taken to consider the consequences of Mr Justice Fraser’s scathing judgement is unjustifiable. The fact that any Post Office convictions – not just those relating to Horizon – are regarded as safe is bizarre.

You recently said all Post Office post-Horizon convictions need to be revisited. Why?

The Post Office’s appalling behaviour towards the victims of Horizon was an infection which must have run through its entire legal department and cannot have been limited to the Horizon cases.

What do you hope to see in Sir Wyn’s final report?

Lots.  But I would begin with an apology, on behalf of the nation, to the subpostmasters.  We have been seeing formulaic apologies on an almost weekly basis from the Post Office, but I know of nobody who thinks those apologies are worth anything. The week after an apology something will happen that is even worse than has gone before. I hope Sir Wyn’s report will, first, set out clearly what happened and who knew what and when.  It will presumably be for others to take action against individuals as a consequence, but it will form the basis of that action.

Second, I hope it will make any comments needed to ensure that proper compensation is paid to every single person who has suffered as a result of this scandal, including the subpostmasters, their families and their employees.

Third, I hope the report will highlight the failings in the courts and legal system, with a route to improvement.  We smugly suggest that British justice is the best in the world.  This has been a failure of justice on an epic scale.  One such failing is the presumption that computer-based evidence is correct unless proven otherwise; another is the refusal of disclosure of evidence that might help to rebut that presumption.

Fourth, I hope it will set out how it was that corporate governance failed so badly at the Post Office and the changes needed to ensure that that does not happen in other organisations.  Those changes need to be cultural and not box-ticking.

Fifth, I hope it will examine the failures in the introduction of complex computer systems.  Fujitsu was permitted to bring into service a system that had already been rejected by the DWP, that was full of faults and under-tested.  The Government has not learnt its lesson from this, as we see from the introduction of the Common Platform system in the Ministry of Justice.  Yet the Government continues to assume that savings can be taken from computerisation before the benefits of that computerisation are clearly established.

I have faith in Sir Wyn.  He is doing an extraordinary job in the face of the usual roadblocks being created by the Post Office. I am already disappointed that he has ruled out considering the role of the auditors in what the Post Office, the Government and Fujitsu have done. I believe the auditors too should be held to account. Sir Wyn said that to include their role in his Inquiry would be “disproportionate”. While I disagree with him, he may be making the valid point that the best must not be the enemy of the good.

I would also be disappointed if Sir Wyn did not address the issue of non-Horizon related prosecutions and litigation. I understand that he may feel constrained by the title of his Inquiry (“the Post Office Horizon IT Inquiry”) and by his terms of reference; but he dealt most effectively with the issue of compensation despite that being expressly excluded from his remit, and it is clear from the thrust of his questioning that the matter is far more than an IT inquiry but goes also to the behaviour of the Post Office arising out of the contracts it imposed on the subpostmasters. The general approach of the Post Office towards prosecution (an approach which I would describe as deliberately unjust) is a matter on which Sir Wyn should be able to comment and draw conclusions from.

Of course there are many other issues which, if left out of the report, would disappoint me (the role of Fujitsu, the individual responsibilities of the management personnel of the Post Office and of those civil servants and Government appointees to the Board of the Post Office, and so on and on) but I see no sign that the Inquiry will fail to deal with them.

All of this is a lot to ask of Sir Wyn Williams.  While I believe he is up to the task, the Government’s response must reflect his own energy and integrity.

My thanks to Lord Arbuthnot for his considered responses to my questions.

The minutes from the most recent meeting of the Horizon Compensation Advisory Board can be read here and below:

Horizon Compensation Advisory Board

Report of fifth meeting held on 14 June 2023

Members present: Prof. Christopher Hodges (Chair); Lord Arbuthnot; Kevan Jones MP; Prof. Richard Moorhead. 

Also present: Carl Creswell; Rob Brightwell; Eleanor Brooks; Beth White; Eleri Wones (first part of meeting) (all DBT).

Fairness of the HSS

1.     The Advisory Board agreed that 

·       Fair compensation should be delivered that puts victims in the position that they would have been in if the scandal had not occurred and properly reflects the significant harms that had been visited on their lives and reputations.

·       Legal or other related costs should be reimbursed in full, so that compensation payments were fully compensatory.

2.    It recognised that Government already subscribed to those principles. Its concern was that they should be effectively implemented, and that postmasters and others should have confidence that they were being applied fairly. Officials informed the Board that Ministers would shortly be announcing their intention to fund top-ups to HSS payments to address the issue relating to tax. [Post-meeting note: announcement to Parliament is here]. 

3.     The Board noted that offers had been made to 99.3% of postmasters who had originally claimed under the HSS, and that 82% of these offers had been accepted. However there had been public comment about the outcomes and handling of a number of cases perceived to have been unfair. Some of these had not yet completed the dispute resolution process within the HSS.  

4.    The Board have had a discussion with KCs from the HSS Independent Panel. The KCs had explained that the Panel had adopted a practice of ‘acting as advocates for claimants’ where it could see matters within a claim that were not addressed in the options presented by HSF, rather than as wholly disinterested arbiters, and had adopted a presumption in favour of applicants if there was a shortfall and no other explanation. 

5.     The Advisory Board believed that the Panel had been guided by principles of independence and professionalism, and by legal precedent so as to seek consistency between awards, in reaching decisions in individual cases. 

6.     The Board noted the difference in process between the HSS and GLO schemes. Under the HSS, the independent Panel recommended an offer. If the offer was not accepted there was a dispute resolution process managed by the Post Office, including referral back to the Independent Panel and then with independent mediation as a final stage. By contrast in the GLO scheme an initial offer was made by DBT followed, if necessary, by independently facilitated discussions. Only if these did not produce agreement was a case referred to an independent Panel. There was provision for review by a senior legal figure in the event of manifest error or irregularity. A broadly similar sequence was being envisaged for the new arrangements for compensation for overturned convictions. 

7.     The Board also noted the different remuneration arrangements for representation and the very high levels of cases without representation in the HSS scheme.

8.     In the Board’s view, having an independent Panel (and, if necessary, the Reviewer) in place at the end of the process to make final decisions on individual claims increased the trust which could be placed in the final settlement. 

9.    The Board noted that given the history of mistrust in the Horizon scandal born of adversarial litigation, many postmasters would lack confidence in the fairness of any compensation delivered under the auspices of the Post Office or its legal advisors. They also noted concerns about the administration of HSS, including issues in respect of the application form. 

10. They concluded that if the Scheme was to be seen to be fair, individuals who were unhappy about the settlements which they had received needed to have recourse to an assessment which was wholly independent of the Post Office. This should come at the end of the process, on similar lines to the role of the GLO Independent Panel. They recommended that the Minister should consider how such an appeal process could be introduced. It should focus on assessing whether settlements were fair based on the evidence provided, whilst allowing consideration of elements of a claim which had been missed or not included on the original form.

11. The Panel discussed the differences in the extent and timing of legal advice in the schemes, which tended to suggest there may be merit in the concerns that unrepresented claimants have been disadvantaged under the HSS scheme. The Board noted that the HSS had been established under schedule 6 of the agreement between the Post Office and JFSA which had settled the GLO case. DBT’s understanding was that, in the light of their members’ difficult experiences in the High Court and elsewhere, the JFSA had argued for a process which did not expect postmasters to take legal advice in making applications. The Post Office had, however, provided support with the costs of legal advice to help claimants consider compensation offers. The HSS Panellists had also explained that they took the approach of scrutinising HSS applications with a view to identifying any heads of loss that had not been explicitly included. Nonetheless, claimants’ lawyers had suggested that claimants who were unrepresented may have received smaller awards than those who had engaged legal advice. 

12.  The Board noted that many of the concerns about the fairness of settlements related to the overall treatment of individual postmasters by the Post Office over many years. They noted that the HSS had paid careful attention to legal principles and precedents in respect of loss of reputation, stigma, distress and inconvenience and related heads of loss, but that this had led to potential differences between different claimant groups. However they believed that the facts of some Horizon cases went beyond those of precedents, for instance in respect of damage to reputation irrespective of prosecution given the impact of any branch intervention or civil action, the prominence within the community of many postmasters, the length of time during which the individual suffered damage, and the consequences for family members and family unity. If such cases were decided by the Courts, there were good reasons for thinking that judges may well create new, more generous precedents, especially given the egregious and bullying behaviour of the Post Office during the course of the scandal – behaviour whose impact was increased by virtue of the Post Office’s credibility as a Government-owned organisation.  They were also concerned that the operation of some rules of thumb in the scheme (such as the 26 month guideline on termination and the starting points for assessing reputational harm) risked unfairness to some claimants.

13. The Board was therefore not convinced that the application of existing principles and precedents would lead to consistently fair results. They noted that postmasters who had been prosecuted by the Post Office would receive exemplary damages. Whilst such damages were intended to punish the Post Office, they also had the effect of acknowledging the sustained personal impact which its actions had had on individuals. They recommended that the appeal process recommended above should put particular weight on securing a fair outcome in respect of the issues described in the preceding paragraphs.        

Overturned convictions

14.  The Board noted that of about 900 people prosecuted by the Post Office in 2000-2015, to date only 86 convictions had been overturned. More were in the process of appealing and the Post Office had recently written to a further group to indicate that it would not oppose their appeals. 

15.  In the Board’s view, postmasters would inevitably distrust any action of the Post Office or its advisors in reviewing cases, even if this were done with the utmost professionalism. 

16.  The Board believed that the criteria set by the Court of Appeal for Horizon cases were too tight, and that a significant number of miscarriages of justice could be outstanding. They also believed that the Court of Appeal’s judgment was based on a limited understanding of the extent of problems with financial systems in the Post Office and with the extent of wrongdoing lying behind the “affront to public justice” finding. This led to a much wider and higher level of concern about Post Office prosecutions (and their review) with a number of critical documents not apparently disclosed and available to the Court. 

17. The Board recognised that Government cannot challenge the decisions of the Courts. They agreed that their Chair should write to the CCRC and its equivalents in other nations to strongly encourage it to propose a wider set of criteria in the light of the full range of cases prosecuted by or on behalf of the Post Office. 

18. They also agreed to recommend that the Minister should 

a.     consider whether the Government or Post Office could do more to encourage postmasters to appeal their convictions; 

b.    arrange that a review of all Horizon prosecutions be undertaken, by a team independent of the Post Office and without any prior involvement, to identify appeals that should be reviewed as unsafe, based on a presumption of innocence; and

c.     encourage the Post Office, when considering which potential appeals meet the Court of Appeal’s criteria, to only resist appeals in which there remained substantial evidence wholly free of taint.

19. They agreed to look further at the issue of cases not yet appealed.

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4 responses to “Lord Arbuthnot: “I feel we are heading in the right direction””

  1. Can anyone expand on the governmental file that was mentioned in the drama. I think it was the last episode … there was some reference to a file being kept from the outset. I’d really like to see some follow up on that. It’s as if the narrative was agreed and then that line of fraud was pushed …. also the money people paid back that was never truly accounted for. Was it ever ascertained if that eventually became simple PO profit?

  2. […] 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 […]

  3. […] a Q&A with one member of the independent Horizon Compensation Advisory Board (Lord Arbuthnot) earlier this week, I am delighted to bring you […]

  4. John+Osullivan avatar

    Notwithstanding Lord Arbuthnot and many others great efforts this has become a real slog.With no share price to protect decisive action is unwanted and unwelcome.The Civil Service hide behind”conventions” that prevent them from saying what advice they have given Ministers and why.Likewise the Attorney General’s Office is of a mindset that The Greatest Miscarriage Of Justice in English Legal History is Not Good enough reason to let on what”Sir Humphrey whispered to Rupert after drinks with Cedric*Sure the Post Office is venal and powerless to change but it’s shareholder doesn’t require it so why bother.Sorry to be on a downer,John

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