The Post Office, smoke and mirrors – and it’s all just got a bit worse

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Guest post by Paul Marshall, a barrister at Cornerstone Barristers

Marshall: Scandal exposes vulnerability of criminal justice system

It is difficult to imagine that the Post Office scandal could get worse than it already is, but it can and it has. The humane and rigorous Sir Wyn Williams must wonder what on earth he got himself into in agreeing to chair the statutory inquiry into the Post Office scandal.

You would need to have been asleep like Rip Van Winkle not to have picked up in the past two years that the Post Office scandal has exposed the most widespread miscarriage of justice in English legal history.

Hundreds of innocent people were prosecuted by the Post Office on incomplete and misleading evidence generated by its (Fujitsu) Horizon computer system that was riddled with bugs and errors.

The Post Office in its evidence to the court in hundreds of prosecutions up and down the country over 13 years, with a straight face, falsely asserted the Horizon system was “robust and reliable”. That was a contention that the able Mr Justice Fraser in 2019 satirised as the 21st century equivalent to maintaining that the earth was flat.

But the scandal is deeply serious and exposes the profound vulnerability of the criminal justice system to error and exploitation. The 16th and 17th century witch trials were less extensive. Judges were then content to see hapless women (typically) convicted and executed because of fantastical beliefs about the supernatural.

The Post Office prosecutions and convictions were based on similarly fantastical beliefs of lawyers and judges about the ability of computer systems reliably and without error to process transactional data.

Those beliefs found support both in high judicial statements (notably by Lord Hoffmann) and deeply flawed Law Commission reports to Parliament at the end of the last century. Those had the effect of removing previous safeguards for the use of hearsay computer evidence.

The proof is in the pudding. Of the first tranche of 42 appeals belatedly referred by the Criminal Cases Review Commission to the Court of Appeal in 2020, 39 convictions were quashed on appeal in 2021, the largest number of conjoined appeals in recent memory.

Troublingly, of those 39, no less than 35 defendants/appellants had pleaded guilty to offences that they did not commit (and were convicted of others), the Court of Appeal holding that they should never have been prosecuted.

One obvious headache for the Lord Chief Justice is that the scandal exposes the fact that judges typically have scant understanding of the propensity of computers to fail, or how to deal with the evidential issue of whether or not they have done so.

To date, the most disturbing question thrown up arises from the fact that, in 2013, the Post Office knew that it had given misleading evidence to the court in numbers of cases and that its star technical witness, a computer engineer employed by Fujitsu, Gareth Jenkins, had failed to disclose to the court his knowledge of bugs and their effects in every case that the Post Office reviewed in 2013. (This was revealed by the now infamous July 2013 ‘Clarke advice’.)

This extended to knowledge of a bug known as the ‘receipts and payments mismatch’ bug, that in 2010 was discovered to have the effect of causing an unfortunate postmaster’s accounts to appear to balance at their branch post office Horizon computer terminal, but a shortfall would be shown on Fujitsu’s main Horizon servers.

It was acknowledged in writing that this presented a bit of a problem. Almost all the Post Office prosecutions concerned balancing shortfalls that could not be accounted for.

This might be thought, therefore, to be quite an important bug. In 2019, Mr Justice Fraser concluded that information about the bug had been “kept secret” by the Post Office, both Fujitsu and the Post Office having recognised its implications.

It was only in December 2019, after the massive group litigation brought by 550 postmasters and employees, that the truth emerged in the teeth of a scorched-earth defence by the Post Office.

Its defence entailed vast expenditure by the taxpayer and extended to a cynical attempt to secure the removal of the trial judge for alleged bias (in his ‘Common Issues’ judgment), including by taking the extraordinary step of consulting the former Master of the Rolls, Lord Neuberger, in the attempt.

Tim Parker was not only chairman of the Post Office at the time, in 2018 he also became chair of HM Courts & Tribunals Service; so the Post Office wasn’t short of high-priced help when needed. Unattractive.

But there remains the question as to why, given that the Post Office stopped prosecuting for Horizon shortfalls in 2014, it took massive group litigation and another eight years for postmasters convicted on evidence, known in 2013 by the Post Office to be dodgy, to have their convictions quashed.

Here things take an intriguing turn.

The indefatigable and public-spirited Eleanor Shaikh last week obtained an answer to a long-outstanding freedom of information request. The upshot was disclosure of a review written in February 2016 for the newly appointed Mr Parker by the government’s senior civil law counsel, Jonathan Swift QC, now a High Court judge. (I’ll call him Mr Swift, as he then was, in this article.)

The review was written in response to pressure from the then business minister, Baroness Neville-Rolfe, who expressed concern about possible miscarriages of justice. She directed Mr Parker to give these concerns his “earliest attention” on assuming his role as chair.

The review is an extraordinary and important document, in the light of what is now known. The Swift review – Concerning the steps taken in response to various complaints made by sub-postmasters – runs to 175 paragraphs and 65 pages, and was relied upon by Mr Parker to allay government anxiety about potential miscarriages of justice.

Whether it was a document that could reasonably be relied upon for that purpose may be doubted but will be for others to judge (Sir Wyn).

Some of its conclusions seem to have no basis, other than in what Mr Swift was told. He addresses a massive review of criminal prosecutions by the Post Office from 2010, of hundreds of cases undertaken by the law firm Cartwright King between 2013 and 2014 – but, remarkably, not the reason for it, which was receipt of advice from Simon Clarke – a barrister employed by Cartwright King, following his review of evidence given by Mr Jenkins, known to have repeatedly given seriously unreliable and incomplete evidence to the court (the Post Office notified its insurers).

Mr Swift says that process (by Cartwright King) was the subject of “oversight and advice from Brian Altman QC”, whom he notes had “considered both the process adopted by Cartwright King, and their actual decisions in a sample of cases, to be reasonable and appropriate”.

This wasn’t revealed to the Court of Appeal in 2021. Mr Altman was the Post Office’s lead counsel on the 2021 appeals. (No conflict?)

Mr Swift, in my view, fails to sufficiently highlight that Cartwright King was a firm routinely used by the Post Office as its prosecuting solicitors/agents and consequently lacked proper independence.

Troublingly, he expresses his view, in words that will have been music to the Post Office’s ears: “We are accordingly content that [the Post Office] has acted reasonably in its handling of disclosure issues arising in relation to past criminal convictions.”

I am unable to identify the basis for that remarkable conclusion. It is contradicted by the fact that, from 2021, the common feature of every one of the now more than 80 successful appeals is a failure by the Post Office to give proper disclosure of known problems with its Horizon computer system to those that it prosecuted.

One has the distinct impression of wool being pulled over Mr Swift’s eyes or else that he didn’t know what he was looking at or for.

In a later email to Baroness Neville-Rolfe, Mr Parker wrote: “The Post Office has previously taken advice from solicitors and leading counsel expert in criminal law on the adequacy of the Post Office’s policy and practice on disclosure where it acts as prosecutor. Based on that I am satisfied that Post Office has adopted a proper approach to disclosure such that it satisfies its duty as prosecutor.”

That is the issue on which the house came down for the Post Office in 39 of 42 appeals in April 2021 in the Court of Appeal. One might infer that the source of the advice was Mr Altman (who Mr Swift notes was heavily engaged in advising the Post Office).

Whether so or not, the advice was utterly wrong – as was the assurance Mr Parker gave to the minister.

For those convicted, it took another five long years for this to be established. It is troubling that something of such fundamental importance could be subject of such serious and widespread error, with the catastrophic human consequences of which Sir Wyn Williams has heard and to which he is obviously alive. It might have been better to ask senior defence counsel to advise.

Oddly, Mr Swift met with Mr Jenkins for the purpose of preparing his review and refers to his evidence without any stated reservation or ‘health warning’.

The Post Office knew him to be a witness who had put it in breach of its obligations to the court as prosecutor and whose credibility as a witness was irretrievably lost. It raises a question as to quite what was revealed to Mr Swift about events of 2013.

A similar anxiety arises in connection with Mr Swift’s statement that the Post Office “is entitled to note at this point in time that there is no evidence that the Horizon system – i.e. the computer system – is responsible for the losses which have resulted in convictions”.

But neither the group civil litigation nor subsequent criminal appeals were concerned with this issue. To establish that a particular bug was the cause of a particular failure in a particular transaction in a shortfall that was the basis of any given prosecution would have been a forensic exercise and reconstruction of staggering complexity and cost.

Mr Swift, like so many lawyers and judges, failed to understand the simple central issue: did Horizon error records reveal the presence of bugs that had a propensity to cause the kind of problems that postmasters alleged that they had experienced with Horizon?

To that question, after hundreds of millions of pounds had been expended by the Post Office in denying it, Mr Justice Fraser in 2019 answered in the affirmative.

It was not helped by the Post Office, up to 2018, resisting giving disclosure of the Horizon known error log, kept by Fujitsu since 1999, on a variety of doubtful pretexts each of which was dismissed by the judge.

The log was the most important category of documentary disclosure given in the group litigation that revealed tens of thousands of error records and fixes.

The Swift review ought to have set (loud) alarm bells ringing amongst the Post Office board. There are four issues that demanded immense caution and required action:

1. By implication, he picks up on concerns expressed by Second Sight – the firm of specialist forensic accountants and investigators appointed by the Post Office in 2012, in response to parliamentary pressure, to review the Horizon system – in the rather ‘hot’ select committee hearing in February 2015.

Ian Henderson had memorably challenged the sufficiency of evidence relied upon by the Post Office in its prosecutions. Mr Swift notes that this issue was not considered by Cartwright King “and is something which can feasibly and reasonably be addressed now”.

2. Related to this, the report expresses misgivings about the Post Office leveraging guilty pleas and notes that the allegation that the Post Office “has effectively bullied sub-postmasters into pleading guilty to offences by unjustifiably overloading the charge sheet is a stain on the character of the business”.

3. It notes that seemingly misleading information was provided by the Post Office to Parliament and to the public, following a 2015 BBC Panorama programme that had alleged that postmaster Horizon accounts could be remotely accessed and manipulated without their knowledge – a possibility that the Post Office resolutely denied. Mr Swift recommended that the issue be clarified. The Post Office maintained its denial, eventually accepting the fact only in 2019, just before trial.

4. It records that Second Sight had raised the question of whether unallocated sums in Post Office suspense accounts might represent the alleged missing sums (shortfalls) for which postmasters had been prosecuted. Mr Swift suggested that this be investigated.

The extraordinary thing is that this review, undertaken at the behest of the government, never actually reached the Post Office board. It was withheld by Tim Parker, it appears, on the advice of the Post Office’s then general counsel on grounds that legal privilege might be abrogated in providing it to the board.

A more wrong-headed view of legal privilege is difficult to imagine, despite confusion sowed by the House of Lords in its famous pronouncements on privilege in the Three Rivers District Council litigation with the Bank of England. Those spawned much unnecessary confusion over who, for the purposes of legal advice privilege, was the ‘client’.

It’s not difficult. The government through UKGI owns the Post Office and is its sole shareholder. It had expressed concern about the possible miscarriage of justice to the Post Office’s incoming chair. It did not express concern to him in his private capacity, but as chair of the Post Office board (thus, formally, as agent on its behalf). He received Mr Swift’s advice in that capacity, not in his private capacity.

The idea that a document of fundamental strategic importance was kept from the Post Office board, that as a result blundered on in its massively expensive and ill-conceived (possibly worse) litigation, defending claims on the basis that Horizon was ‘reliable and robust’, raises seriously troubling questions about what should not laughingly be called ‘corporate governance’. (One is bound to wonder whether there might have been other considerations in play.)

The government appears to have given consideration in 2020, following the litigation debacle, to whether Mr Parker should be sacked for keeping the review from the board. It seems to have concluded that that might be a bit harsh. I wonder.

Paul Marshall is a barrister practising business and commercial law. While indisposed by illness from ordinary practice, he acted pro bono for three of the appellants in the Post Office appeals.

He was responsible, in the face of widespread opposition, for pursuing ‘second category abuse of process’ as a freestanding ground of appeal, an issue of decisive importance including in the Williams inquiry being elevated to a statutory inquiry.

With his solicitors, Aria Grace Law, and junior, Flora Page, he was responsible for eliciting from the Post Office the now infamous ‘Clarke advice’. The views expressed are his alone.