Post Office: Chief executive relied on legal advice
The inquiry into the Post Office Horizon scandal has been urged to put more focus on the role of lawyers in perpetuating the organisation’s intransigence over the IT system’s problems.
The Evidence-based Justice Lab (EJL) at Exeter University said the provisional list of issues published by the inquiry failed to consider the civil claim brought by 584 sub-postmasters against the Post Office, known as the Bates litigation.
The scandal led to the wrongful convictions of dozens of sub-postmasters as a result of the operation of the faulty Horizon IT system.
Mr Justice Fraser, who heard the Bates case, accused the Post Office of trying to make “this litigation, and therefore resolution of this intractable dispute, as difficult and as expensive as it can”.
The inquiry, led by former High Court judge Sir Wyn Williams, has been tasked with establishing a clear account of the implementation and failings of the Horizon IT computer system over its lifetime.
There are only two questions out of the 184 in the provisional list of issues that relate to legal advice taken by the Post Office.
They both only ask whether it was sought, and from whom, in relation first to the contractual liability of sub-postmasters for shortfalls shown in the Horizon system and second to the private prosecutions later carried out.
In its submission on the list, the EJL said: “We are concerned that there is no apparent consideration of the conduct of the Bates litigation.
“Responsibility for litigation strategy and execution is an essential part of understanding why and how Post Office (POL) maintained an apparently untenable position on Horizon’s robustness for so long.
“There should be particular reference to the oversight responsibilities of board, especially the chair and non-executive directors, and particularly the chair of the board’s audit and risk committee.”
It said the inquiry should also question how the board discharged its functions, in particular the broader responsibilities of the CEO and board for setting and overseeing strategy and agreeing multi-year plans, such as the litigation strategy.
“Similarly, although this is covered in some respects in the list of questions, the role of lawyers and legal advice obtained by POL in the conduct of prosecutions and post-prosecution review and appeal work (which is not clearly covered) is an essential part of understanding how and why POL maintained, for so long, that the prosecutions were safe; as well as a significant part of a strategy for protecting the brand or reputation of POL.”
The EJL highlighted a letter from former POL chief executive Paula Vennells to Parliament’s business select committee chair, which stressed the reliance she placed on advice given by both in-house and external lawyers.
The Exeter team is looking at issues in corporate governance, criminal justice and professional regulation, as well as government oversight, in the context of the scandal.
It recently called for an investigation into whether the lawyers involved in the litigation committed professional misconduct, with project leader Professor Richard Moorhead calling it a “scandal within a scandal”.
The project’s initial work is supported by the Economic and Social Research Council, the University of Exeter, and in-house lawyer consultancy LBC Wise Counsel.
Other prolific private prosecutors raise similar concerns. None of the protections that are supposed to prevent private prosecutions going rogue are working.
We at The SHG maintain that unless there are severe financial penalties for prpsecuting solicitors/barristers who could or should have realised that cases were wrongly brought, and for expert witnesses who go beyond their abilities or mislead the courts nothing will ever change.
In order to drive change you need an incentive and that incentive has to be severe enough to sting.
Perhaps we should also consider new criminal sanctions for those organisations (and the professionals who assist them) who persecute people in pursuit of their own agenda, be it political or financial.
You will find more information in our submission to the Justice Committee inquiry into private prosecutions at
https://shgconsultationresponses.wordpress.com/2020/11/08/the-shg-response-to-the-justice-committee-call-for-evidence-on-private-prosecutions-safeguards/