The Horizon Post Office Scandal: collective amnesia takes over

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https://labourhub.org.uk/2023/10/24/the ... akes-over/

In the third of her articles unravelling the Post Office Horizon IT Scandal, Rosie Brocklehurst asks why is the Government now giving up to £190 million of taxpayers’ money to subsidise the Post Office on top of the £1 billion it has already cost to prosecute thousands and convict over 700 Subpostmasters?

Pregnant Statement

As the judgement in her trial for theft approached in 2010, an innocent Subpostmaster and victim of the Post Office Horizon IT scandal, Seema Misra, was accused by a male District Judge at Guildford Crown Court, of deliberately conceiving a child.

As he was about to hand down her sentence, Judge N.A. Stewart said: “This was a conception which took place as the trial was approaching and you conceived that child in full knowledge of the circumstances in which you found yourself.”

Seema suffered from polycystic ovary syndrome which causes difficulties in conceiving, and it was therefore not expected. Her only other child was ten on the day she was sentenced. Seema was also in need of special monitoring care during pregnancy.

Judge Stewart made his particularly offensive remark as he sentenced Seema to 15 months imprisonment for stealing what was later proven to be an illusory £74,000, money that the serious bugs in the computer system created as a shortfall on her computer terminal. The Post Office told Seema she was the only one, but hundreds of others had been raising the same issues for a decade. There never was a genuine loss. But that any bugs existed was denied by Fujitsu, by the Post Office and by the prosecuting lawyers.

Seema was released from prison early but gave birth with a tag on her foot.

Racial Profiling

Seema’s case is also of particular interest to those who fight against sexism and racism in Britain. Given the comments by the Judge on her conception of a baby, and that she was a mother, with no prior stain on her character, it is also possible that her Asian heritage may have played a part not only in the lengthy sentence she was given, a longer sentence than many similar cases. She was prosecuted by a Post Office using racial profiling guides in its investigations. The racial profiling came to light in a document received by campaigner Eleanor Shaikh in May this year, following a Freedom Of Information request.

The man who gave evidence on the reliability of Horizon IT data for the Post Office prosecution team at that trial was a senior Fujitsu computer engineer, Gareth Jenkins.

Gareth Jenkins name is well known amongst the Subpostmasters who have been prosecuted since 2000. He is due to give evidence for four days next month beginning on November 30th at the Statutory Public Inquiry conducted by retired Judge Sir Wyn Williams. As Jenkins gave evidence in several court cases that put Subpostmasters behind bars, it is likely to be well attended. It can also be viewed on the ‘Post Office Inquiry’ You Tube Channel.

Truthfulness of Jenkins’ Evidence First Questioned

In 2020, Gareth Jenkins’ name and details were referred to the Met Police for investigation by the High Court Judge, Mr Justice Peter Fraser who raised his concerns about the truthfulness of Jenkins’ evidence. The Met have not acted on this for two years.

Mr Justice Fraser himself is about to become the new Chairman of the Law Commission. This is the same Commission which in the mid-1990s strongly recommended a change in the law on computer evidence in order to place the onus on the defendant to prove computer reliability.

It was Mr Justice Fraser who oversaw the civil group litigation (GLO) in 2019 that resulted in the demolition of Horizon’s proclaimed ‘infallibility’. Thus a miscarriage of justice was exposed on a scale not seen before in Britain, perpetrated by a publicly owned institution. The Post Office, unlike Royal Mail which was hived off by Vince Cable during David Cameron’s Lib Dem coalition, is wholly owned by Government as the shareholder in UK Government Investments (UKGI).

But it would be wrong to think that Jenkins’ evidence will bring the horrific miscarriage of justice to a satisfactory conclusion. We are still in Phase 4 of an Inquiry that is expected to go on until the end of 2024. The most senior Post Office executives are yet to give evidence and a further two phases are to come, followed by a Phase 7, including a written report with recommendations.

Evidence Postponed

All year there have been problems in getting Jenkins’ evidence heard at the Inquiry. Several planned appearances at the Inquiry were postponed, largely due to non-disclosure of thousands of documents by the Post Office. Twice he has sought to protect himself on grounds of possible self-incrimination, which has involved an appeal to Sir Wyn Williams to agree a referral to the Attorney General to seek protection from prosecution as a result of his evidence.

A first request was denied, and this week, on 23rd October, a second request by the Inquiry Chair Sir Wyn Williams was denied. Sir Wyn has shown himself to be scrupulously fair to all witnesses, ensuring proper legal advice and representation is given and documents disclosed well in advance. This is a fairness that Subpostmasters did not have in their prosecutions and certainly more than Seema Misra was allowed.

Failing to Disclose

Gareth Jenkins’ evidence on Horizon reliability, as Judge Stewart made clear in Seema’s trial, was crucial in her conviction. Yet no evidence that could have supported her case and which we now know was available, was given to Seema Misra’s defence team as it legally should have been.

Disclosure of documents to Jenkins and other witnesses in good time has been far more forthcoming and efficient compared to the way the Inquiry itself has been treated, not least by the Post Office’s failure to disclose many thousands of documents on time. The Inquiry was brought to a halt earlier this year because of these failings. This caused Sir Wyn Williams to invoke his powers to sanction those responsible which could incur a custodial sentence for up to 51 weeks for any future failings. It is remarkable what a steady flow of revealing documentation has subsequently followed.

A Defensive Amnesia?

Most witnesses from the Post Office and Fujitsu or from solicitors working for the Post Office, seem to suffer from a defensive amnesia. No one who has watched proceedings so far can be unaware of the outbreak of lost memories that has afflicted many witnesses, some of whom worked for decades at the Post Office. Few seem to be able to recall very much.

In some cases, basic details about what their jobs actually entailed have been lost to time. These were jobs that were held sometimes for ten, twenty and thirty years. Many have failed to remember the name and roles of those they worked with over long periods of time. This is the case even when prompted by folders containing documents sent in advance for bedtime reading, with colleague’s names, dates, context and sequential correspondence.

With the sheer amount of informative documentation now available, observers would have thought some light would be thrown… but no. Far too many witnesses appear to inhabit the shadows of a long-forgotten landscape. While this can be upsetting for Subpostmasters and frustrating for Inquiry legal teams, fortunately patterns are emerging from documentation that illustrate deliberate obfuscation and cover-up in the Post Office and Fujitsu behaviours concerning Horizon flaws over twenty years.

“Fantasists” in the Post Office

Paul Marshall, a barrister who offered his services pro bono to Seema Misra and several others in order to get their convictions overturned, having just gone into remission from a serious cancer, said in a 2022 Legal Futures article: “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. These 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.”

Paul Marshall continued: “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.”

There are still 610 other cases to be heard and overturned before any compensation will be paid. Around 60 Subpostmasters have died before seeing a penny or clearing their name. On Monday, October 23rd, the Times published its first editorial on the issue, a lead editorial which called for Government to urgently change the law and overturn all the convictions in one go, a solution proposed by Lord Arbuthnot and Professor Richard Moorhead, who are part of an advisory group on compensation to the Inquiry.

£190 Million Subsidy on Top of £1 Billion

Three days before, on the 20th of October, it was announced by Government that taxpayers were to fund a further £150m for the Post Office IT scandal including a contingency of £40 million. The total bill for the scandal is already estimated at well over £1bn.

The money is to help the Post Office to meet its obligations to the Inquiry which involves paying firms like KPMG to sort documents for disclosure as well as compensation payments to victims. Many people were misled by a statement made the day before the Inquiry was due to restart its Autumn session, when the Minister for the Post Office within the Business and Industry Department, Kevin Hollinrake, announced a £600,000 payment to Subpostmasters. The effect of this was to make the story appear resolved for Subpostmasters. It was pure spin and cynical timing from the Department and the Treasury.

Delving deeper into the statement, it was clear that not only was this money being made available only to those whose convictions had been overturned, but no compensation at all was to be given to the 610 outstanding Subpostmasters whose convictions have not yet been overturned. “Doing the right thing” was Hollinrake’s answer to this criticism.

But some Subpostmasters have said that adding insult to injury is not doing the right thing. It causes more pain and anguish. Moreover, the money goes nowhere near enough in most cases to cover prison incarcerations, loss of jobs and earnings over two decades, suicides, deaths, family and child trauma, the pariah status most people were placed in in their communities, the loss of homes, bankruptcies, and constant stress resulting in physical and mental illness, being accused of a crime they did not commit. The injustice is unconscionable.

Hollinrake also revealed that the government is helping to pay for the replacement of Horizon. The IT system is due to be replaced by 2025. No supplier has been announced yet.

Judge Rinder

Computer Weekly which were the first to cover the Post Office story back in 2009, with journalist Rebecca Thompson, has a story about Alan Bates. He is the Subpostmaster who won the Pride of Britain Award two weeks ago and appeared at a glitzy event despite his normal stance of avoiding the limelight. For years he organised disparate Subpostmasters, 550 of them, who thought they were the only ones being accused of false accounting, into the successful group litigation (GLO) in the civil court. Now it appears lawyers he has spoken to are considering taking private prosecutions against Post Office executives involved in the scandal. The Mirror newspaper, which sponsored the Pride of Britain Awards, claims TV barrister Judge Rinder, is one of the people also looking into possible legal action.

Still, no one has been held accountable. While the Post Office has the powers of investigation, how it used those powers is being questioned and recent evidence presented to the statutory Inquiry has highlighted the illegality of withholding evidence of computer failings from the defendant and their lawyers, which happened in so many Subpostmaster cases, evidence that may have exonerated Subpostmasters including Seema Misra. This is quite apart from the complete lack of questioning from anyone from the roll-out back in 2000, that computers and their software programmes do not work all the time and all computers will experience bugs.