British Post Office scandal

The British Post Office scandal is a major British business, legal, ethical and political scandal involving the prosecution and conviction of hundreds of sub-postmasters for alleged theft, false accounting and/or fraud, resulting in imprisonment, loss of reputation and livelihood, bankruptcy, divorce, and even suicide amongst those involved.^[1][2][3][4] Over time different euphemisms have been used to describe the Post Office's relationship with its single share owner, the British Government.^[5] Subsequent to a press outcry and later investigations, sub-postmasters convicted of criminal offences had their convictions declared unsafe, obtained unlawfully,^[6][7] and quashed.^[8][9] As of 2021, the government has promised financial compensation to the victims of the scandal,^[10] which has been described as one of the biggest miscarriages of justice in British history.^[11][12]

Overview[]

In 1999 the UK Post Office introduced a computer accounting system named Horizon. By 2013 the system was being used by at least 11,500 branches, and was processing some six million transactions every day.^[13][14] From 1999 onwards unexplained discrepancies and losses began to be reported by sub-postmasters. The Post Office maintained that Horizon was "robust" and that none of the shortfalls or discrepancies in sub-postmasters' branch accounts were due to problems caused by Horizon.^[15] Sub-postmasters unwilling or unable to make good the shortfalls were sometimes prosecuted (by the Post Office's in-house prosecution team) for theft, false accounting and/or fraud. Between 1991 and 2015 there were 918 successful prosecutions.^[16][17] These were largely private prosecutions by the Post Office relying on IT evidence alone, without proof of criminal intent. Public prosecutions also occurred in Scotland, Northern Ireland and in Crown Courts. Despite this, some sub-postmasters were successfully persuaded by their own solicitors to plead guilty to false accounting, on being told the Post Office would drop theft charges. Once the Post Office had a criminal conviction, it would attempt to secure a Proceeds of Crime Act Order against convicted sub-postmasters, allowing it to seize their assets and bankrupt them.^[18] According to press reports, these actions by the Post Office caused the loss of dozens of jobs, bankruptcy, divorce, unwarranted prison sentences and one documented suicide.^[19][20]

In 2019 the Horizon Issues trial judgment in the Bates & Ors v Post Office Ltd group litigation at the High Court found that bugs, errors and defects did exist and that it was possible for these to cause apparent discrepancies or shortfalls in branch accounts or transactions, to undermine the reliability of Horizon accurately to process and to record transactions. Mr Justice Fraser found that this had happened on numerous occasions.^[21]

In September 2020, the Post Office declared it would not oppose 44 postmasters' appeals against conviction^[22] but it did unsuccessfully oppose their appeals against improper prosecution.^{see below} In December 2020 six convictions were quashed,^[23] and in April 2021 the Court of Appeal quashed a further 39 people's convictions. The court also made the rare finding that the Post Office had acted in such a way as to subvert the integrity of the criminal justice system and public confidence in it. The prosecutions were found to be an abuse of process and an affront to the conscience of the court.^[24] The appelants should not have been prosecuted or convicted.^[4][25]:137 The BBC called the convictions "the UK's most widespread miscarriage of justice".^[26]

In April 2021 Post Office Chief Executive Nick Read announced that the Horizon system would be replaced with a new cloud-based IT system.^[27]

Horizon computer system[]

The system cost £1 billion and was designed by ICL/Fujitsu Services.^[28][29] The system was originally introduced in 1995 on a pilot basis in a small number of post offices, alongside a joint work programme between the Department of Social Security's Benefits Agency and Post Office Counters Ltd. The objective of this programme (known as the BA/POCL Programme) was to provide an automated system for making benefits payments through post offices and thereby reduce fraud.

At the Conservative Party conference in October 1995, the social security minister Peter Lilley brandished a smartcard as the intended replacement for the , declaring that, with the Benefits Agency and International Computers Limited, Post Office Counters Ltd would install smartcard reading terminals at every branch, through a private finance initiative (PFI) to be delivered under a commercial contract. At the time smartcards were under consideration as part of the full system, but a final choice of technologies had not been made.

After a lengthy competitive procurement exercise, begun in 1994, the contract for further development and full implementation in all post offices was awarded in May 1996 to ICL's Pathway division, which had been created for the purpose.^[30] ICL later became part of Fujitsu.
In 1999, four years and £700m of taxpayers' money after the pilot scheme began, the Government, by now Labour, stopped the scheme in its tracks. The Department of Social Security withdrew from the deal, leaving ICL/Fujitsu to run the system. ICL has since criticised the PFI payment criterion: it would have been paid partly on how many customers Post Offices attracted. Stuart Sweetman, the then group managing director of customer and banking services for Consignia (the name used at the time by the then holding company for Post Office Counters Ltd, Parcelforce and Royal Mail), said in 2001: "Looking back, I think it was over-ambitious  – You can't export all the risk to a supplier."^[31]
On 8 April 2021 Post Office Chief Executive Nick Read announced that the Horizon system will be replaced by a new IT system that would be "more user-friendly, easier to adapt for new products and services, and cloud-based to ensure easy maintenance and ready interoperability with other systems." In a speech to senior staff, he said: "We are already taking the first steps towards migrating off the Horizon system for good, in favour of a modern, cloud-based system which postmasters will find more intuitive and easier to operate. This will not be easy – it will after all be among the biggest, if not the biggest, IT roll-out in the country when the time comes. But the change is both necessary and overdue, and it begins now."^[27]

Problems[]

Sub-postmasters began to find computer generated errors within weeks of the system being installed. These problems were reported to the Post Office via the 'Helpline' the SPMs were instructed to use. The Post Office resisted the SPM's claims that there were faults in the system, insisted that the SPM's made up any shortfall and, when asked, denied that other SPM's had reported problems.^[32][33] In 2000 there were 6 shortfall convictions that relied on Horizon data; in 2001 41 SPM's were prosecuted and in 2002 there were 64.^[34] In around 2000 problems with the system were reported by Alan Bates, the sub-postmaster at Craig-y-Don from March 1998 until November 2003. In 2003, Alan Bates had his contract as subpostmaster terminated when he refused to comply with Post Office policy.^[35][36] He reported his concerns to Computer Weekly in 2004, which finally gathered sufficient evidence to publish them in 2009.^[37] A campaign group on the issue, Justice for Sub-postmasters Alliance (JFSA) was formed by Bates and others in September 2009.^[38][39] By 2012 concern in the media, and amongst a number of members of parliament, had grown. As a result, an independent investigative firm, Second Sight, was commissioned by the Post Office to conduct a separate, independent inquiry, in 2012.^[40][13][38] At around this time, Paula Vennells became CEO of the Post Office.^[38]

Second Sight reports[]

1. Interim Report dated 8 July 2013;
2. Briefing Report Part One dated 25 July 2014;
3. Briefing Report Part Two version 1 dated 21 August 2014;
4. Briefing Report Part Two version 2 dated 9 April 2015.^[41]

Of the first report Vennells has later (2020) said that "it concluded, while it had not found evidence of system-wide problems with the Horizon software, there were specific areas where Post Office should consider its procedures and operational support for sub-postmasters."^[42] Ron Warmington, of Second Sight had said in 2019 "if the Post Office Board had believed – and acted on – what Second Sight reported  – instead of being led by the nose by its own middle management and in-house and external legal advisors, huge amounts of money, and human suffering, would have been avoided."^[43] In July 2013, Second Sight issued an interim report and Post Office Ltd admitted that software defects with Horizon had indeed occurred, but said that the system was effective. The review discovered problems in 2011 and 2012, when Post Office Ltd discovered defects that had caused a shortfall of up to £9,000 at 76 Post Office branches.^[44] The BBC reported that the Post Office later made good those losses and the sub-postmasters were not held liable.^[13] However, more than 150 sub-postmasters continued to raise issues with the system, which they claimed had, by error, put them in debt by tens of thousands of pounds, and that in some cases they lost their contracts or went to prison.^[13][45] In 2019 Mr Warmington said,^[46]

the Post Office has improperly enriched itself, through the decades, with funds that have passed through its own suspense accounts. Had its own staff more diligently investigated in order to establish who were the rightful owners of those funds, they would have been returned to them, whether they were Post Office's customers or its Subpostmasters. When is the Post Office going to return the funds that, in effect, belonged to its Subpostmasters?" and "It also seems to be clear now that some of those funds could have been generated by Horizon itself, or by errors made by the Post Office's own staff, or by those of Fujitsu. They weren't "real" losses at all. They were phantom discrepancies.

Second Sight's report of 9 April 2015, entitled Initial Complaint Review and Mediation Scheme and marked as confidential, states that they were first appointed by Post Office at the request of Members of Parliament in July 2012. Undertakings were given by Post Office to satisfy MPs that Second Sight would be able to conduct an independent investigation into the matters of concern.^[47] The report described the Horizon system as, in some cases, "not fit for purpose".^[45][48] The lead investigator for Second Sight claimed that there were about 12,000 communication failures every year, with software defects at 76 branches and old and unreliable hardware.^[28] The system had, according to the report, not been tracking money from lottery terminals, tax disc sales or cash machines – and the initial Post Office Ltd investigation had not looked for the cause of the errors, instead accusing the sub-postmasters of theft.^[45] The report was dismissed by the Post Office.^[49] However, it was leaked to the BBC in September 2014. The BBC's article on the report also said that training on the system was not good enough, that "equipment was outdated", and that "power cuts and communication problems made things worse".^[45]

In March 2015, Private Eye and other sources reported that Post Office Ltd had ordered Second Sight to end their investigation just one day before the report was due to be published, and to destroy all the paperwork which they had not handed over.^[19][29] Post Office Ltd then scuppered the independent committee set up to oversee the investigation, as well as the mediation scheme for sub-postmasters, and published a report which cleared themselves of any wrongdoing.^[19] Of the 136 cases, 56 had been closed, and Post Office Ltd would put the rest forward for "mediation" unless a court ruling prevented them from doing so.^[29] After ending the inquiry, Post Office Ltd said that there were no wide-scale problems, and that:^[29][50]

This has been an exhaustive and informative process that has confirmed that there are no system-wide problems with our computer system and associated processes. We will now look to resolve the final outstanding cases as quickly as possible.

Mediation Scheme[]

Post Office Ltd then went into mediation with some of the affected sub-postmasters.^[45] By December 2014, however, MPs had criticised Post Office Ltd for how it handled the sub-postmasters' claims, and 140 of those affected had withdrawn their support for the Post Office-run mediation scheme.^[51] 144 MPs had been contacted by sub-postmasters about the issue, and James Arbuthnot, the MP leading on the matter, accused the organisation of rejecting 90% of applications for mediation.^[51] Post Office Ltd said that the claims by Arbuthnot were "regrettable and surprising".^[51] Arbuthnot further claimed that Post Office Ltd had been "duplicitous", and said that:^[29]

I do not want to build up hopes that the other methods are going to be more successful than the current ones, so I will not be specific – but it will involve legal and political campaigns.

In February 2015, ComputerWorld UK, a UK trade magazine for IT managers, reported that Post Office Ltd were obstructing the investigation by refusing to hand over key files to Second Sight.^[28] Post Office Ltd (Angela van den Bogerd) claimed in the Business, Energy and Industrial Strategy Committee hearing of 3 February 2015^[52][53][54] that they "have been working with Second Sight over the last few weeks on what we agreed at the outset. We have been providing the information", but the lead investigator for Second Sight, when asked by Adrian Bailey MP, if that were the case, said "No, it is not", as he had not been given access to prosecution files, which he needed to back up his suspicions that Post Office Ltd had brought cases against sub-postmasters with "inadequate investigation and inadequate evidence".^[28] He said that these files were still outstanding eighteen months after they had been requested.^[29] Paula Vennells (then Chief Executive, Post Office), subsequently apologised to workers affected by the scandal, saying: "I am truly sorry we were unable to find both a solution and a resolution outside of litigation and for the distress this caused."^[55] Her letter to the Energy and Industrial Strategy Select Committee claims that the message she and the PO Board were consistently given by Fujitsu, from the highest levels of the company, was that while, like any IT system, Horizon was not perfect and had a limited life-span, it was fundamentally sound. She had repeatedly raised the question of whether Post Office or Fujitsu had the ability to access and alter branch information remotely, both internally and with Fujitsu, and was always given the same answer: that it was not possible for branch records to be altered remotely without the sub-postmasters knowledge. She raised this with Fujitsu's then CEO and was told that the system was "like Fort Knox". "He had been a trusted outsource partner and had the reputation of a highly competent technology sector CEO. His word was important to me."^[56]

Court cases[]

The Post Office proceeded aggressively against its staff in criminal prosecutions in Magistrates and Crown Courts^[57] and with civil actions.^[58] At the time of the prosecutions the Post Office had no different standing in law to that of any other private prosecutor in the British legal system. It acted as a private prosecutor in England and Wales. In Scotland, it reported allegations of crime to the Procurator Fiscal, and in Northern Ireland to the Public Prosecution Service.^[59] However, The Post Office's unique position, with a history as a prosecutor going back to 1683, gave the Criminal Cases Review Committee the greatest cause for concern upon its referral to the Court of Appeal. Historically the Royal Mail had been a public authority.^[60]

The Post Office is not a typical private prosecutor. The Private Prosecutors' Association question whether the Post Office was conducting private prosecutions at all and was in fact a "publicly-owned entity and a public prosecutor" during the relevant period. The Criminal Cases Review Commission (CCRC), in its written submission to the Commons Select Committee, questioned whether any organisation with the Post Office's combined status, as victim, investigator and prosecutor, would be able to take decisions on investigations and disclosure "appropriately free from conflict of interest and conscious or unconscious bias".^[61] Counsel for the defence in the case of Misra^{see below} raised the issues of insufficient disclosure, conflict of interest etc.
Paul Marshall, counsel to three appellants in the case of Hamilton ^{see below}, until forced to resign from the case by an allegation by the Post Office of contempt, or information to the court indicating contempt, or breach of disclosure terms,^[62][63] in written evidence to the Parliamentary Justice Committee, rejected the notion of the private nature of the prosecutions as a single cause of the scandal.^[64] The Scottish Criminal Cases Review Commission has written to some 73 sub-postmaster who may have been wrongly prosecuted and/or convicted.^[65] Marshall alleged four inter-related causes:^[64]

1. Legal – legislative failure.^[66]
2. Legal – court/judicial failure.^[4][25]:133
3. Post Office mendacity/opportunism.^[67][68]
4. Failure in Post Office corporate governance.

As the mediation process broke down the affected SPMs began to consult and combine their efforts into legal action. The action taken against the Post Office took the form first of the Group Litigation in the name of Bates and others, a civil action in the High Court by some 600 people, and the linked appeal cases, first of Regina v Christoper Trousdale & Others in the crown court, and then of Hamilton and Others in the Court of Appeal (Criminal Division). In the Trousdale and Hamilton appeals, the findings in the civil case (Bates) were used to support the appeals against convictions. In Bates six 'Lead Claimants' and 23 'Common Issues' were identified and agreed to enable the court to examine the 600 cases. The court of appeal judgment that all of the successful appeals had suffered a prosecution that was an affront to the conscience of the court has important implications for future cases against the Post Office.^[69]

Further cases since the Hamilton appeal have been heard and further appeals and civil claims are expected. The Financial Times headlined "Sub-postmasters set to file UK lawsuits for malicious prosecution".^[70] As of 19 July 2021, 57 people have had their convictions quashed.^[71]

Magistrate's Courts[]

Magistrates Courts are not courts of record. An appeal from a conviction in a magistrate's court is by way of Case Stated to a higher court, usually to a Crown Court. As of July 2021 the number of convictions obtained by the Post Office, directly or via public prosecution in Magistrates Courts is unknown or unpublished.^{see above}
On 30 June 2021 the Post Office issued a statement that, inter alia, said, "To date such appeals have been heard by Southwark Crown Court.  – If people have previously tried to appeal and failed, or pleaded guilty in a Magistrates' Court, they can apply to the CCRC.  – Post Office is contacting people with potentially relevant convictions, following an extensive search of historical records and urges anybody who believes that they may have a relevant case to come forward.  – Post Office's post-conviction disclosure exercise, by external criminal law specialists Peters & Peters, has examined around 4.5 million documents and thousands of physical and electronic sources have been interrogated. In addition, Peters & Peters liaised with a number of third parties including Fujitsu Services Limited, Royal Mail Group, the Courts, the CCRC and approximately 50 law firms and agents historically instructed by Post Office to obtain material relevant to the convictions."^[72]

Crown Court[]

Regina v Christoper Trousdale & Others - December 2020[]

The first Sub-postmaster appeals against convictions were at Southwark Crown Court, Her Honour Judge Taylor, sitting as a judge of the High Court. The cases were from Magistrates Courts' convictions in London, Luton, Basingstoke, Oxford, Burton-upon-Trent, and Scarborough between 2004 and 2012. "The Post Office is currently reviewing around 800 prosecutions made between 1999 and 2014, where Horizon data was used in evidence."^[73][74] The six appealed against their convictions. The appeals were unopposed; the respondent, the Post Office offered no evidence, the appeals were allowed and Not Guilty verdicts were entered. Little mention was made of the distinction between unsafe convictions and prosecutions that should not have been brought. Judge Taylor said:^[73]

the CCRC referred 41 of the applicants to the Court of Appeal  – by way of statements of reasons and in respondents notices by the Post Office it was indicated  – appeals were not opposed  – these six appellants were referred by the Criminal Cases Review Commission to this court under section 11 of the Criminal Appeal Act of 1995 and the statement of reasons for each of those referrals identified that in view of the findings of fact by Mr Justice Fraser in the group litigation that there was a real possibility that the Crown Court would set aside their pleas of guilty and stay further proceedings an abuse of process.

This case was heard before submissions about ultra vires or wrongful prosecutions were made in Hamilton & Others.^{see below} Just three months later it was known publicly that these submissions were to be made and that the Post Office intended to oppose them in Hamilton.^[75]
Five of the six appellants were represented by counsel - one was unrepresented and had been advised by the court that she need not attend. Costs were awarded to the appellants. During the hearing Counsel for Mr Ashraf said^[73]

May I just mention one matter as I know that Mr Ashraf wants this to be mentioned. It is in relation to the prosecution characterisation which has given two different explanations. He wants it to be known, less it to be reported, that that is what happened. He disputes that. I have explained to him that it matters not for present purposes but he just wanted me to mention that and I know the court will not mind that I had."  – "I am very grateful. Otherwise I would only ask  –

The transcript gets diverted by the complexities of the electronic or online system - "MR PATEL: (inaudible) similarly for (inaudible) (Some disturbance with microphones in court room) MR BAKER: I think it may be Mrs Rudkin and I would ask that they mute their microphones. JUDGE TAYLOR: Yes, could all those on CVP mute your microphones please. Yes, if you can leave the camera on and mute the microphone. – (Pause)"  – " and Mr Ashraf's objection to the two different prosecution characterisations, and whatever else his counsel is about to ask, remains unknown.^[73] At the end of the hearing the judge said, "I am sure that all of the appellants are grateful for the approach that the Post Office has taken finally to this matter and that it can be put to rest for them."^[73]

Regina v Seema Misra - October 2010[]

Seema Misra was prosecuted and sentenced to imprisonment at Guildford Crown Court.^[76] In written evidence to the parliament's Justice Committee, the barrister who had started her representation at her appeal in the Hamilton case said, "At Mrs Misra's criminal trial, "on  – three separate occasions, the defence applied to three separate judges to have the prosecution stopped on the basis that the disclosure given by the Post Office was woefully inadequate and the prosecution an abuse of process – "^[64] The submissions at Guildford Crown Court were dismissed and Ms Misra was charged with 1 count of theft, to which she pleaded Not Guilty, and 6 of false accounting to which she pleaded Guilty.
In a further application, during the trial, that the trial be stopped, Mr Hadrill, for Mrs Misra, said of the prosecution's expert witness "he operates under a restriction because he is an employee of Fujitsu who are under contract to the Post Office and he can only comply with his contractual terms as best he can and there is no suggestion his integrity is anywhere at fault as to what he is permitted to do, bearing in mind this is a Post Office prosecution. I don't go behind that but it is not an independent prosecution at arm's reach from the loser company and Mr Jenkins, so we have to have concerns as to the quality of his evidence and the best he has done in regard to the restrictions he operates under." The application was again unsuccessful. The prosecution told the jury "In a Post Office case it is a Post Office investigator who conducts the interview because of course they are familiar with Post Office procedures in a way a Police Officer would not necessarily be."^[77]
Mrs Misra, recalling the moment when she was sentenced to 15 months in prison in 2010 said "It's hard to say but I think that if I had not been pregnant, I would have killed myself."^[78]

High Court[]

Post Office Ltd v Castleton - January 2006[]

This was a civil case in which The Post Office sued Mr Castleton. The case was heard before His Honour Judge Richard Havery Q.C. in December 2006 and January 2007. The defendant represented himself and counterclaimed damages in the sum of £11,250 on the ground that the Post Office wrongfully determined the contract as a subpostmaster following his suspension. The judge found for the Post Office on the claim for £25,858.95. He found the deficiencies were real, the business was not properly managed and that Mr. Castleton was therefore in breach of his contract with the Post Office. "Moreover, the losses must have been caused by his own error or that of his assistants. The counterclaim was dismissed."^[79] Mr. Castleton declared himself bankrupt, "At his case in the High Court in December 2005 and January 2006 the judge decided that, as Lee's contract had spelled out, he was responsible for any losses. He owed not only £27,000 but also £321,000 for the PO's legal costs. So he didn't have much choice about the bankruptcy."^[80]

Bates & Others v Post Office Ltd[]

On 22 March 2017 Senior Master Fontaine made a Group Litigation Order with the approval of the President of the Queen's Bench of the High Court and, on 31 March, Mr Justice Fraser was nominated Managing Judge in Bates & Others v Post Office Ltd,^[81][82] brought by approximately 600 claimants.^[83] At the start of the proceedings, the Post Office unsuccessfully opposed the making or the existence of a GLO.^[84] Ths Post Office had set up a Litigation sub-committee, attended on 24 April 2019 by Tim Parker, Tom Cooper, (Director UK Government Investments),^[85] David Cavender QC, Alisdair Cameron, Ben Foat, staff from Womble Bond Dickinson and Herbert Smith Freehills.^[86] There was an unsuccessful application by the Post Office that the judge recuse himself, an appeal, and two separate submissions described by judges as attempts to put the courts in terrorem. At the Judgment No.6 the judge said:^[41]

The recusal application was issued the day after Mr Godeseth's cross-examination had made it clear, not only that this remote access existed, but after he was taken in careful cross-examination through specific examples of Fujitsu personnel manipulating branch accounts, and leading to discrepancies in branch accounts. I am aware that criticism of the Post Office and Fujitsu in this respect may prove to be controversial, as earlier criticism of certain aspects of the Post Office's case in Judgment (No.3) was not well received by it. However, if criticism is justified, I consider it would be detrimental to proper resolution of the group litigation if that criticism were to be withheld simply because it might lead to a further negative reaction by the Post Office. It is also an inherent part of the judicial function in any litigation to make findings, which may include criticisms where justified, that may be contrary to a litigant's own view of the merits of their case. Some litigants are so convinced of the righteousness of their own position that they consistently refuse to accept any possible view of the litigation other than their own. Such a blinkered view is rarely helpful, and would be particularly unhelpful from a publicly owned institution.

The SPMs were financed by a litigation fund, Therium.^[87] High court battles are expensive. Defendants try to intimidate funders by running up costs and with delaying tactics, in the hope the latter might walk.^[88] The matter ended by consent when the Post Office agreed to pay costs of £58 million, without admitting liability, and compensation was therefore not awarded.^[89] Of that payment, £46m went to the financial backers.^[88]
The extent to which the government was aware of the Post Office's approach to its defence was questioned during the parliamentary debate on 19 March 2020. David Jones MP said, "Of course the Post Office has a non-executive director appointed by the Government. One must assume that that non-executive director is reporting to Ministers." Kevin Jones MP replied, "If I had been the Minister, I would have had that person in and scrutinised what was going on  – That would certainly have applied in the past few months, given the hundreds of millions of pounds that have been spent defending the indefensible." Bambos Charalambous MP, "The Post Office seemed to have unlimited funds at its disposal to fight this action,  – The Post Office is an arm's length organisation, but there seems to be no accountability  – " Chi Onwurah MP, "Its only shareholder is the Secretary of State for Business, Energy and Industrial Strategy, so more should have been done to address the scandal before it was allowed to fester to this extent."^[90]
Arbuthnot, sitting in the House of Lords as Baron Arbuthnot of Edrom, in a written question asked, " – whether the Accounting Officer with responsibility for the Post Office has played any role in advising ministers on the Government's policy in relation to  – (3) the sub-postmasters' litigation against the Post Office".^[91] In an article headed "Did government officials collude in trying to remove a judge?" journalist Nick Wallis sets out and assesses the government's reply to Arbuthnot's questions, "Mr Chisholm (Principal Accounting Officer at BEIS) has never been held to account for his actions in monitoring or blessing the Post Office's behaviour since he was appointed BEIS Permanent Secretary in 2016. We don't know what he advised ministers about the progress of the litigation or the post-Common Issues "changes" to "strategy".^[92]

During the case six separate judgments were handed down:^[89]

Judgment No 1 Applications to alter timetable - Nov 2017[]

Referring to costs and delay the judge said "Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity."^[93][94]

Judgment No 2 Application to strike out evidence - Oct 2018[]

This decision followed a case management hearing and dismissed an application to strike out roughly one quarter of the lead claimants' evidence - some 160+ paragraphs.^[83] The judge commented that adverse publicity for Post Office was not a matter of concern for the court if the evidence was relevant and admissible. He also warned against the aggressive conduct of litigation, particularly in a group action of this nature.^[95]

The Post Office justified its application to strike out passages with five main areas of complaint:-

• Post-contractual- events that took place after the contracts were formed.
• Subjective- knowledge and belief of the claimant and not common knowledge to the defendant.
• Breach- evidence that goes to issues of breach and liability and that cannot be relevant to issues of contractual construction.
• Horizon- evidence that goes to the Horizon Issues which are not being dealt with in the Common Issues trial (the claimants' case, disputed by the Post Office, is that the Horizon system threw up unexplained shortfalls in the claimants' accounting.
• Loss and Damage. This goes to causation, loss and damage; said to be not relevant to the Common Issues trial.

The Post Office argued:-

1. The court had ordered that evidence be served restricted to the Common Issues.
2. There would be insufficient time at trial to deal with the evidence advanced by the claimants.
3. The defendant did not have its own evidence available in response to the challenged passages.
4. There was no benefit in the court receiving such evidence.
5. The court should not make findings on the matters included in the evidence, in particular (but not limited to) matters of breach alleged against the defendant by individual claimants.

The SPMs opposed the application:-

1. This was Group Litigation. What may not be of relevance to one Lead Claimant could very well be of relevance to others.
2. Common Issues 12 and 13, which deal with the principles of agency as they affect sub-postmasters as agents, are without doubt to be dealt with at the Common Issues trial.
3. The Post Office's pleading expressly raises consideration of the matters which the defendant seeks to strike out.
4. The Post Office's own evidence contains passage after passage where the same subject matter is dealt with from the defendant's overall perspective.

In the judgment in the Court of Appeal refusing permission to appeal the recusal application Lord Justice Coulson said that the SPMs had submitted "that the strike-out application arose because the PO wished to adduce extensive factual evidence in their favour but objected to any evidence to the contrary from the SPMs. As they put it. "the Post Office wanted the case decided all one way." There remains a distinct flavour of that approach within the recusal application."^[96] "The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants' case to the very barest of bones (to mix metaphors), if not beyond, and to keep evidence with which the defendant does not agree from being aired at all." Counsel for the SPMs, in a written submission that was quoted and accepted by the judge said the application "appears to be an attempt by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring the evidence which the Court is to consider."^[83]

The application was dismissed.

Judgment No 3 Common Issues - Mar 2019[]

The sub-postmasters and the Post Office had identified 23 issues relating to the contractual relationship between them and about which they disagreed. The judge made findings on each so that obligations under all iterations of the contracts would be settled, both retrospectively and prospectively.^[97] Of the 23 issues 16 were decided in the SPMs favour. The parties agreed that broadly the claiments were more successful.^[98]:33&34 Issue 1 was later described by the judge as important^[89] He found Subpostmasters' contracts are relational contracts. "This means that the Post Office is not entitled to act in a way that would be considered commercially unacceptable by reasonable and honest people."^[97]
In court, Fraser criticised testimony given by Post Office witnesses. The judge said Angela van den Bogerd (Head of Partnerships, Post Office) "did not give me frank evidence, and sought to obfuscate matters, and mislead me."^[99] Fraser commented on the evidence given by Stephen Parker, Head of Post Office Application Support, Fujitsu "I do not consider that Mr Parker was interested in accuracy in any of his evidential exercises.  – I do not consider his evidence in his witness statements to have been remotely accurate, even though he stoutly maintained that it was."^{[100][41]:498}

Of the evidence of one Post Office witness the judge said "The Post Office appears, at least at times, to conduct itself as though it is answerable only to itself. The statement that it is prepared to preserve documents – as though that were a concession – and the obdurate to accept the relevance of plainly important documents, and to refuse to produce them, is extremely worrying."^[89]:523 Fraser said in the Horizon Issues trial,^[41]:64.2

the possibility of future (as opposed to current) criminal prosecutions, or the potentially criminal impact upon individual SPMs, did more than hover in the background to the Horizon Issues trial. Some claimants who gave evidence in this trial were expressly accused by the Post Office of criminal offences in cross-examination in this trial, something which had also occurred in the Common Issues trial.

When the judgment was delivered the Post Office said it would appeal. On 23 May the judge refused the Post Office permission to appeal and set out his reasons on 17 June.^[101] The Post Office applied for permission to appeal that refusal ^{see below} However, during the Horizon Issues evidence, just as the judge returned to court for the final afternoon, Joshua Rozenberg reported "he was told that the Post Office had served an application for his recusal  – . Counsel representing Post Office on the Horizon issues had apparently not seen it. He made no mention of it that morning".^[102]

Judgment No 4 Application for recusal - Apr 2019[]

The Post Office brought in Lord Grabiner QC to make application to Justice Fraser that he recuse himself. Grabiner is widely described as a 'legal heavyweight'.^{[103][102][104]} Statements supporting the recusal application alleged that paragraphs 22 to 25 of Judgement No 3 were findings, or observations that fell outside the scope of the Common Issues trial. Paragraph 24 of that judgment gave the clear impression that the judge has already formed a firm view on these matters that will prevent him from taking an impartial view when they are revisited at subsequent trials.^[105]:17,18 The statement further alleged that the judgment contained critical invective directed at Post Office and that parts harshly criticised Post Office's witnesses on irrelevant matters. The SPMs argued that the Post Office was insufficiently specific and the judge required the Post Office to identify the relevant paragraphs of Judgement No 3. In response, the Post Office cited 110 different paragraphs.^{see box[105]:116}

The recusal application was dismissed on two grounds, no bias, and waiver due to Post Office delay.^[106] Lord Grabiner had been asked to explain the delay in making the application. He replied "It was made at board level within the client and it also involved the need for me to be got up to speed from a standing start. And I am not the only judicial figure or barrister that has looked at this with a view to reaching that conclusion. It has also been looked at by another very senior person^{see below} before the decision was taken to make this application. The delay, such as it is, is very, very tiny".^[105]:279 This submission was rejected.^[105]:280 The judge decided the issue of waiver as a result of the delay in making the application for recusal. "Even if I had found that there were grounds of apparent bias on the face of Judgment No.3, I would not have recused myself. This is because of the fact that the Post Office waited until almost two weeks after it had received Judgment No.3 before it did anything in respect of making an application to recuse."^[105]:274

The recusal application was opposed by the SPMs^[105]:24 and dismissed by the judge.^[105]:289

Judgment No 5 Common issues costs - Jun 2019[]

MacInnes v Gross [2017] EWHC 127 (QB)

The issuing by the Post Office of the recusal application on 21 March 2019 caused significant disruption to the Horizon Issues trial which had started on 11 March 2019, and to the Group Litigation as a whole. The SPMs applied for the costs of that application; the Post Office sought that the judge reserve costs, in the following terms^[98]

the court can't be sure that things will happen in the future that will affect and alter its view about incidence of costs. It simply cannot do so. If it does so now, in my submission as a matter of principle, that would evidence a predetermination or would go towards suggesting the court has reached a view about matters as to how things are going to pan out in the future.

The judge was troubled by this submission. Inherent was a veiled or implied threat that the Post Office will say that the overall outcome of the litigation, or other future issues, has been decided. The Post Office was attempting to put the court in terrorem again. After asserting no predecision he said, "I do nonetheless consider that it is appropriate that I consider whether to make a costs order now  – " After considering cases cited the application by the Post Office to reserve costs was didmissed. "The claimants would not be on an equal footing with the Post Office, a publicly funded body, if I reserved the costs of the Common Issues trial until the very end of the litigation  – I do not however consider that the presence of litigation funding should sway this decision one way or the other. I agree with Mr Cavender that the presence of such funding should not put a claimant in a better position vis-à-vis the correct stage in litigation at which costs should be addressed, compared to a non-funded party. However, regardless of who is funding litigation, a funder or an individual litigant, cash flow is a relevant consideration for most litigants. It is a consideration that might weigh less heavily upon publicly funded bodies such as the Post Office, but even such entities are likely to be concerned to some extent with cash flow."^[98]

Of the SPMs submissions that their award of costs should not be reduced, the court rejected them. "I have decided that the correct approach in this case is to make a percentage reduction to the Claimants' recovery of their costs; I then have to decide what the correct percentage reduction is." Two different particular features of the case were identified.

• The degree of success of the Post Office on some of the Common Issues.

As explained in Judgment No 4 between [266] and [269] the Claimants were not 100% successful.

It is also too soon to say if individual claimants will ultimately prevail in the litigation overall.

• The way the Post Office conducted the trial.

The Post Office put facts in issue at the beginning and during the Common Issues trial which it plainly ought not to have done, and which extended the length of the trial significantly.

"Taking those matters into account, considering all the facts of the case, applying my detailed knowledge of it as the Managing Judge of the Group Litigation and as the judge who heard the trial, and taking account of all the circumstances of the Common Issues trial, I am satisfied a modest adjustment is justified to the recovery of the Claimants' cost  – in my judgment, the Claimants should have their costs subject to a 10% reduction to take account of the features that I have identified." Cost awarded on a standard basis.^[98]
At the end of this section of the case, i.e. of Judgement 5, Mr Justice Fraser expressed the following:^[98]

I have expressed concerns on different occasions before about cost effective conduct of this litigation. Those concerns have simply increased during the course of 2019.  – On any view, the Post Office's own costs will now be in excess of £13 million. The Claimants' costs now exceeded £12.6 million,  – Both sides are therefore spending similar sums by way of costs, and both sides' costs are of a high level. The Group Litigation is part of the way through the Horizon Issues trial  – once that trial is over, the parties should be prepared for a further and detailed costs management discussion with the court. Costs of this order cannot pass without comment.

Judgment No 6 Horizon issues - Dec 2019[]

This judgment concerns the operation and functionality of the Horizon system itself. The hearings took place in March, April , June and July 2019. The hearings were interrupted by the Post Office's application for the judge to recluse, to appeal his refusal to recluse (judgment 4)^{see above}, and his judgment No. 3 ^{see above} The judgment was published in December 2019. Twenty-nine Bugs, errors and defects were identified^[107] and analysed. Witnesses for the SPMs and for the Post office submitted statements and gave oral evidence. Documents that had been submitted, and further documents, the submission of which had been resisted were, after argument and rulings, submitted. These included the 'Known Error Logs' and the 'PEAKs', a browser-based software incident and problem management system used by Fujitsu for the Post Office account. Permission, for two IT experts to be called, one for the claimants (Mr Coyne) and one for the Post Office (Dr Worden)^[41]:498

During this trial, the Post Office issued an application that the judge recuse himself. That led first to Mr Justice Fraser's Judgement No. 4, and then to an application for permission to appeal that judgement^{see below}. The applications and the appeal failed but caused considerable delay.^[41]:498

Court of Appeal (civil)[]

Permission to appeal Judgment No 3 - November 2019[]

Lord Justice Coulson refused permission to appeal judgment No 3 and handed down his written reasons on 22 November.^[108] Before dealing with the 26 grounds that formed the basis of the application the judge set out a number of reasons that he felt militated against granting the Post Office permission to appeal. In short, the judge said:-

• The trial was long and complex - 6 weeks - 60 lever arch files - 20 witnesses of fact. The judgment is 320 pages and 1122 paragraphs long. No judge will ever know more about this case generally, and the Common Issues specifically, than Fraser J.
• The oral hearing of the PTA had demonstrated the danger that consideration of one issue opened up another, and another until the trial is re-fought. That is manifestly not in the interests of justice.
• Many of the PO's challenges are challenges to the findings of fact made by the judge. Challenges to such findings of fact are not open to an appellant in the position of PO: see Fage UK Ltd [2014] EWCA Civ 5 and Henderson v Foxworth [2014] UKSC 41. The judge's conclusions of law are so entangled with his findings of fact that it is neither just nor practicable to endeavour to separate them out.
• The PO made sweeping statements of the judgment which were demonstrably wrong. The PO takes findings "either wholly out of context, mis-stated, or otherwise not correctly summarised".
• The judge dealt comprehensively with why he refused permission to appeal in his separate judgment of 17 June 2019 which itself runs to 91 paragraphs. I agree with the judge's detailed reasons for refusing this application.
• The PO's approach in this application is, as the judge correctly labeled it "attritional". The most obvious example is the PO's anxiety to state what they do not like about a particular proposal from the SPMs or the consequential finding by the judge, without providing any practical alternative. None of this engenders any confidence in the underlying merits or prospects of success of the PO's application for permission to appeal.
• There is no greater or wider right to permission to appeal just because this is group litigation; indeed, from the point of view of practical justice the opposite may well be the case. In any event the SPMC is no longer in use.
• This application is founded on the premise that the nation's most trusted brand was not obliged to treat their SPMs with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a midVictorian factory-owner (the PO's right to terminate contracts arbitrarily and the SPMs alleged strict liability to the PO for errors made by the PO's own computer system, being just two of many examples). Given the unique relationship that the PO has with its SPMs, that position is a startling starting point for any consideration of these grounds of appeal.^[108]

The application was refused.

Permission to appeal Judgment No 4 - May 2019[]

Lord Justice Coulson refused the Post Office permission to appeal the refusal to requse.^[109][96] Of the submission by Lord Grabiner, that he was not the only judicial figure or barrister that had looked at the decision to seek recusal, Coulson said at paragraph 48: "Such a comment, presumably made in terrorem, should not have been made at least without proper explanation of its relevance."^[96] In her legal analysis of the case Kate Beaumont said, "Recusal applications are extremely serious. They are not a tactic to be strategically deployed by a losing party." She quotes Coulson as saying "Without making any finding, he stated that he at least understood the claimants' submission that the recusal application and the permission to appeal application were made in an attempt to de-rail the litigation as a whole."^[109]

The application was refused.

Court of Appeal (criminal)[]

The CCRC considered that Fraser J’s judgments undermined POL’s approach to the criminal prosecutions of these appellants, in particular because of his findings which it summarised as follows:

The three most important of those points, in the CCRC’s view, were:

In March 2020 the Criminal Cases Review Commission (CCRC) referred for appeal the convictions of 39 Post Office applicants. The Commission said it would be referring all those cases, which involve convictions for theft, fraud and false accounting, on the basis that each prosecution amounted to an abuse of process.^[110] In May 2020 the CCRC referred a further eight such convictions, bringing the total to 47.^[111] In January 2021 the CCRC decided to refer a further four convictions, bringing the total to 51.^[112] In May 2021 Helen Pitcher, chair of the commission, told MPs that the organisation was 'not adequately resourced' if 200 cases were to be brought forward for review. She told the justice committee that a shortage of case review managers would take months to address, and that talks are ongoing with the Ministry of Justice about extending funding.^[113]

Hamilton & Others and Post Office Ltd - April 2021[]

In April 2021, after an appeal before three judges, Lord Justice Holroyde, Mr Justice Picken and Mrs Justice Farbey, thirty nine of the convicted former postmasters had their convictions quashed,^[25] with a further twenty two cases still being investigated by the Criminal Cases Review Commission.^[114]
At the commencement of the case three of the applicant SPMs were represented by Paul Marshall and Flora Page, his junior. In December 2020, Marshall and Page resigned from the case under threat from the court of contempt proceedings. That threat was lifted at a hearing in April 2021 before Lord Justice Fulford.^[115] It was Marshall and Page who led the charge on the critical second limb of the appeal, that it was an “affront to the public conscience for the appellants to face prosecution.^{[116][117]:17}
Forty-two historic convictions of dishonesty were referred by the Criminal Cases Review Commission (CCRC) to the Court of Appeal. "The CCRC referred the cases because it considered that two cogent lines of argument in relation to abuse of process were available to each appellant: first, that the reliability of Horizon data was essential to the prosecution and conviction, and it was not possible for the trial process to be fair; and secondly, that it was an affront to the public conscience for the appellant to face criminal proceedings."^[62] Each of the forty-two cases were consided individually. Of the forty-two just two had previously appealed, unsuccessfully.
The Post Office accepted Fraser's findings of the unreliability of the Horizon systems and, in some cases, of inadequate investigation, and/or of insufficient disclosure. In these cases, the Post Office did not resist the appeal on Ground 1 but it would oppose Ground 2. The Post Office divided the appellants into three groups; A, 4 cases where it asserted that both categories 1 and 2 abuse of process applied, group B, 35 cases where category 1 applied, but not category 2, and group C, where neither category applied. The Post Office would not seek a retrial of any appellant whose appeal is allowed.

At paragraphs 79 and 80 of the substantive Hamilton judgement^[62] the court referred to a directions hearing on 18 November. That hearing led to further hearings in November, December, and January. The court addressed three issues:

• information from Brian Altman QC, counsel for Post Office, alleging potential contempt of court by Ms Page, junior counsel for three appellants (all in group B), by improper disclosure of the 'Clarke advice'
• "the issue of whether an appellant whose appeal was not resisted by POL on Ground 1 was entitled to argue Ground 2;"^[62]:79
• an application by journalist Nick Wallis for the release of the 'Clarke advice'. Mr Wallis' application failed.

Mr Altman's information to the court on 19 November led to hearings on 3 December, 10 December and 15 January before the present court, and to Marshall and Page resigning from the case. On 3 December Altman said, "I am confident that the court understands why we brought these matters to the court's attention,  – For the avoidance of any doubt, I should like to make clear that the Post Office has not made application for anyone's committal for contempt.  – We have sought to assist the court as we were invited to do.", referring to signed undertakings, " – the court suggested that all legal representatives sign an express undertaking not to use disclosed material other than for the proper conduct of these proceedings." Lord Justice Holroyde interjected "I thought you suggested that", and Altman replied, "Ultimately, my Lord, I think it was at the suggestion of the court but that is what has happened and that is what has been done."^{[119]:137–141}
For Ms Page it was submitted that there had been procedural unfairness. Mr Henry, for Ms Page said, "Obviously we now know that  – the court can deal with it on its own initiative. I emphasise those word, on its own initiative, – The court did no such thing, my Lords, my Lady. The matter was raised. The jack came out of the box as result of the respondent.  – And then, my Lords,  – but there has been substantive procedural unfairness. This is not mere technicality, complaining,  – I could use the pejorative term whinging, this actually goes to the heart of a fair process.  – what happened next? Well, my learned friend (Brian Altman QC), former first senior Treasury counsel at the Central Criminal Court, and I do not say that ad hominem, but I say that because it is profoundly regrettable that this occurred because the --- " Lord Justice Holroyde interjected, "I'm bound to say it sounds a bit ad hominem." Mr Henry replied, "Well, my Lord, these proceedings are ad hominem." Holroyde: "We're not going to be helped  – I'm afraid by personalising matters." Mr Henry: " – but I do ask the court to consider whether --  – intended or not, is that these are very, very personal proceedings. They are in personam against my lay client, Ms Page."^[120] Counsel for both Marshall and Page argued that no proceedings for contempt had commenced and that it should be for the Post Office as 'respondent quasi prosecutor'^[119]:492 to initiate any proceedings. Mr Lawrence, for Mr Marshall submitted that if properly formulated procedures under rule 48 commenced, the resolution of the issues would not be straightforward. "There was an important issue of law as to whether there is an implied undertaking in the circumstances that obtain here and, if so, its scope." Holroyde interjected, "I thought you weren't addressing us about the facts." Lawrence: "I'm not, my Lord. I'm addressing --" Holroyde: "You are. You are. You're seeking to make a point based upon an account that may have been given or be given by Mr Marshall. I'm afraid you can't have it both ways." Lawrence: " – What I'm seeking to do is I'm seeking to provide some assistance. What I'm seeking to do is to indicate the likely scope of a hearing at which a court, whether this constitution or a different constitution,  – on the potential allegations.^[119]:411.
At the end of this 'For Mention' hearing, the court issued a brief judgment. " – we direct that the question of whether any contempt proceedings are to be initiated against Mr Marshall and/or Miss Page and, if so, whether by the Post Office or by the Court of its own initiative, must be adjourned for consideration after the appeals have been concluded.  – we direct that all further hearings must be before a different constitution."^[121] On 15 January 2021 the court set out its reasons.^[118] It led to Marshall and Page facing the possibility of an action against them, either by the court or by the Post office, for contempt of court. By 4 December barristers, Paul Marshall and Fiona Page had resigned from the Hamilton case. Mr Marshall had written two letters to the court. Of the second Nick Wallis said "It makes for troubling reading."^[122] In April 2021 the matter came before Lord Justice Fulford, Mrs Justice Cutts and Mr Justice Saini when it was declared no further action to be taken. Mr Marshall said “the threat of contempt proceedings from the outset was seriously questionable as a matter of law”.^[123]
The Attorney General instructed counsel as advocate to the court, Marshall and Page were succeeded by Ms L Busch QC and Dr S Fowles, and the court addressed the "the issue of whether an appellant whose appeal was not resisted by POL on Ground 1 was entitled to argue Ground 2."^[62]:79 All counsel at the December hearing agreed that no appellant is entitled as of right to argue Ground 2. An earlier written submission to the contrary was not pursued. However, Ms Busch and Dr Fowles went on to argue that " – the court must act judicially. It would be wrong in principle for the court to permit the respondent (the post Office) effectively to preclude argument on Ground 2 by its concession that Ground 1 is not opposed.  – The appellants have suffered very severely as a consequence of their prosecutions, and a finding in their favour on Ground 1 alone would not fully vindicate them.  – She (Ms Busch) pointed out that there has been an important disclosure since the Commission referred the cases, and submitted that the public interest required consideration of the complete picture."^[124]
For the other applicants, it was submitted all were concerned about delay; only three of the whole group had actively sought to argue Ground 2  – appellants would be content to have their appeals allowed on Ground 1 alone  – however, appellants do contend that Ground 2 is made out in their cases  – if the court concluded that argument should be heard on Ground 2, they would wish their submissions on Ground 2 heard.^[63]
The court ordered that, " – in the exercise of the court’s discretion we would permit argument on Ground 2 by any appellant who wished to advance it. In the event, each appellant did wish to do so."^[62] The court set out its reasoning and highlighted four factors of particular importance:^[63]

1. abuse of court process is an important matter to the parties and the public, notwithstanding that the appellants had not previously applied for leave to appeal.
2. Ground 1 presupposes that there should be a prosecution. the public may legitimately feel  – that a finding in the appellant's favour on Ground 2 adds materially to a finding in his or her favour on Ground 1.  – If in fact an appellant should never have been prosecuted at all,  – the court should make that determination.
3. We are  – satisfied that case management can avoid any risk of these appeals becoming an open-ended exercise in finding facts.
4. Fourthly, we do not accept the submissions that consideration of Ground 2 will cause undue delay in the determination of these appeals.

At the April hearings, after considering the submissions of the SPMs and the Post Office the court stated "In those circumstances, we are satisfied that a fair trial was not possible in any of the “Horizon cases” and that Ground 1 accordingly succeeds in each of those cases."^[62]:126 The court then set out its reasoning in respect of Ground 2. In short the court said:^{[62]:127–138}

1. POL deliberately chose not to comply with its obligations in circumstances in which its prosecution of an SPM depended on the reliability of Horizon data.  – an SPM who attributed a shortfall to a system error was dismissed as “jumping on the Horizon bandwagon”.  – We are driven to the conclusion that throughout the period covered by these prosecutions POL’s approach to investigation and disclosure was influenced by what was in the interests of POL, rather than by what the law required.
2.  – we are faced in these appeals with clear evidence of systemic failures by POL over many years.  – the same failures occurred in case after case, year after year,  – We see powerful force in the points that as late as summer 2013 it was still necessary for Mr Clarke to spell out basic principles  – the response to his advice was to suggest that information should not be recorded, in the hope that it would therefore not be disclosable.  – POL as prosecutor demonstrated, as Fraser J found  – “a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary”.  – POL was able to and did, rely upon its own past abusive conduct by asserting that no previous challenge to Horizon had succeeded.  – POL  – knew that the consequences of conviction for an SPM would be, and were, severe.  – In each of the “Horizon cases” it is now rightly conceded that those human costs and consequences were suffered after the denial by POL of a fair trial.
3.  – most importantly in the context of category 2 abuse, POL’s failings of investigation and disclosure (in Ms Busch’s phrase) “directly implicate the courts”. If the full picture had been disclosed,  – No judge would have been placed in the unhappy position of learning  – that they unwittingly sentenced a person who had been prevented by the prosecutor from having a fair trial.
4.  – the failures of investigation and disclosure were  – so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court.  – By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred. Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion the asserted reliability of Horizon was, on the face of it, reinforced. Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct,  – when in fact there could be no confidence as to that foundation.

Ground 2 therefore succeeds in each of the “Horizon cases”.

The Clarke advice[]

The 'Clarke Advice' consists of two pieces of advice to the Post Office in 2013 by a barrister working for Cartwright King, a solicitors’ firm instructed in relation to the Post Office prosecutions. This document led to the (Cartwright King) CK Sift Review and the Brian Altman General Review. The Sift review "raised the prospect of at least 26 potential miscarriages of justice and caused the immediate cessation of 4 prosecutions. It was concluded in 2014."^[125] It was disclosed in the Hamilton appeals in November 2020.^{[62]:81&86,82} by the Post Office amongst a bundle of post prosecution disclosures at the request of Aria Grace Law, the solicitors for three appellants in November, and was described by Lord Falconer, former head of the judiciary, as a likely "smoking gun".^[126]
The Clarke Advice had not been disclosed to the CCRC prior to its referral of the SPMs' cases to the Court of Appeal.^[63] Paul Marshall said "The Court of Appeal elicited acceptance that the provision of the Clarke Advice was an ‘error of judgment’ and that being done it was determined no further action was to be taken." " – the ‘Clarke Advice’ was pivotal in the Court of Appeal’s finding that  – the Post Office was engaged in conduct that constituted an abuse of the process of the court and calculated to subvert the integrity of the criminal justice system or undermine public confidence in it. Its disclosure resulted in the much later disclosure of the “shredding” Clarke advice."^[127]

Aftermath[]

The Communication Workers' Union called for Vennells' appointment as a Commander of the Order of the British Empire (CBE), made in 2019 for "services to the Post Office and to charity", to be rescinded.^[128] In April 2021, after the overturning of the thirty nine convictions, Vennells resigned as a director of Dunelm and Morrisons and as an associate Church of England minister.^[129]

Inquiries[]

On 26 February 2020, Prime Minister Boris Johnson committed to hold an independent inquiry.^[130] Evidence about the case was also heard by Parliament's Business, Energy and Industrial Strategy Committee on 10 March 2020.^[131][132] On 19 March 2020, in a debate in the House of Commons, Kevan Jones MP criticized former Post Office CEO, Paula Vennells, for her role in the scandal.^[133] Arbuthnot said in November 2019:^[49]

My own suggestion is that the government should clear out the entirety of the board and senior management of the Post Office and start again, perhaps with the assistance of consultancy services from Second Sight, who know where the bodies are buried.

In a written ministerial statement on 10 June 2020 Paul Scully, Minister for Small Business, Consumers and Labour Markets, announced the scope of the Independent Review into the Post Office Horizon IT System and Trials.^[134] Of the review's terms of reference, Lord Arbuthnot said in the Lord's chamber on 6 October "Yet the Government are expressly excluding from the scope of their inquiry the Post Office Ltd prosecution function, the Horizon group damages settlement and the conduct of current or future litigation.  – why have the Government excluded these most important things?" The minister replied the settlement agreed in December was full and final and therefore excluded from the scope of the inquiry  – the Post Office is not conducting any private prosecutions and has no plans to do so  – only the courts can decide on criminal matters, such as whether to overturn the postmasters’ convictions, so it would not be appropriate for the inquiry to look at these questions, especially when the court process is still ongoing.^[135]
The non-statutory inquiry, now titled The Post Office Horizon IT Inquiry by the government and led by Sir Wyn Williams, began work in Autumn 2020 and issued a call for evidence on 1 December 2020. The first public hearing session took place on 15 January 2021^[136] The Justice For Sub-postmasters Alliance (JFSA) had refused to take part in the inquiry. It had described it as a whitewash and called for a full public inquiry instead.
Dr Neil Hudgell, of solicitors for SPMs said "now Post Office officials must face criminal investigation for maliciously ruining lives by prosecuting innocent people in pursuit of profits", and called for the Prime Minister to convene a judge-led inquiry.^[137] After the SPMs successful appeals on both grounds 1 and 2 abuse of process, in an article headed Calls grow for SRA and police to investigate Post Office lawyers, Hudgell is quoted saying the Post Office engaged in ‘legal gymnastics to seek to persuade the court away from finding a clear systematic abuse of process of the criminal law’; in the same article Richard Moorhead, professor of law and professional ethics at Exeter Law School, "the SRA and BSB should investigate whether anyone should be held to account amid professional concerns about who was responsible for disclosure issues."^[138] Solicitors for SPMs wrote last week to the government (DBEIS) asking it to re-establish the inquiry on a statutory footing and to consult again on the terms of reference. ‘The department should be called as witnesses under oath, not have effective control of the inquiry,'  – ‘The Post Office wrongly prosecuted so many upstanding pillars of the community and its owners want to mark (their) own homework – that is unconscionable.’^[139]
On 19 May 2021 the government announced that an extended, Statutory Inquiry into the computer scandal will deliver its conclusions in autumn 2022. Witnesses could now be compelled to give evidence. Mr Scully said he and Sir Wyn had agreed that the context of the events had changed after convictions were quashed and hundreds more were expected to follow. Boris Johnson said:^[140]

We must stand with postmasters to get to the bottom of what went wrong in the Post Office Horizon IT dispute. I heard first-hand the irreparable impact it has had on their lives. That's why, in light of the recent Court of Appeal judgment, we're stepping up our independent inquiry by putting it on a statutory footing, so we can get the answers they deserve.

The University of Exeter commenced a research project into the events surrounding the Bates and Hamilton cases. "The case offers a seminal opportunity to examine important issues in corporate governance; criminal justice; and professional regulation, as well as government and parliamentary accountability. The outpouring of concern that the scandal has prompted reveals a desire for change which needs to be maintained and harnessed.^[141]

Statutory Inquiry[]

Sir Wyn Williams, on 19 May 2021 - Updated 28 June 2021^sic said, " – In the coming weeks, the Secretariat will produce and publish a statement of approach  – In September,  – a further statement of approach which will set out all relevant details  – "^[143] On 28 July the government (DBEIS) issued its fourth Statement of Approach, which included the Inquiry terms of reference. After setting out preliminary and organisational matters - the appointment of solicitors and counsel to the Inquiry - establishment of a website and of premises etc. the statement set out terms of reference, in essence:-

A: Understand and acknowledge what went wrong and key lessons that must be learned.
B: Obtain all available relevant evidence from Post Office Ltd, Fujitsu, BEIS and UKGI to establish the failings of Horizon and Post Office Ltd’s use of information from Horizon.
C: Assess whether Post Office Ltd has learned and has delivered or made good progress on the changes necessary.
D: Assess whether the commitments made by Post Office Ltd have been properly delivered
E: Assess whether processes and information provided by Post Office Ltd to postmasters are sufficient.
F: Examine the historic and current governance and whistleblowing controls are now sufficient to ensure that these failures do not happen again.
"The Inquiry will consider only those matters set out in the preceding sections A-F. The Inquiry will not consider any issue which is outside the scope of the powers conferred upon the Inquiry by the Inquiries Act 2005. The Horizon group damages settlement (albeit the Inquiry may examine the events leading to the settlement), and/or the engagement or findings of any other supervisory or complaints mechanisms, including in the public sector, are outside the Inquiry’s scope."^[142]

Exeter Research Project[]

The research plans:

• To identify and analyse corporate and institutional failure, professional ethics failures, and systematic problems in the criminal justice system.
• Provide a submission to the Williams Inquiry and to lawyers’ professional regulators.
• To suggest areas of reform for criminal justice, professional regulation, corporate governance, and governmental accountability.
• To work on how to change the behaviours and cultures that led to such injustice.^[144]

Working Paper I has examined the Conduct of the Bates Litigation. "This paper reveals wide and deep concerns about the conduct of the Bates litigation by POL  – and their lawyers." "Whether the breaches of CPR suggested by Fraser J’s judgment were accidental, negligent, reckless or deliberate and who is responsible for such flaws needs investigation." "Accountability for the strategy, and operationalisation of that strategy, should not be allowed to rest unscrutinised behind legal professional privilege nor need it do so should professional regulators investigate adequately. One reason is the significant potential for professional misconduct charges to flow against a number of the lawyers involved in this case."^[145]

Possibility of criminal action[]

In December 2019, The Register reported that Mr Justice Fraser would be passing a file on to the Director of Public Prosecutions.^[146][147] A number of cases are under review by the Criminal Cases Review Commission raising the possibility of actions for malicious prosecution.^[6][7]

Compensation[]

In 2021, the government promised financial compensation to the victims of the scandal.^[10] Nick Read, the Post Office chief executive, has urged the government to provide funding for compensation, "The Post Office simply does not have the financial resources to provide meaningful compensation," he said in a recent speech. "I completely understand that government is keen that Post Office should be seen to be fixing its own mess - and through the work being undertaken across the business every day to place the needs and interests of postmasters first, we are doing just that." "But financial compensation commensurate with wrongful conviction is a different matter." "I am urging government to work with us to find a way of ensuring that the funding needed for such compensation, along with the means to get it to those to whom it may become owed, is arranged as quickly and efficiently as possible."^[148]
The governmet announced that SPM "wrongly convicted of offences" will get interim compensation of up to £100,000" ^[71]

Proposed reform on digital evidence[]

In May 2021 the British Computer Society (the official body for IT professionals in the UK) called for reconsideration of courts' default presumption that computer data is correct.^[149][150]

Individual cases[]

• Jo Hamilton, from South Warnborough in Hampshire, claims she first noticed problems with the Horizon system in 2005^[151] and lost £36,000; she pleaded guilty to false accounting after trying to hide the resulting incorrect deficit.^[13] She was originally charged with theft, but was told that if she repaid the money and pleaded guilty to 14 counts of false accounting, she would be less likely to go to prison.^[51] At the time, she was told that she was the only person who had had these problems.^[51] She pleaded guilty, and, under the terms of her contract, she paid her wages for the next ten months to Post Office Ltd, and had to remortgage her house to pay the money.^[51][152] James Arbuthnot was her MP.^[49]
• Noel Thomas, a man who had worked for the Royal Mail for 42 years, spent his 60th birthday in prison as a result of the errors.^[37]
• Sarah Burgess Boyd, from Newcastle upon Tyne, said she lost her life savings in repaying an incorrect shortfall.^[45]
• Rubina Nami was jailed for 12 months in 2010 for false accounting of £43,000.^[153] She and her husband fell behind on mortgage payments and in February 2013 bailiffs seized their home and changed the locks.^[151][153] They slept in their van for six weeks before being given a one-bed housing association flat by the local council.^[153]
• Seema Misra was pregnant with her second child when she was convicted of theft and sent to jail in 2010. She said that she had been "suffering" for 15 years as a result of the saga.^[154]
• There has been one documented suicide in connection with the affair.^[19][20]

References[]

External links[]

• "Post Office Mediation". Archived from the original on 15 December 2019. Parliamentary sub-committee
• Second Sight, the investigators
• Electronic Evidence and Electronic Signatures, a book edited by Stephen Mason and Daniel Seng, Electronic Evidence and Electronic Signatures, 5th edition (2021) and open source where chapter 5 illustrates that in common law countries, computers are presumed to be reliable
• FoI requests by Alan Bates on behalf of JFSA, made via WhatDoTheyKnow under the Freedom of Information Act 2000
• File on 4: Second Class Citizens: The Post Office IT Scandal, BBC Radio 4 documentary, broadcast 16 February 2020
• Justice Lost In The Post, Private Eye special report, May 2020
• The Great Post Office Trial, BBC Radio 4 documentary series, broadcast 25 May – 5 June 2020.
• Scandal at the Post Office, BBC Panorama programme, broadcast 8 June 2020.
• Justice for Sub-postmasters Alliance Campaigning group. Site includes relevant documents.
• Post Office Trial Website with the hearing-by-hearing reporting by Nick Wallis, which has formed the basis of significant media reporting.
• "Hamilton & others -v- Post Office Limited". United Kingdom Judiciary. – Official finding of the April 2021 appeals, and summary
• Text of speech by barrister Paul Marshall to the University of Law on 3 June 2021