The evidence of Stephen Parker – Fujitsu Head of Post Office Application Support

Thursday 11th April – Horizon Trial Day 12

The transcript for this trial as well as expert commentary on proceedings is available at http://www.postofficetrial.com.  Without the efforts of journalist Nick Wallis we would not have access to this information and he relies on money to survive unlike POL who seem to rely on Subpostmasters to survive.  So it would be very kind of you all to put a little something in his paypal jar in order that he can continue to provide us with the coverage we need.

Stephen Parker is now the head of Fujitsu Post Office Application Support.  As a witness called by Post Office Ltd hi job was to counter the allegations made by Richard Roll who was a witness for the claimants and worked at Fujitsu in the early 2000s when Mr Parker was his line manager.  Mr Parker was clearly impressed with Mr Roll’s work.  So much so that he went so far as to give him a personal reference despite the fact that this was against Fujitsu HR policy at the time.

The first part of the cross examination was to do with the several changes Mr Parker had made to his witness statement.  For some unknown reason a very diligent chap in the Fujitsu Support Centre, a Mr Simpkins, allegedly took it upon himself to look further into the PEAK log to see if he could find more instances of transactions being injected into the counter records of branches.  Well he found a few more and on the 20th of March, the day before Mr Parker was due to give evidence, Wombles informed the court of this and Mr Parker’s witness statement was duly updated.

A technical point here was revealed in that the additional search used to find the extra transactions included the following terms; “RiposteMessageFile, RiposteImport and RiposteMessage”.  Very specific terms which it appears were not originally used by this highly experienced team to locate the additional injected transactions.

The RiposteImport command in particular was quite an amazing omission from the original search criteria because it is one of the few methods available for injecting transactions into a counter.  Why it would be left out of the original search criteria is astonishing and worthy of further interpretation.

Mr Parker’s witness statement also revealed that over a period of 4 years, the Post Office Service Support Centre at Fujitsu received over 27,000 calls which would equate to more than 20 per day.    Quite a figure for a robust computer system.

Systemic Errors?

In an article for the Digital Evidence and Electronic Signature Law Review (http://journals.sas.ac.uk/deeslr) (http://journals.sas.ac.uk/deeslr/article/download/2303/2256) I wrote:

“The Post Office consistently claims that the system is used by thousands of operators each day to process millions of transactions and must therefore be considered to ‘be in order’ as the law puts it. This, they suggest, proves there are no ‘systemic’ bugs in the system.”

The Post Office has misused the term ‘systemic’ repeatedly over the years so it came as a surprising revelation in court when Mr Parker stated:

there were only rare circumstances where a coding issue had an estate wide impact and, in those instances, Mr Roll would have been involved in executing avoidance actions to mitigate impact to the estate

They may be rare in Mr Parker’s opinion but his evidence is that they do exist and occur.  There is however more to read into this statement.  These system wide errors were by definition in the system for some time before they were noticed and fixed.  There is no evidence to suggest – and as a former subbpostmaster I can attest to this – that the ‘estate’, the network of subpostmasters, were ever informed that these errors existed before they were fixed.

Mr Green goes on to question Mr Parker about how he set about trying to decide 15 years later how many actual software errors Mr Roll worked on while he was at Fujitsu.  Without access to the referenced spreadsheet it is impossible to comment but this line of questioning did however reveal something else.


Q   And at the bottom we can see that there is an agreement
at least with Mike Crowshaw’s explanation of the
imbalances in periods 10 and 11 which were due to
a stock transfer of  £12,000 which was not settled
correctly to the presence of a corrupt DLL file on the
PC involved.
A   That’s what the notes say, indeed.

In my opinion, and that of others I have spoken to, there appears to be an underlying and recurring theme of major errors occurring in the system when it comes to stock transfers.   These could be between stock units within the branch (the ‘Falkirk’ error) or between the cash centre and the branch (the ‘Dalmellington’ error –although that was slightly different in that it was between two branches).  However in both cases, transfers and remittances, the values involved can be significantly high and involve, initially, a one way transaction out until it is accepted at the receiving end.  The Falkirk error was investigated in court in the trial of Seema Misra (see transcript published at http://journals.sas.ac.uk/deeslr/article/view/2217) where Mr Gareth Jenkins of Fujitsu attempted to prove to the court that the same error had not occurred at Seema’s branch at West Byfleet by examining NT Logs for possible hardware failures.   In the example quoted above they are also looking at a hardware error as a possible cause of the problem, but in this case a corrupt DLL file (dynamic link library which contains many different modules of code that can be used by the calling program).   Without going into detail there is not a cat in hell’s chance of Fujitsu, or anyone else for that matter, being able to go back in their history files and determining for certain whether or not a corrupt DLL file was to blame or not.   I think this is one of the more revealing bits of evidence to date in the trial.

Fujitsu Support Centre is in a bit of a mess

With so few people dealing with so many problems you can perhaps begin to understand (if the consequences had not been so serious) why the administration of the department became a bit lax shall we say.  Perhaps the trial was not a good time to rely on the internal records of their performance to have a go at Richard Roll’s testimony.

Q   Okay.  He says:
“This Peak is the regression of the Peak PC0234448”;
yes?
A   Indeed he does, yes.
Q   And underneath he has put:
“Category 41 — product error diagnosed”?
A   He does indeed, yes.
Q   The reason he does that is because there has been
a regression to a problem that had previously happened
as a result of a subsequent software release not having
caught a fix?
A   That’s the note that the developer has made, yes.
Q   And if we look on page {F/1326/5} please, towards the
bottom of the first blue box, penultimate paragraph:
“Risks (of releasing and of not releasing proposed
fix):  Without this fix, there will be possibilities of
system errors at counter and while doing reversal
transaction”; yes?
A   That’s what it says indeed.

This is not a one off.  This is a service support centre making a balls up of a fix for an error they had already spotted and thought they had fixed.   It happens all the time in the industry and an excellent example comes from a relatively unknown little software company that provided the underlying operating system (NT) to the Horizon network called Microsoft.  In 2004 they withdrew support for the NT operating system but before they did they sent out one final update to correct errors that had been reported to them.   Within 6 months of what was supposed to be the final release of NT, Microsoft were forced to send out another ‘fix’ to solve the problems that the previous upgrade had caused.   Since 2004 to 2018 when the last counter using NT in the Post Office network was upgraded, worldwide users of NT had noted many more additional bugs including some very interesting ones with relation to the evidence that has been produced in court to date. (https://nt4ref.zcm.com.au/bugs.htm)

Whose fault is it?

Fujitsu supply the software but that is not the only component of the overall computer system known as Horizon.  It needs a computer to run on, a keyboard to enter data and a printer to produce the output as well as many other bits and pieces.  If software is not the problem though, Fujitsu wash their hands of it and somebody else has to sort it out even if the problems have created an inconvenient loss to the subpostmaster.  Mr Parker helps Mr Green with this conundrum ….

The system is still playing up in that the screen
is hanging in the middle of transactions — PM did
transaction … but left office for 1 hour — when he
came back the monitor had 141 first-class stamps on
screen totalling £38.07″, see that?
A   Yes.  I see that.
Q   You would accept that that is not how the system is
supposed to work.  Is that fair?
A   That’s fair.

Phantom Transactions

Let me assume that the lay reader understands the concept of a phantom transaction e.g. a faulty keyboard ‘accidentally’ enters a transaction into the computer overnight while the subpostmaster is not present.  Not an everyday occurrence mind you and not one that you would be expecting to look out for if you hadn’t been warned about it (which we never were).  In practice though this would give rise to a discrepancy in the branch accounts – might not be serious but a discrepancy all the same.  The real problem though is identifying the source of the error because if the phantom transaction occurred after close of business the effect would only be noticeable the following evening when stock was declared again and who would think of looking back to the previous days transactions?

Screen Calibration Problems

The Horizon user interface is predominantly touch screen.   When the calibration goes out it is possible to think you are pressing one icon when in fact the system thinks you are pressing another.

It takes someone who has read the transcripts of this trial to understand the significance of this statement by Mr Parker:

Q   And the PM says calibration is fine, not out of
alignment, because that was an issue that sometimes
happened, wasn’t it?
A   There were screen calibration issues, yes.

The expert witness in Seema’s trial made a point about potential problems with calibration of the screen but POL (the prosecution in Seema’s trial) attacked this premise and appeared to persuade the jury that this was not an issue to be concerned with.  This is certainly evidence that the CCRC should take note of.

Duplicate Pouches

In late 2015 I and others became aware of a software error in Horizon that generated substantial losses to the affected subpostmistress because the system had generated duplicate Remittance Pouch Receipts.  Some 5 years earlier this occurred …

Can we just briefly, please, look at {F/589/1}?  You
will see this is non-critical and closed with Solicited
Known Error.  Do you see that?
A   I do.
Q   That is a problem of duplicated pouches, as you see
underneath the two tram lines.
A   Yes.
Q   And the amount that was renned in twice was £25,000.
A   That’s what the notes says, yes.
Q   It’s pretty serious for the SubPostmaster?
A   I would think so, yes.
Q   But category priority is C, non-critical?
A   That’s correct.
Q   And at {F/589/3} if you look down the penultimate blue
box, 5 March 2010, 12.33:
“POL have been informed of the error. Hopefully
they’ll issue a TC to correct loss at the branch. The
underlying problem caused by using previous button
during or just after scanning pouch barcodes, is still
under investigation”.
It is closed as Solicited Known Error?

Apart from the fact that this error seems identical to the earlier Falkirk error and the later Dalmellington issue it raises the question of errors known to be in the system yet the network were never informed about them and what to look for.  Again, from the Misra trial transcript, POL as the prosecution, made the point that if her losses had been caused by an error in Horizon then she WOULD HAVE NOTICED IT.  This was a key point made to the jury and would certainly have had an influence on their final decision which was to find Seema guilty and ultimately to send her to prison.

Conclusion

The major part of this whole cross examination of Mr Parker was to cast doubts on his interpretation of the categorisation of errors and in doing so support Mr Roll’s evidence as being reliable.   As I point out above some major flaws in Horizon were revealed and these may or may not be commented on later by the expert witnesses so I will leave further analysis on these for another day.

However they all lead to the very safe conclusion in my opinion that the Horizon computer system was and remains unreliable and I use the word ‘unreliable’ deliberately because it lies at the heart this trial and how the law as it stands interprets the reliability of a computer system.  Whatever decision the judge reaches in this trial will set an example for years to come in the legal profession because it is such a debatable point.

The barrister Stephen Mason has spent some time investigating this issue – which the judges and lawyers have ignored – and a most notable reference on the reliability of computers in litigation can be found here and is well worth reading – in particular Chapter Six of Electronic Evidence, now it its fourth edition and available as a free download from http://humanities-digital-library.org/index.php/hdl/catalog/view/electronicevidence/16/93-1

The evidence so far in this trial also points undeniably to the fact that Seema Misra’s conviction is completely unsafe and should be returned to the Appeal Court by the CCRC without delay.

 

 

 

 

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Round and Round The Money Tree

So somebody (name withheld but you know who you are Jon Banks) on Twitter has asked my thoughts on why Post Office Ltd (POL) continue to pursue their defence of the legal action brought against them by the Justice for Subpostmaster Alliance (JFSA)

It is extremely difficult to answer that one given that their decision to do so must be reviewed fairly regularly – or so you would have thought given the revelations in court and now the judicial decisions mounting up against them.

As was revealed by Lord Grabiner in the recusal application, this is a board level decision the members of whom are now well and truly enmeshed in the outcome of these proceedings.  The first factor to take into account, in no particular order, then is the damage to the board member’s personal reputation which is at stake.  To lose now, from this point onwards, will be particularly damaging to them because this is no ordinary company whose reputation and very existence (not my words, their own) is at stake, this is THE Post Office.  The darling of the High St, the bastion of the community and the butt of all jokes to do with queues.   If this goes against the board’s decision to proceed then the media will have a frenzy and the blame will be laid firmly at the board’s door.   They have repeatedly stated in their annual accounts that the claim has no merit so it will be particularly interesting to hear what they have to say in this year’s accounts given that they have now lost the first two major decisions in the trial and will bear the majority of the costs of the claimants for these.

The second factor to consider is from the opening statement of the first trial where the Post Office legal team decided to inform the court that an unsatisfactory result will cause an existential risk to the company.  Leaving aside the fact that that statement is of absolutely no relevance to the ultimate decision of the court other than a fairly obvious attempt to bias the judge in their favour (which he rightly ignored) it is a significant factor in deciding whether or not to continue defending the claim.   POL however, have not expanded on the rationale behind that statement nor whether all or just part of the business is at risk.   Certainly the way they do business in the future, in particular the relationship between POL and their subpostmasters, must now change as a result of the first decision.  The fact that they haven’t yet started on this process may be down to a possible appeal but it remains to be seen whether the practicalities of implementing these changes form part of the existential risk i.e. the business model they currently use is not capable of supporting the new regime required.

Next the big question about the source of funding which has to be a consideration when continuing this defence.   The longer the trial goes on the costs mount up as does, in my opinion, the likelihood of them losing and paying out a multi million pound settlement.   Justice should never be able to be bought but POL appear to be playing the bottomless pit card against the claimants forcing them to consider first whether the prospect of ultimate victory is worth the cost of the action.  In playing this card though they need now to explain where this money is likely to come from.

POL appear to be playing with fire here, because the final quantum of the claims has yet to be determined.  I am sure they will have a figure in mind but with 500 claimants and at least one we know of from the transcript of the first trial claiming close to £1 million (richly deserved in my opinion and probably should be double) then we are talking 9 figures at least.  Now the government may own POL but because of state aid rules (Brexit does not come into it) they are restricted not only in how much support they can give but also what that financial support can be spent on.  Already we have seen that POL have taken liberties with grant funding from UKGI and have had to repay £3m they used to fund the litigation to date.  I will be keeping an eye out in their accounts to see where they are sourcing the funds and I can warn them now that using the BEIS Working Capital Loan is a complete no no – I got them the last time they misused that loan and I will do it again if they try the same thing.   So with government funding all but ruled out and a 9 figure sum in all likelihood required then their only source is debt.  That debt would be at least subtly guaranteed by the government if not fully guaranteed and it would not be hard to raise in the capital markets, however that adds to the strain on cashflow and if expected profits fail to materialise then they sink in to a debt spiral.

Right from the very inception of Horizon back in 2000 POL and the NFSP have always gone to great lengths to protect the image of the brand by refusing to acknowledge that the Horizon system was not as reliable as made out.   Evidence is everywhere supporting that fact and in hindsight they must now see that as a very naive mistake to have made because it potentially is leading to the brand disappearing altogether.   Protecting the image of the post office as a trustworthy brand is still probably the most important factor in their determination to see this legal process through to the bitter end. It is well and truly misplaced judgement on their part fuelled by indoctrination of the theme over the years – protect the brand at all costs.

Next there is the distinct possibility that POL will actually win some of the decisions to come with respect to Breach of Contract and Causation.    While these will, if they win any, be in the minority, it will reduce the overall claim and legal costs.  Hard to tell at the moment as I have no knowledge of all the claims but it is another factor the board must consider when taking the decision to fight on or give up.

Finally though there comes the time when defeat will be certain in their eyes.  Taking the claim all the way to the bitter end and through the appeal process is not only delaying the inevitable it is losing their last card to play with and that is negotiated settlement.  That will bring with it a substantial discount and when you are talking of hundreds of millions substantial could mean close to a hundred million.  That is also a factor for the government to keep an eye on as they must approve spending by POL over a certain amount and a settlement figure will certainly need their approval.  The government could even insist on settlement as more and more details emerge from the trial with associated publicity and the likelihood of embrassment looming.  Never forget the additional bonus of settlement is non disclosure either by contract or by the mere fact the legal process ends early.

(I keep forgetting to add the links to the journalists who continue to cover this fiasco)

Nick Wallis – without whose Tweeting we would be deaf – http://www.postofficetrial – drop a pound or two in his paypal jar please to keep him going.

Tony Collins – whose post this morning rings bells with the above – https://ukcampaign4change.com/2019/04/11/how-is-post-office-funding-increasing-costs-of-horizon-it-trial-mp-asks-questions/

Karl Flinders at Computer Weekly – also published this morning – https://www.computerweekly.com/news/2240089230/Bankruptcy-prosecution-and-disrupted-livelihoods-Postmasters-tell-their-story

Thoughts on the recusal hearing

I cannot, by any stretch of my rather vivid imagination, envisage the dilemma faced by Justice Fraser over whether or not he should recuse himself.  Whatever he decides he is clearly establishing a precedent for future Group Litigation Order trials where the claim is spread over several trials.  The most relevant point is that in this case there are to be 4 trials set out at the beginning of the process and agreed by both parties in a particular sequence so that the decisions from the preceding trials can be taken into account when determining the next.  That by definition requires a biased approach.

Major discussion points arising from yesterday include the fact that the decision to proceed with the recusal application was taken at board level by POL as well as the fact that POL will not ask for the Common Issues trial to be rerun but will ask for the Horizon trial to be started afresh under a new judge if one is appointed.

A common phrase running through the recusal application hearing yesterday was:

“Whether the fair-minded and informed observer, having considered the facts, would conclude ….”

I am merely an observer, I think I am fair minded but POL would certainly not agree with that.  Informed?  Well I have kept up to date with what has been presented in court thanks to the efforts of the redoubtable journalist Nick Wallis but I am no legal eagle and I think the adjective ‘informed’ has more to do with legal prowess than information gathering.

However, apply the same phrase to the board members of POL and consider the action they have taken.  Let us assume they are fair minded people, and that they can readily rely on being well informed by one of the most expensive QCs in the country, Lord Grabiner who surely attended the Board meeting to advise them of the facts that they should consider.

The POL board have come to a completely different conclusion than I have.

  1. Judge Fraser has not made any decision on the Horizon trial.
  2. The decision of the first trial stands (subject to appeal)
  3. Therefore there has been no opportunity for any alleged Bias to have any effect on what has transpired in court so far.
  4. Overwhelming evidence has been produced in the Horizon trial to indicate to ANY fair minded individual that Horizon has errors in it and that they have caused subpostmaster losses in the past.
  5. In any rerun of the trial the same evidence will be produced. A recusal has no effect.
  6. As a former subpostmaster, a campaigner for the claimants and someone who has seen at first hand the effect of Horizon errors and the way Post Office Ltd deal with them as well as apparently one of the very few people who have studied the transcript of the Misra trial in depth, I can say with some conviction that POL are going to lose not only the Horizon trial but the Breach and Causation trial that will follow. There can be NO DOUBT WHATSOEVER about the outcome REGARDLESS OF WHICH JUDGE HEARS THE TRIALS.  Bias can have no effect and it would be particulary unjust and unusual if ANY Judge in the land on contemplating the behaviour of POL as a company and of its witnesses would not come to the same conclusions that Justice Fraser may or may not have reached already.

 

 

The POL Board of course do not have the insight into these matters that I have because they have made no attempt to find out for themselves but relied on advice and information from the very people who got them into this mess in the first place and whose incompetence is on display every day the trial sits.

I could also say that about the POL Legal team as well.  I can’t imagine what is going on in the background there because they have the same problem in that they are reliant on the incompetence of POL to provide them with the evidence they need to win the case (they can look but they won’t find any)

So I have no idea why they chose to go down the recusal route although I have speculated about it.  Justice Fraser as an incredible decision to make but I think in the long run whatever he chooses to do will have no impact on the outcome at all.

What the POL board though will have to do now is to explain to the likes of me in Freedom of Information requests, the Government Minister in charge although she sounds as if she is totally out of her depth (a here today and gone tomorrow politician), the media, the interested select committees and sooner or later the National Audit Office and the Police where exactly all the money is coming from to pay for this extravagant and now totally unnecessary trial.   If they for one minute think interest in this is going to wane then think again.

When this is all over and the claimants have won, it is safe to say that the reputations of many if not all of the PO Board members who have elected to continue pursuing this lost cause using presumably public funds will be damaged beyond repair.  Idiots all.

Inside the head of Sir Tim Parker

 

An open letter from me to Sir Tim has met with no response which was always the likely outcome, but there has been some action in court and in Post Office Ltd since then.  Most notably of course the application for Justice Fraser to recuse himself on the grounds of Bias which by all accounts can be no more than a delaying tactic rather than a serious assessment of the Judge’s impartiality.  I have thought about little else since that explosive moment in court only a few days ago and wondered what on earth POL are up to when it is so clearly obvious to even the most impartial and intelligent observer that POL have lost this case hands down based on the evidence and witness testimony already produced in court.

To try and get an understanding of such irrational behaviour I turn to Robert Burns who in a Poem whose title I shall not name for legal reasons finished with these lines:

O wad some Power the giftie gie us
To see oursels as ithers see us!
It wad frae mony a blunder free us,
An’ foolish notion:
What airs in dress an’ gait wad lea’e us,
An’ ev’n devotion!

I have tried all my life to see the other side of the argument and to try and understand how someone can oppose my opinion because in doing so it allows me to either form a better opinion of the situation because the opponent raises good points that I did not understand at the time or to create a better rebuttal to the opposing point of view.   In this case though I just cannot get to grips with what must be going through Sir Tim’s head.

There are four trials scheduled in this GLO, the common issues one has run its course and a decision published, the Horizon trial has stopped just short of the Expert Witness testimony and there remains a trial on Breach of Contract/Causation as well as one likely to try a couple of claimants cases.  POL have lost the first two trials hands down (although the second hasn’t been completed the decision is surely obvious to Sir Tim and his legal team).  These first two trials produce the background and evidence required for the Third trial and again it must now be so obvious to POL’s legal team that they don’t have a leg to stand on in the Third because of the evidence from the first two that they are going to lose that as well.

That all adds up to the fact that continuing with this GLO makes no sense whatsoever.  So why has Sir Tim chosen to continue?

At the very outset of the trial POL declared that an outcome in favour of the claimants would cause an existential risk to the very future of Post Office Ltd and at that time, putting my ‘see yourself as others see you” cap on I could understand that POL firmly believed that they had a good case and could win.  Now nearly through the first two trials POL must see they are marching towards defeat and perhaps we must consider that this existential risk is real.  If that is the case then I can understand carrying on and deploying all the underhand tactics they can muster.  One of these is to force the claimants in to a corner, lengthening the trial and by doing so reducing the eventual amount of money the claimants will receive by way of settlement.   Introduce threats of appeals at every stage of the process then it is perfectly possible that at some point the claimants will have nothing to win as the potential legal costs mount and as they mount the claimants financial backers will be under pressure to have the matter resolved as soon as possible.

So as far as tactics go in this trial I might now understand what is going on in Sir Tim’s head.   There is just one point I would throw in here.  An existential threat to POL is one that would see the business collapse.  Now you cannot say that unless you mean it and in POL’s case you are certain that their only shareholder would allow it to happen.  So it is probably safe to assume that Sir Tim has discussed financing a settlement of the claims with the Government and they have refused to provide the funding.  That is bizarre in itself as it would be political suicide but still a conclusion to be drawn from what we know.

So I don’t know what is going on in Sir Tim’s head, I can only surmise.  But one thing I do know, is something that is NOT going on in Sir Tim’s head.  He has completely overlooked it and should he carry on with this strategy which can no longer be about winning the case on pure legal terms, the thing he has overlooked is going to catch up with him and I would suggest possibly destroy his reputation and future career.  He has a chance, one that is getting slimmer each day as the trial progresses, to recover the situation and I would suggest that he considers the quote from Robert Burns above and do something about it.  It would indeed be a foolish notion not to.

Should he or shouldn’t he?

 

Should Judge Fraser recuse himself from the current trial as requested by Post Office Ltd (POL)?

I am sure that is the question in everybody’s minds at the moment but to answer that we need to consider the rationale behind the request and the consequences of whatever decision the Judge makes on this matter.

First though, thanks to Nick Wallis as ever for pointing out the financial consequences of this recusal application and to Mark Baker for a very revealing legal observation.

The rationale is perfectly obvious and if it is obvious to me it is obvious to the judge also particularly after yesterdays evidence and that is to delay this trial as long as possible and to squeeze the claimants source of funding for this trial dry.  From what I have read in the application for recusal there is no merit at all in what it claims because the outcome of the trial is now beyond any doubt whatsoever, given yesterday’s shocking revelations in court, and that will be complete and utter victory for the claimants.

There can be no doubt in anybody’s mind now that even a replacement Judge will come to the same conclusions that Judge Fraser has reached and will reach.  If the trials are rerun then the same questions will be put and the same answers given.  There is little point in rerunning the trials in the hope that the decision will be different with a different judge – it cannot be. (I have just re-read this while checking the document and it just sticks out like a sore thumb – recuse the Judge by all means but where in your application does it point out why you think the decisions would be any different – ABSURD)

So taking the above into account the Judge has to consider whether an honest and independent observer would consider whether or not the Judge has behaved in a biased way during the course of the trial and if this would affect the decision of the court.   But this is no ordinary trial, this is a Group Litigation Order to be heard over the course of several years and in several different trials.  In an ordinary trial there could be a recusal request at any stage of the proceedings prior to the decision of the court being made.  AFTER the decision you can’t recuse the Judge!  You can appeal the decision.  You can ask for another judge to hear the sentencing trial but you can’t ask for a recusal after the trial has been completed.

In this case though there are several trials and a decision has been made in the first one.  That stands and POL say they are contemplating appealing the decision.  Judge Fraser cannot be recused from it because that trial is over.  He is being asked to recuse himself from this and future trials in the GLO on the grounds that he has displayed bias and has predetermined his decisions based on part on evidence that POL suggest should not have been part of the common issues trial.  POL, it should be pointed out, do not suggest that that very same evidence should not form part of future trials.

The fact is though that this GLO consists of several trials, the first one has been heard and a decision has been made.  No matter who presides over the trial the outcome is the first in several decisions and the decision in the first trial will ALWAYS and HAS TO influence the Judge in the outcome of the future trials.  THAT IS THE PURPOSE OF THE TRIAL and why the sequencing of them is so important.  POL are not saying the Judge did not have an open mind going in to the first trial they are saying he has a biased opinion at the end of it.  He is meant to for God’s sake although Bias implies unfairness which it is not.

So here is a real problem for POL and the Judge to consider (enter Mark Baker stage left).  This recusal application wasn’t written in 10 minutes although it was dated and signed yesterday by the applicant.  POL could not have known what was to transpire in evidence yesterday before they wrote it and bias or no bias the same honest and independent individual who would consider whether bias had been displayed by the Judge would at this stage in the trial have reached a conclusion on whether or not POL were guilty as claimed.  All the evidence has been produced and the only witnesses to come were the experts who can only talk on what has been produced in court already.

More to the point though, has the Judge displayed any bias in the court towards the claimants during this second trial?  No. None.  He has been completely impartial and treated Ms VdB for example with the respect that she doesn’t deserve.

Moving on, there is no doubt that this is a seriously smart Judge.  He knows the game and he takes everything, even the smallest piece of seemingly innocuous evidence in to his brain and cogitates on it.  He wasn’t born yesterday either and he will have been perfectly aware as all judges must be that a recusal application could be made at any time so in carrying out his duties as a judge he will have gone to great lengths to maintain his impartiality.  He will have taken this into consideration when reviewing his decision before publishing it for sure.  Therefore to accuse a Judge of Bias is an extremely serious and possibly career damaging charge if it is upheld.  On the other hand the Judge can determine that the application was wilful in that its purpose was mainly to delay the proceedings for what appears to be financial reasons that would be particularly injurious to the claimants.  Justice cannot be bought and I am sure he will consider this carefully.  As an addendum to that, how many recusal applications can you make?  Will POL do the same with the next Judge?  By their very action at this stage in the trial if a new Judge comes in he will see the tactics of POL and be biased against them from the very start!  No the only reason behind this is tactical and not based on any overwhelming evidence that the Judge is biased.

I understand he has said to both parties that they may appeal whatever decision on the recusal he takes which is unfortunate and of course POL will appeal if he decides to carry on.  Whatever happens the timescale of this GLO has been lengthened considerably which brings me to Nick’s point about costs.  Perfectly true what he says but even though the timescale is lengthened the additional costs will only amount to the rerunning of this current trial because the costs of the subsequent trials will have been accounted for anyway.  In addition the Claimants sponsors will be even more confident that their support package will bear fruit after yesterday’s revelations regardless of who the sitting Judge is.

The consequences though of yesterday’s actions by POL will come back and hit them hard.  As Nick has pointed out the slightest increase in costs will detract from the amount of damages the claimants will receive.  POL relies on the support and trust of the great British public and I am certain that they, the public, will inspire the media to admonish and ridicule this organisation for what they have done.  As I have said before only a complete and utter fool would now buy a post office and that has severe financial implications for all those SPMRs who own one.  They need to sit up and take notice and I think they will.

I have no idea what the Judge will do like all of us.  He is in a horrible place at the moment but having seen the man in action I know he will make the right decision.

Finally a wee word to Sir Tim.  Flashing blue lights may appear before your eyes in the near future and it won’t be as a result of a migraine it will be as a result of something you have completely overlooked.

Evening All.

Out with the Old bring in the New

 

There is a certain absurdity about this current trial on Horizon errors.  By Post Office Ltd (POL) own admission the Horizon system is no longer fit for purpose and it should be replaced.   I am sure they will do so in due course, but when that happens, by everybody’s own admission surely, it will introduce a raft of new errors as happens when any new software system is released.  If POL pretend otherwise and proclaim the new system as being robust and reliable just as they did in 2000 with the current system (and again in 2010 with HOL) then we are back at square one.  Presumably though POL will take more care when dealing with the new errors than they did in the past.  Well based on what we are hearing in this trial the safest assumption is that they will not as they are fighting their past mistakes tooth and nail and one can only surmise that they truly believe the methods they have in place at the moment are the best way forward.  Of course they will also be relying on their present employees to support the new system – the very people in court right now as witnesses testifying to the mistakes they have made.

One thing that I thought had been extremely reliable over the years of Horizon was the counter computer equipment that staff used.  The keyboard, the touch screens, printers and computer itself.  Yes there were breakdowns and replacements needed but by and large they were quite reliable and they lasted well past their sell by date.  But they were getting extremely old.  The workstation computer was at best a 486 processor I believe – ancient and slow in today’s world.   So recently POL decided to replace them all with the latest technology and decided they would plump for the cheapest on the market.  Yet another example of incompetence and one that has truly backfired on them.   Horizon, the not fit for purpose system, cannot handle the new equipment and the errors that this new equipment generate.

I am not going to detail every type of error that the new equipment has introduced but concentrate on one that I was reminded of yesterday in the trial.   Up until then I had no idea about problems with the old touch screen monitor causing phantom transactions but I can understand how these errors may have arisen.  Actually an important point – 10 years owning a post office and I was never told about the possibility of this error occurring.   Anyway, hearing of this error reminded me of Seema Misra’s trial and how her expert IT witness Prof MacLachlan had extensively criticised the keyboard layout AND the touch screen layout but he never gave any thought to the possibility of problems with the screen hardware itself.  This error would have been in the system from the start until that hardware was replaced,  It would be impossible to trace in log files.  Mmmm.

The discussion in the trial yesterday also talked about the 00 key and the mistakes that that has enticed out of SPMRS over the years, just as Prof McLachlan pointed out in 2010 and that key and the problems it makes for subpostmasters is still there.

I am no one man call centre but I do have access to social media platforms where thousands of SPMRs meet and discuss PO issues so when the rollout of the new counter terminals started across the network I was able to note reports of strange errors starting to happen.  One of these was and as far as I know remains, the most prevalent.  The built in swipe card reader causes lots of problems but the generic effect and most likely the cause are the same.   A user swipes a mag stripe card and, occasionally, instead of the system accepting the data on the card as it should, whether that be an account number or a name or in some cases a balance, the system instead interprets it as a sequence of key strokes entered into the keyboard by the user and this causes a wide variety of different outcomes such as purchases of stamps, cash deposits etc in fact any event that can be entered via the keyboard during normal operation.   This effect would also happen extraordinarily fast so all the user can see is the contents of the screen once the computer has processed the string of characters from the mag stripe card.   The reason I know this is the cause is because several times users have reported the final screen as showing a string of characters in a field on the screen such as an address for a postage item that could only have come from the card because of the format.   Not only that but some of that data is confidential and can now be clearly seen by a third party.

It seems to me that this error is down to the cheapness of the equipment that was bought.  I am no expert in programming for mag stripe card readers but I do know that they have a start and end byte/character that should be captured, processed and checked to ensure that the data the system has received in between the start and end characters is that which is recorded on the mag stripe.  I think that this is generally done by firmware on the card reader itself and error codes are returned to the calling program should the data not be verified after the card is swiped.  Whatever the reason, whether Lenovo do not include this industry standard feature on its card readers, or Horizon itself does not interpret the data received properly, it is a mess and clearly this computer equipment was not tested thoroughly before it was purchased for no doubt a very significant sum.

Just another item to add to the long list of incompetency displayed by the current management of POL who continue to think they are the ones who can fix the problems they created.  New blood is desperately needed in this organisation so I hope Tim Parker chooses Ms Vennells replacement wisely.

 

 

 

 

An Open Letter to the Chairman of Post Office Ltd – Mr Tim Parker

An Open Letter to the Chairman of Post Office Ltd – Mr Tim Parker

Dear Sir

I note with interest your initial comments on the findings of Justice Fraser with regard to the first trial of the Group Litigation Order (GLO) brought against the company you chair Post Office Ltd (POL) by the group of claimants known as the Justice for Subpostmasters Alliance (JFSA).

We share at least two things in common.  Our first name of course but also a love for the Post Office Network (and I use the word Network not Limited advisedly).  It is the first of many sad reflections on my part that we seem to share no other common ground and your statement is testament to that.

This will be a long letter no doubt.  I have many points to make for you to consider but let me first dissect your statement to see exactly where we disagree and perhaps why.

You have had a week or so to consider your response to this very lengthy judgement and I have had only the weekend to do so; but have I? I have been considering these matters for several years, fought hard against some including the role of the National Federation of Subpostmasters (NFSP) and as far as I can see my thoughts on these matters have been correct all along.  However I am the first to accept that my thoughts are, have been, and will be, of little consequence to the future of POL but I hope you take the time at least to consider what I have to say now.

I have been and will continue to be critical of POL until certain things change for the better but first I must apologise because in the past I have been rude and disrespectful to the management of POL and in this letter I will continue in that vein because I can find no other way of expressing a) my deep dissatisfaction in what has transpired here at the hands of a management team that should have done a lot better and b) my anger at the continued unnecessary suffering for hundreds of claimants whose lives are getting shorter each day and some of whom have already passed away without the knowledge that their claims have been vindicated.  The Judge in his decision has made this point perfectly clear for you to consider and time, Sir Tim, is of the essence.

You have made a statement on the Judge’s decision but you also were signatory to the annual report last year where Ms Vennells stated:

 

On 11 April 2016, a High Court claim was issued on behalf of a number of postmasters against Post Office in relation to various legal, technical and operational matters, many of which have been the subject of significant external focus for a number of years. Post Office is robustly defending the claim, believes it lacks merit, but welcomes the opportunity to have these matters resolved through the Court managed Group Litigation Order.”

 

Obviously you seriously believed that the claim lacked merit, but now you know the truth.  Why Sir, did you believe the claim lacked merit?  Yes your QCs fought hard in court to win, and truth be told, to win at all costs, but in doing so, as I pointed out in one of my blogs, POL lost the battle before the result was known.   Everything the Judge has laid down in his decision notice is now the real truth of the matter whether you think he is right or not.   You remain in charge of an organisation that has let this happen and now by your own admission in yesterday’s statement you say you intend to change as a result of what he has said.

 

You say you are considering an appeal.  Against what I do not know but have you considered the consequences?  By appealing you lose whether you win the case or not and I am not sure why you do not understand that.   Surely the media coverage over this first decision is enough to persuade you that public opinion of you and your management will be completely destroyed should you act to delay a fair settlement for each of the claimants.  Some of these claimants have died already without hearing the result of their innocence being proven.  Sadly more will do so should you seek to extend the life of this court hearing for several years using money I might add that comes one way or another from the public purse.

 

You have issued this statement in response to the verdict:

 

We take this judgment and its criticisms of Post Office very seriously. While the culture and practices of the business have improved in many ways over the years, the Judge’s comments are a forceful reminder to us that we must always continue to do better. We have taken his criticisms on board and will take action throughout our organisation.

 

“Post Office will continue to defend the overall litigation, which has been underway since April 2016 and is scheduled to continue through four trials until at least March 2020.”

 

Let me dissect this piece by piece.

 

I find the use of the word ‘Culture’ particularly abhorrent.  How can anyone in your organisation currently, who oversaw, supported and implemented all the flaws in your company over the years, be expected to change their way of doing things particularly given the culture that exists in your Head Office which perpetuates a ‘them and us’ relationship between Head Office staff and Subpostmasters?   Look around you in your Head Office and see how many former subpostmasters are employed there.  You know the kind – successful businessmen and women with commercial retail experience that know the challenges of running a post office branch inside and out.  There are none.

 

You have taken the Judge’s criticisms on board but what of the people that over the years have pointed out your company’s failings and have now been proved correct in their assessment by a distinguished Judge?  Is there not a place for them at the top table to oversee the changes that need to be made?   The culture in your organisation has, at the moment, no place for criticism.  External criticism is rejected out of hand and I can only presume internal criticism receives the same treatment.   Most notably an internal POL document presented before the court highlights the Horizon system as not fit for purpose while you have said in the last year or so that changing Horizon would be so full of risk it is not worth doing and nothing has therefore been done about the inadequacies of the system that may now result in hundreds of millions of pounds worth of damages.

 

Had you listened to these critics – I noted with interest from the trial that Ms Venells advised her subordinates to take my report of an error in Horizon seriously then abruptly cancelled the investigation into an error that is at the forefront of this current trial  – then surely sir you can see that you would never have been in this position.   This trial reflects only a small part of what is wrong in your organisation and only critics have the answers you need to make it fit for purpose.

 

It seems sir that while taking the Judge’s decision and criticisms seriously you are not considering the consequences of his decision carefully enough.   Take the claimants cases that are currently before the CCRC and awaiting the decision of this trial.

 

I understand why the CCRC will wait now for the decision from the current trial but I am certain that with this decision they now no longer need to wait because the Judges own words in this decision provide more than reasonable doubt that these convictions are unsafe on a number of grounds.  I cannot go into detail about these matters here but if you were to give me 30 minutes of your time in private I could easily convince you that what I am saying is true.   Surely it is in your power now to avoid the further embarrassment of POL, by intervening and recommending that these claimants’ cases be now returned to the court of appeal where POL will offer no evidence.  It is not though the only consideration you should give to this matter.   By far the most important reason for contacting the CCRC is to not extend the excruciating delay that the claimants have faced in waiting for their convictions to be overturned.  I cannot understand and have never understood, despite repeated reminders to your previous CEO Ms Vennells, that her Christian beliefs did not encourage her to investigate on her own these obvious miscarriages of justice and ensure they were overturned earlier.  Any delay on your part now not to do the same will be met with derision and only increase the public humiliation your company and your personal reputation will deserve.

 

Finally on this matter, a few years ago I reported certain elements of the evidence before the CCRC to the police and they opened a case file.  I was interviewed by two detectives who took my evidence seriously and who investigated the matter further.  They found that as some of the evidence they required was in the hands of the CCRC they would put the investigation on hold until the CCRC had decided on the case in question.  I am as certain as I can be that a criminal investigation into the conduct of some of your employees will eventually take place and I believe that custodial sentences will follow.    I ask you why it should fall to the likes of me to report such alleged offences?   It smacks of conspiracy that the management of POL have failed to raise the same concerns to the Police having had the evidence presented to them many times, one of which was a TV programme watched by millions.

 

Your immediate action is also required with the National Federation of Subpostmasters who you fund.  Justice Fraser has correctly identified the lack of independence of the NFSP and criticised this organisation’s involvement in these matters.   I am certain you have never given much thought to this organisation’s role in the network but what was once a strong and reliable representative body for subpostmasters has become, at the top levels, a group of people more interested in themselves than the people they were meant to serve.  Over the years they have systematically quelled justified criticism of their organisation from within as well as choosing to ignore the wishes of their members in order to promote POL and projects such as Network Transformation which were from the very start detrimental to existing subpostmasters that at that time were paying for the privilege of belonging to that organisation.  From a Horizon perspective , as early as 2000, from NFSP Executive committee minutes, they adopted POL’s approach to criticism of the system saying that to publicly decry the reliability of Horizon would be to put at jeopardy the public’s trust in the Post Office network.  They are as complicit in this case as POL and I imagine lawyers will be considering the advice they have given new entrants into the network over the years carefully.

 

There is more to say about the NFSP, some of it deeply unsavoury and to do with certain individuals within that organisation – mostly long gone now – but to be fair the vast majority of the people that have served in meaningful roles over the years have devoted their time and efforts into making the network a better place for all to work in and I applaud them for doing that.  However there is no turning the clock back.  The independence of the NFSP has gone as has the trust that subpostmasters must place in that organisation in order for it to have any purpose at all in the future of the network.

 

Funding must be withdrawn from this organisation immediately and no assistance provided to settle the mess they are responsible for getting themselves into.  They have no future as a representative body and any statements they now make one way or another will be met with the ridicule they deserve if indeed they are not ignored completely.    Given the amount of money you have agreed to provide them with over the next few years that will be a considerable saving to POL and will help meet your funding requirements for the cost of this litigation.

 

In not dealing with criticism properly, in not accepting that the reason it was brought to your attention was for the benefit of the company not its destruction, you have opened up a minefield that requires exploration for large scale cover ups.  At the centre of this investigation will be how you dealt with Second Sight, who it appears were getting too close to the truth when they were relieved of their duties and who are now gagged from telling the truth by a non-disclosure agreement.   Public trust in Post Office Ltd is paramount for you, and whoever succeeds you, in trying to sort out this mess so it is of vital importance that Second Sight be reappointed to finish the job they started and their gagging order lifted.   I am certain the Judge will have something to say about that particular item in his decision on this current trial.

 

In conclusion, the action you need to take within your organisation immediately is clear.

 

  1. Consider immediate settlement to the claimants – prolonging this trial will only lead to further embarrassing disclosures and more importantly will prolong unnecessarily suffering for the claimants
  2. Contact the CCRC to insist they send back all cases before them to the Appeal Court
  3. Re-instate Second Sight to complete the work they started
  4. Withdraw funding from the NFSP
  5. Appoint appropriate subpostmasters into senior management positions to start the process of culture change

 

At the very least sir, sit down with a glass of whisky or similar and consider carefully your rationale for not taking any of the above actions, which I think is the most likely outcome, and think of the consequences when the result of not doing so will come back and haunt you.

 

With best regards

 

Tim McCormack