Gulliver’s Travels (The Swift Sift)

The Swift Sift

A line by line sift of the Swift Review obtained under FOI by the wonderful Eleanor Shaik https://www.whatdotheyknow.com/request/823579/response/2099393/attach/5/Information%20for%20release%2014.pdf?cookie_passthrough=1

Since 2009 POL has faced complaints from SPMRs that cash shortfalls in their branches, for which they were held responsible by pol were caused by pol,s computer software, known as Horizon, arld pol’s wider operational model

Here Swift, and presumably POL, acknowledge that the complaints being raised are not just about Horizon yet POL would fight in the GLO to restrict the litigation to looking at only the computer system.    He is also off to a bad start because complaints about Horizon started the day after it was first introduced in 2000.   There is no indication that he had a list of these complaints, how many there were and of what nature.  (in 2012 POL had prepared and used internally a spreadsheet known as the Horizon Issues Spreadsheet)

We stress that we have been instructed on behalf of the Chairman to perform an independent assessment of the work which has been done already to address the question whether there is any further steps that might reasonably be taken now by POL

Work that has been done already.  This report is published in 2016.  The Clarke Advices published in 2012.   He makes no mention of having seen the Clarke Advices and one has to presume they were not provided to him.

This has highlighted two principal questions (1) What has already been done in tl’re 2010-2015 period?

POL stopped prosecuting SPMRs in 2013 – that is something that has been done, a decision taken, something of extreme significance, but he makes no mention of it. Yet in the next paragraph “we have concentrated on four areas: (a) criminal prosecutions;”

Nor have we sought to establish the precise circumstances of any individual SPMR’s case

I don’t know if it is an established concept in the field of Law but I would have thought if you can break down the case against one conviction then surely it would cast doubt on all of them and no better place to start than Seema Misra’s

Paragraph 10.4 – he meets with Fujitsu and Gareth Jenkins…

We have not seen, and have not asked to see, the contract between POL and SPMRs

A Swift review indeed.   In 2016 there were two main contracts in place, the original and the new NT contract.  Observing differences in the wording between the two would have helped him to understand the situation a little better.   The contracts after all formed the basis of Part 1 of the multi million GLO.

Note: a reminder to myself – I am now on page 8 of the review and as yet have not come across any particular reason for not providing this report to the POL Non Executive directors.  Keep looking Tim…

So Swift has read the judgement in Lee Castleton’s case and assumed the decision and case law quoted to be perfect.   If only he had delved deeper he might have started to get an inkling of the real underlying problem.

We do not understand the basic history and scope of the Horizon system to be controversial.

A fatal flaw in his understanding and a reflection of what POL were telling him.  By 2016 POL had completely forgotten about the controversy surrounding the system when it was first introduced in 2000.

and take this summary from various documents including Second Sight’s Part One Report, legal advice provided by Brian Altman QC, witness statements provided by Gareth |enkins of Fujitsu in POL legal proceedings against SPMRs

And there we must surely have a discreet admission that Swift was not provided with the Clarke Advice but surely to goodness Altman would have told him about it?

the term Horizon to refer to the computer system used by POL and the SPMRs onty. We clo not incorporate within that term a wider definition of all training, assistance and processes the POL have in place to allow Horizon to be used; we find that wider definition which has been used by others to be confusing for our purposes.”

Confusing?  Certainly because Swift started by saying this ….. And POL’s wider operational model

Since 2009 POL has faced complaints from SPMRs that cash shortfalls in their branches, for which they were held responsible by pol were caused by pol,s computer software, known as Horizon, arld pol’s wider operational model

We note that Horizon is used by over 68,000 users in the 11,500 branches processing more than six million transactions every working day,

As soon as you are provided with that information your mindset is that Horizon (and the wider POL operational model) functions perfectly ….. And it affects your judgement when analysing the situation further.  Many many people don’t get past this point in their understanding of what went wrong.

One issue which has occurred with some frequency is that an SPMR has falsely declared onto the Horizon system the cash and/or stock position in order to conceai a discrepancy. This is likely to constitute the criminal offence of false accounting. When this has occurrcd it has rcndered it more difficult, if not impossible, for POL (and possibly the SPMR) after the event, to establish the last point at which the accounts were correctly declared and locate the circumstances in which the discrepancy occurred,

Note: I am copying and pasting these extracts from a PDF file and the ‘system’ makes a few mistakes in interpreting the wording.  I am not going to keep correcting them as the text is understandable I think.

He is correct in one assumption here that it is almost impossible to establish where the discrepancy occurred if the discrepancy is concealed from view.    Yet everyday to this day and onwards, nearly every SPMR in the country is regularly ‘hiding’ discrepancies from the view of POL by either taking money out or putting money in to ensure that the daily cash declaration matches what is in the safe.    And of course the old chesnut of failing to appreciate that gains to the SPMR are hardly ever reported.   POL continue with their bizarre ‘wider operational model’ to this day not having learned any lessons it seems from the past.

Training and Support – what on earth is the point of a review to look into the possible failings of an organisation in this regard if you merely ask that organisation what they think they do?   Swift does not interview any SPMRs although I am sure Second Sight will have reminded him of their investigations into the lack of training and support.

The third party (such as Bank of lrelancl) will receive their own records clirectly from the equipment, anci discrepancies between those clectronic rccords and thc Horizon rccords manually inputtcd by thc SPMR may require adjustrnent‘”

Here he is talking about ATMs.   This is where the ludicrous nature of asking a senior member of the legal profession to investigate a computer system and not a forensic accountant highlights itself.   He is quite happy to declare that there are regular discrepancies but considers no questions of how these might arise.   And he starts his next paragraph with this: “It is unnecessary to go into further detail “

POL has shown us figures that indicate that between around 3,000-4,000 audits took place a year in 2011-2014. Only a small proportion of these were random; most were either risk-based or on the occasion of a change of SPMR.”

That will interest Mr Christie I am sure.  A small proportion were random …   11,500 branches should expect and experience a random audit every 12 months.  Had that been in place POL would not be in the mess it is today.    In passing a thought.  As a basic non entity in the banking world in London during the 90s even I was subject to a ‘personal’ audit.  It was company policy in every bank I worked with for employees to take 2 weeks continuous leave every year in order to check if we were up to no good and a pattern could be detected.

Swift writes that in total 47 cases were submitted to second sight for investigation.  Perhaps he considers that to be the extent of the problem.  No consideration given to hundreds if not thousands of complaints about the system from SPMRs from the date of its introduction in 2000.   In his hurry to provide a swift report Swift fails to grasp the extent of the problem and throughout the review relies entirely on what POL are telling him.

Second Sight noted that POL had disclosed to it two defects in the Horizon software which had impacted branches in 2010 and in 2A1’1,-2A12, as’well as a further (unspecified) incident (paragraphs 6,4-6.10)

I wish I could sit beside Swift as I take him through this next bit.   It was staring him in the face and he missed it completely although he provided all the evidence in his report.

Note : Swift review is in early 2016.  Second Sight Interim Report 2013.

Second Sight noted that POL had disclosed to it two defects in the Horizon software which had impacted branches in 2010 and in 2A1’1,-2A12, as’well as a further (unspecified) incident (paragraphs 6,4-6.10)

Jump forward to the end of the document …

We have also seen a reference in articles in Computer Weekly in November 20L5 to a further bug which lead to a branch being recorded as having remmed out cash to an outreach branch four times instead of once. Having raised this, we have been provided with Fujitsu’s analysis of this bug to POL clated 10 December 2015 which explains that the problern arises wherc a ccrtain succcssion of actions concerning cash pouches are entered, irnd then the system is left to time out, rather than being logged out on completion. Fujitsu describe the issue as having occdrred 112 tirnes since 2010

This is the infamous Dalmellington bug and there is a lot more to be said about this but for the meantime… 112 times since 2010 … 2010 and Second Sight weren’t told about it?   You would think a bug that replicates itself so many times would have been ‘fixed’ as soon as they knew about it wouldn’t you?   I think we might need to rename the Dalmellington Bug as the Trousers Down bug or the Anti-Truth Serum Bug or the Codswallop Bug … 

If Fujitsu and POL knew about it in 2010 and it wasn’t fixed until 2016 what was its status in the interim?   Does it appear on the Known Errors Log or the Known Known errors log or the Known Unknown Errors log?

So back to where I was in the Swift Review

Actually skip quite a lot here on the Second Sight Reports and Parliamentary debates and move to this:

Mr Roll’s participation was the only genuinely new information we have seen in the broadcast, but it was of potential significance.

Really?   What of the disclosure of the memo citing Jenkins as a recipient of advice whether or not to alter branch accounts without the knowledge of the SPMR and only days before he was due to be an expert witness at Seema’s trial?   Maybe it is me that is mistaken without looking at the show again but I thought that was when it was first revealed.

As far as conspiracy theories go, there is no need for Swift to be devious at all in this review.  It is internal and the only people who get to see it are the Chairman and the General Counsel.  If the memo was in the broadcast why on earth did he not think it was relevant new information?   Because he had already been told about it presumably but even so it should have been raised in his report.

POL has informed us that as at the beginning of December 201.5, it has spent some €10 million on this rnatter. It has incurred over €1.5 million on Second Sight and some f,3.3 million on other professional fees, including legal advice. The investigatio-ns by POL of each of the 150 Scherne cases cost €3.7 rnillion. More than f500,000 has been spent in POL’s contributions to Scherne applicants receiving professional advice on their complaints

In POL’s annual report for 2015/16 no mention is made of this expenditure nor of any risk exposure to the problem although my understanding is that POL had already notified their insurers of potential future legal claims against them.

We have not soughf to review the safety of any particular indivictual’s conviction

Sorry but surely this is not only the most important point in evaluating the potential risk of liability to POL but the most relevant point that could possibly be addressed by a leading QC.   Had he spent all of his time reviewing only one case and coming to the conclusion that POL’s behaviour was reprehensible then the GLO would never have happened.

It has been suggested to us that PoL should write to the CCRC accepting that the prosecutions should llever have been brought and requesting that they be referred to the Court of Appeal.”

Which brave person suggested that?  Swift’s meeting with Second SIght was anonymous – Ron and Iain did not know why he was sitting in on a meeting ostensibly with the new chairman.   The purpose of Swift’s review was only known to a few people so which one of them was suggesting the truth?

We emphasise that none of the Second Sight reports identify systemic flaws in the Horizon system likely to have caused the losses incurrecl at the Scheme branches. Rather, operator errors at the counter is the usual cause identified by Second Sight (with the likelihood of those errors being exacerbated by a problems in tlaining and support). We address Horizon in more detail in the 32 next section, but POL is entitled to note at this point in time that there is no eviclence that the Horizon system – i.e. the computer system – is responsible for the losses which have resulted in convictiorts.

Such a key key point and he is correct in his assumptions.   It is highly likely that the computer system did not cause the majority of losses associated with the scandal.  It is highly likely that Fujitsu found ‘most’ of the errors that existed in the system and dealt with them accordingly.   BUT IT IS CERTAIN that Horizon did contain errors that could have generated losses in the accounts and it IS CERTAIN that by the very name of the log they kept that Fujitsu only knew about the KNOWN ERRORS and not the UNKNOWN ones.

And yes there is no evidence that computer errors caused the actual losses that led to convictions but there is ABSOLUTE UNDENIABLE OVERWHELMING evidence that FUJITSU AND POL NEVER EVER LOOKED FOR SUCH EVIDENCE.

Just as anybody can make the correct assumptions, anybody can take those assumptions and jump to entirely the wrong conclusion just as Swift has done here and it becomes the basis for POL’s mind set running up to and into the GLO (and as far as my pal Patrick Bourke is concerned after the GLO as well)

We have also reviewed a small sample of the reviews conducted by CartWright King in Schcmc cases Without being criminal law experts, it also seemed to us that Cartwlight King were approaching their review logically ancl in detail, being unafraid to require clisclosure be rnade whcre thcy felt it appropriate, and to recognisc wherc it was irrclevant in the light of the particular facts of the case.

98 We are accordingly content that POL has acted reasonably in its handling of disclosure issues arising in relation to past criminal prosecutions.

This is totally bizarre and requires a legal expert to interpret it.   My recollection is that Clarke advised POL to disclose to Seema Misra all relevant material which they chose not to.

POL has referred us to the Cartwright King disclosure review exercise

I am a bit lost as to whether or not this refers to the Clarke Review but what is absolutely certain, and confirmed by Patrick Green QC in a comment to Nick Wallis is that if this Swift Review had been disclosed to the GLO then the Clarke Advice would almost certainly have come to light then as well.  I am not a fan of conspiracy theories particularly when there are so many people involved but when that number gets restricted down to a very few then conspiracy becomes more of a possibility.    Parker knew this report existed and Parker approved expenditure on the GLO every step of the way.

Sometimes it is not what is in a document but rather what is not.   As Swift ‘reviews’ the legal issues in his report he fails to mention the number of prosecutions that did not produce a guilty verdict – a significant omission perhaps?

However, we harbour some doubts about whether the bringing of a charge without sufficient evidence to provide a realistic prospect of convictioncould be said, under the criminal law, to cast doubt upon the safety of the conviction of a defenciant who has pleadecl guilty.

Where did this chap go to Law School?  He is no criminal lawyer but surely to goodness he is perfectly aware that in these peculiar set of circumstance the prosecution were the sole owners of all the evidence available and the defence had only that evidence that POL the prosecutor decided to release to them.

The important point is the ease with which such bugs are noticed ancl correctecl, with remedial action to any financial position taken where necessary.

EASE???  Where on earth did he get that from?   I could write an essay on that word alone.   I would really like to sit down with Swift and explore the origin of why he employed that word here.  It is a point well made by Paul Marshall the barrister with regard to Seema Misra’s trial that time and time again throughout her trial, Tatford the prosecuting QC referred to how any bug in Horizon would be spotted by the operator straight away.  That more than anything convinced the jury to convict her and Tatford should be ashamed.

Due to the antiquity of the issug Fujitsu could not confirm to us whether any other branches had been affected by this problem.

This refers to the Callendar Square bug.   I have absolute evidence provided by Gareth Jenkins himself that Fujitsu did not look to see if this bug had affected any other branches and that evidence was provided in the transcript of Seema Misra’s trial which Swift says he read.   I could rub his nose in it.  This was not about the antiquity of the problem and if anybody who is reading this that later becomes involved in legal action against Fujitsu get in contact and I will provide you with all the details.

Fujitsu explained to us that it reoccurred because a particular balance reappeared each year in the annual accounts between 2011.-2013 until it was drawn to their attention and fixed.”

Fixed?  Really?  They thought they fixed it but it re-appeared teh next year.  And as to how easy it is to see a bug reveal itself to the operator, one of POL’s own branches encountered this error and didn’t notice it at all.

Fujitsu describe the issue as having occdrred 112 tirnes since 2010 but that 108 of those rvere correctecl at the time either by a transaction reversal by the SPMR spotting the duplication, or by a Transaction Correction issued by POL, Four occasions appear not have been correctecl at the time. None of the uncorrected instances related to Scheme cases.6

I mentioned this earlier about the Dalmellington bug, but on the subject of how easy it is to spot a bug by the operator?  Corrected either by a transaction reversal by the SPMR who spotted it or a TC for the ones where the SPMR did not spot it.

We have seen nothing to suggest that these specific bugs identified have been the cause of wider loss to SPMRs in the Scheme cases or otherwise. We see no basis upon which to recommend any further action in relation to those identified bugs now

Again so focussed on ‘proving’ the prosecutions to be based on robust Horizon that they lose sight of the real issue.    I wonder what Swift makes of it all now with so many more bugs disclosed during the GLO and almost certainly one of them at least causing the losses that the SPMR was accused of stealing.

Second, the Deloitte reports, or at least the information contained within them,

may be disclosable under POL’s on-going duties as a criminal prosecutor. We

suspect that it is likely that such functionality would have been something an

SPMR’s defence team would have considered relevant to their case

Clarke and now Swift recommend disclosure but none was forthcoming.   Anybody in possession or having knowledge of both reports within POL Legal Department who failed to act on these made a career ending (possibly freedom ending) decision and so far have got away with it.   What on earth will Sir Wyn make of this?

Again as an aside, something that is missing rather than included in the report is any mention of CCTV which remains to this day the only way POL could possibly provide conclusive evidence of fraud or theft.

POL commission forensic accountants to review ,the unmatched balances on POL’s general suspense account to explain the relationship (or lack thereof) with branch discrepancies and the extent to which those balances can be attributed to and repaid to spebific branches.

We wait with bated breath for the disclosure of this review which as it turns out from emails disclosed in the original FOI was withheld from the POL Board on legal advice!

Finally – I have read this review twice and can see no reason whatsoever why this would not be provided to the POL Board on legal advice? Anybody any ideas?

Bonuses are a double edged sword

There is much discussion going on in the background surrounding the apparent reluctance of POL to repay, at the very least, the amounts that unsuspecting current and former SPMRs repaid to POL because of unexplainable shortfalls in their accounts.

One has first to recall that even prior to the GLO as well as during it, POL’s argument was that these historical shortfalls were ‘time barred’.   In addition neither POL nor the SPMRs were likely to have any supporting documentation to prove one way or another that payments made by SPMRs to POL were in fact related to unexplainable shortfalls.

Now, in addition, following the GLO (and may I remind everybody at the insistence of Alan Bates without whom the HSS would not have happened) POL set up a Historical Shortfall Scheme (HSS) but decided to close it to further applicants providing yet another ‘Time Bar’ to the affected SPMRs.

These payments to POL, if based on Horizon or other system faults within POL, were, for all intents and purposes, cost free.  Therefore practically the entire amount would have to be attributed to the Profit and Loss account of the company.

That increased profit would have contributed to the bonus payments of the senior management who were in receipt of bonuses based on financial performance and, as is laid out quite clearly in POL’s financial report, the bonuses are subject to clawback.

“Executive Directors are subject to malus and clawback clauses in the STIP and LTIP rules, which provide for the reduction or return of all parts of bonus payments in the event of misstatement of the accounts, error or gross misconduct on the part of an Executive Director.”

Neither the bonuses or the underlying unexplained shortfalls (in many cases) have been paid back it seems and there has certainly been calls for Vennells to repay some of her massive entitlement in the past.

It doesn’t stop with Vennells though.  The current management of POL are in receipt of financial performance bonuses which are being enhanced by the non payment of these shortfalls.

As an example if Nick Read was to be awarded £25k for making £1m profit for POL this year, he wouldn’t receive anything if the £1m was offset by repayments to the affected SPMRs.   He is benefitting, albeit indirectly, from NOT allowing repayment of this money and quite rightly he should be ashamed as should the other directors and management entitled to such performance bonuses.

On top of that, as I have pointed out in tweets elsewhere, the decision to close the HSS to further applications can be considered an intention to permanently deprive and that is a criminal act.

However probably more important than anything else is that given these circumstances, POL should not be in control of any re-imbursement scheme.  It needs an independent body to oversee it and it needs to be done now.

For the Avoidance of Doubt ….

Malicious Prosecution and the Settlement Agreement

Throughout this never ending Post Office Scandal, worms keep appearing.   I had thought perhaps we had seen the last of them, but no, another one, just as serious as all the others, has emerged thanks to the Minister Paul Scully.

When Alan Bates and co met with Nick Read, the new CEO of POL, in late 2019 to hammer out the details of the GLO Settlement agreement, they did so in good faith and no doubt expecting it to be reciprocated by Nick and his team.    What they got instead was duplicity and subterfuge that is now, I think, going to come back and hit POL hard in their pockets.

By the very nature of the wording in the settlement agreement we can see that Alan and his team were insistent that those members of the GLO claimants who had been prosecuted by POL would keep their rights to sue POL for Malicious Prosecution after the settlement agreement had been signed.    However such torts for Malicious Prosecution are almost impossible to win if you have been found guilty by the court in the first place.   The reason for this is that the main line of defence, should a guilty verdict be challenged for Malicious Prosecution, is that the prosecution believed the case they put to the court to be true at the time.   As a side note, because I have had a keen interest in the likelihood of Malicious Prosecution claims for some time – even prior to the GLO, I have noted the wording of various statements by POL and Paula Vennells, the previous CEO, over the years and where applicable they have always, in my opinion, kept the door open for the claim that they believed ‘it’ to be true at the time.

Getting to grips with the Great Post Office Scandal is hard when you are a mere bystander but also an occasional recipient of some as yet unrevealed facts.   It seems fate plays a role sometimes and provides me of all people the opportunity to piece together several, seemingly innocuous pieces of information and form a conclusion – often wrong I may add, but in this case I think not.

Let me go back to the group of claimants in the GLO.   Within that group, there was a sub group of former SPMRs who had been prosecuted and found guilty.   At the time of the settlement agreement, the CCRC had yet to report any findings on their cases.   The Horizon trial decision had only just been handed down by Sir Peter Fraser and it would be several months before the CCRC finally referred their cases to the Appeal Court and even longer before most of those had their convictions overturned.

But there was another sub group in the GLO, that at the time of writing this I don’t know how many, that had been prosecuted by POL but POL had failed in court to prove guilt.   This group, at the time of the settlement agreement, had the most chance of success in future Malicious Prosecution because there was still no guarantee that the other prosecuted claimants would have their convictions overturned.

Now we need to understand the position of POL at the time of the settlement agreement.   They had just been whitewashed in court in the GLO and they were aware of the contents of the as yet unpublished Horizon Trial verdict.   Malicious Prosecution torts, can (and will) result in massive punitive damages awards – you only need to look at the recent award in the Rangers FC case in Scotland (https://www.bbc.co.uk/news/uk-scotland-glasgow-west-59711773#:~:text=Administrators%20David%20Whitehouse%20and%20Paul,10.5m%20each%20in%20damages.)

POL would have been anxious to exclude such future claims in the settlement agreement but there could have been no possibility that Alan and his team would have allowed such an exclusion clause in the agreement.    So an acceptable solution was found and inserted into the agreement that future claims for Malicious Prosecution would be allowed by those claimants who were wrongfully prosecuted.  Mmmm …. This is where it gets murky and later on I will quote the exact wording to make it clearer but let’s go back to POL’s mindset at this time.

In NIck Wallis’s book (https://bathpublishing.com/products/the-great-post-office-scandal) on page 388, NIck recounts a meeting that Lucy Allan MP had with a civil servant, Patrick Bourke, 

“according to Ms Allan, Bourke and his colleague were ‘supremely

confident to the point of arrogance, that the CCRC would refer “few, if any”

cases to the Court of Appeal, and if they did the appeals would fail.’”

This ‘mindset’, which I wrote about in a previous blog, remains pervasive in POL, but at the time of the settlement agreement goes a long way to explain why they allowed Alan and Co to have written into the agreement an exclusion clause for future Malicious Prosecution claims:  POL thought it was an acceptable risk because in the way of such claims, stood, in POL’s view, the unlikely scenario that their appeals would be upheld.

(Note: as a deterrent to POL litigious team to pursue me for writing this, I should point out that Bourke has stated that is not what he said – I wonder why Lucy, a highly respected MP, thought that he had?)

However!   The sub group of claimants that had been unsuccessfully prosecuted did not face such a hurdle and POL sought to exclude them from the agreement deliberately but, in my opinion, without indicating to Alan and his team, that was what they intended by the wording they chose to insert into the agreement.

Back to the present and we now know that the CCRC and subsequently the Court of Appeal didn’t agree with POL’s assumption and have now overturned most of the convictions.   Multiple Malicious Prosecution torts are underway and the Government has stepped in to provide hundreds of millions to cover future awards.   Not only that but POL have quite rightly acknowledged the likelihood of these claims being successful by paying out interim compensation to the group of claimants whose appeals were upheld.   

Not though, to the sub group who were unsuccessfully prosecuted.   A member of this group recently wrote to the Minister and asked why they were excluded from interim compensation and he initially replied:

“Members of the Group Litigation Order (GLO) who have had criminal convictions overturned are eligible for compensation as part of the overturned criminal conviction settlements. The Compensation is open to all those who were prosecuted, including those not convicted and will be determined based on individual circumstances. “

Sounds good to me and it clearly includes the sub group of unsuccessfully prosecuted claimants.

I then wrote to Nick Read and the Minister appealing for the sub group to be offered interim compensation (as yet I have received no reply) which seems to have provoked a response from the Minister to the claimant he wrote to above:

“I stated that members of the GLO who have had criminal convictions overturned by the courts are eligible for compensation as part of the overturned criminal conviction settlement process, I then went on to explain that in addition to those members of the GLO, compensation is also open to individuals who were prosecuted but not convicted and that such claims would be determined on individual circumstances. I wanted to clarify my explanation that because of the terms of the settlement, this does not refer to members of the GLO who were prosecuted but not convicted. The position in relation to members of the GLO who were prosecuted but not convicted is different to those who were convicted under the terms of the settlement agreement. The position of people who form part of this group is that they have already fully settled their claims against Post Office Ltd. I recognise your deep frustration at the fact that because the group agreed the settlement with the Post Office that it would be a full and final one.”

What a bizarre statement that yet again shows Paul Scully to be entirely out of his depth and is being provided with advice from civil servants and POL employees that maintain the ridiculous mindset that all of the claimants are a bunch of chancers riding on the back of a technicality.

Well my mindset is pretty clear too.   The legal team that helped draft the wording of the settlement agreement that thought they were pretty smart and now want to rely on that wording to prevent further claims of Malicious Prosecution are nothing more than a ‘bunch of chancers attempting to ride on the back of a technicality’.

Their problem is that they are too blind to see that their attempted deception in the settlement agreement can be shown quite easily for what it was/is.

Let’s look at the wording of the agreement.  When I reread it last week following on from being contacted by one of the sub group and having received a copy of the initial email, I was convinced that Scully was correct and that all Malicious Prosecution claims were excluded from the agreement,  It was only when I got to see his reply (dated yesterday 2nd Feb) that I went back to see how on earth he could interpret it differently.

And there it was – I completely missed it first time round

In the definitions, right at the start of the agreement.  As soon as I saw it I thought the worst.  It would mean that wherever ‘Malicious Prosecution’ was mentioned in the agreement the reader would have to infer this meaning and that it excluded unconvicted claimants.

I read that last night and I haven’t stopped thinking about it since (hence this blog post)

From a language perspective it does not make sense.   Malicious Prosecution is a legal term and it has its own common law definition.   Here in the document it states at the start of the definitions, it states:

This means that depending on where the term Malicious Prosecution appears in the text of the agreement, the reader is invited to interpret the context and decide whether to use the Agreement Definition OR the Legal Definition.   

Let’s take this clause as an example:

Let’s start with the facetious shall we?  ‘For the avoidance of doubt’???  Given the context then there is a great deal of doubt that what POL may have intended by this has not happened.   To me it is very clear that the only way this clause could make sense is that the legal definition is applicable.   ‘Any claimant entitled to bring an individual claim’ expressly includes both groups of prosecuted claimants.

The fact is that the door is open to interpretation and POL, as ever, will choose the interpretation that suits them.    Testament to that fact is that Scully initially interpreted it exactly the way I and others do but now on advice has changed his interpretation!

It is pretty clear if this is ever challenged in court then the bag of worms will be emptied on the floor and they will start mating and producing babies.   POL would have to show that they intended to prevent perfectly legal and justifiable claims against them for Malicious Prosecution and of course they would have to ask the Minister how he could have misinterpreted it so badly!

Finally, one piece of the jigsaw that I do not have, is whether or not Malicious Prosecution was mentioned in the original claims brought by the JFSA in the GLO.   I suspect and hope not and if that is the case then Mr Scully needs to review his decision not to provide the group of unsuccessfully prosecuted Claimants with interim compensation and to exclude them from the ADR which incidentally could be his biggest mistake because the LAST thing POL need right now is a Malicious Prosecution claim going to court.

The Technicality Theory

In a GBNews interview last week Nick Wallis described succinctly the culture in POL that still exists and explains so much of past and recent actions by POL with regard to the Post Office Scandal when he said that POL personnel still believe that the affected SPMRs have used a ‘technicality’ to get away with crimes and branch losses.

Hearing him saying that was a bit of a ‘Eureka’ moment for me.   So obvious if you consider the facts and the actions of POL but I never quite managed to put into words my thoughts on why POL were doing what they were, and still are, doing.

The thing is, I can understand why the diehards in POL still believe in this mantra and I can explain it.   I can explain why they are completely wrong – I’ll try in this blog – and I can see why it still exists in this organisation DESPITE everything that has gone before and the revelations and stories of heartbreak and despair now accurately laid down in Nick’s book for reference and posterity.

Let me take one conundrum that I have struggled to understand as an example of how, the ‘Technicality’ theory now helps me to comprehend what ultimately transpired.

That would be the amount of the settlement agreement for the 555.   I have always accepted that Alan Bates and his team got the best result they could have given the circumstances and financial risk associated with trying to prolong the litigation.  What has always bothered me was why POL thought such a small amount in relation to the total amount of the JFSA claim was ever going to be sufficient to put the matter to bed.    How did they come up with £55m as the final figure?   What algorithm did POL use?   

POL certainly had plenty of cash, and in my opinion still do, to settle the matter more fairly (in January 2019, the year of the settlement, POL declared to UKGI they had £270m in discretionary spend funds available for the GLO).  Why then did they think that limiting the 555 claimants to less than the amounts many of them had actually paid to POL would be a fair result?    I recall going up to a POL lawyer on the morning of the Horizon decision outside the Rolls Building with a smirk on MY face and telling him, “better luck next time”.   It was strange that the smirk on HIS face was bigger than mine and within minutes details of the settlement amount were released by POL.    It is clear that he thought £55m was a good result for POL and that in effect they had won.

The Technicality Theory explains that smirk and the amount.   POL still thought these claimants were ‘jumping on the Horizon bandwagon’  and that more than likely all of them had no real claim against POL.    This despite the two scathing decisions handed down by Justice Fraser in the Horizon GLO.  The decisions may have gone against them by a Judge they thought was biased against them from the start but the relatively low amount of the settlement they took as vindication that POL were right and the claimants wrong.

The theory explains much of POL’s behaviour subsequent to the settlement as well.   One glaring example is the fact that POL decided to oppose the Barrister Paul Marshall’s arguments on ground 2 abuse of process in all but three of the CCRC referrals to the Appeal Court.   I never understood why they fought what I thought and now know for a fact as a lost cause.   The Theory suggests that they still believed in April of this year (and as Nick pointed out last week, still do) that, despite everything that has now been revealed including the infamous Clarke reviews, that POL were justified in pursuing the likes of Seema Misra through the courts, only accepting that they got the method of prosecuting them wrong by basing it on the fact that the computer system, Horizon, was as reliable as they made out.

Explanation

First we need to set the scene and look at this from a POL perspective.   Over the whole period since the rollout of Horizon in 2000, they had become indoctrinated that this system was as reliable and robust as it could be.  If it made a mistake these were always spotted and corrected.   Yes there were a very few individuals who knew otherwise but in general, including internal legal departments, the overwhelming evidence of billions of successful transactions confirmed the mantra that all was well with Horizon and any unexplained losses were down to the users of the system whether by mistakes or crime.

Next we need to remember that the GLO was purely focussed on the Horizon system, something that POL insisted on from the start and still rely on from the perspective of appeals now going through the Appeal court (they are rejecting all appeals whose original conviction did not rely on Horizon evidence).     There are so many other areas in POL, like the financial processing centre at Chesterfield and the Cash Centres (only last year they sent out cash remittances with £10,000 more than they thought they were sending to a branch who could have kept it and POL would have been none the wiser) that could generate mistakes that would result in unexplainable losses to branches.   These areas have never been investigated and repeated requests from defence expert witnesses and Second Sight to do so have always been denied.

Then there is the Horizon trial and the decision handed down by Justice Fraser.   It may seem strange that anybody in POL or Government could take solace from such an overwhelming attack on the integrity of the system and the people who managed it but the Theory suggests they have.   They (the vast majority not the few who understand the real truth) truly believe that the GLO found ALL of the bugs that EVER existed in Horizon and that the effects of those bugs on SPMRs were all fully resolved.   You can hear this from the statements coming from the POL after the GLO decision where they said that Justice Fraser says that the current version of HOL Is reliable and robust.   (that is not what he actually said – he stated that it was more robust than previous versions)  Everybody hears what they want to hear I suppose and when you are indoctrinated into believing an absurdity then you grab what you can to support your belief.

Finally – there is more to it I know but for the sake of a short readable blog post … – POL just cannot get to grips with the fact that they make mistakes too.   All financial losses (and gains of course) that end up in the infamous suspense accounts, they believe are the results of others making mistakes or stealing.   They believe (wrongly of course) that when an SPMR is asked to repay a ‘transaction correction’ that the need for them to do that has been fully investigated and that the ultimate beneficiary of the ‘error’ has been identified as being the SPMR.    

And all of that adds up to the explanation of why the vast majority of POL employees believe that over the years all the hundreds/thousands of SPMRs who have now declared unexplained losses to POL under the Historical Shortfall Scheme and through the GLO are ‘at it’ and riding on the back of an unfair GLO trial that was run by a biased judge.   Arrogance founded on false belief supplemented by the public’s trust in the brand has spread through the organisation and remains there even after all that has now been made public.

The effect of the Theory

Take for instance the case of Seema Misra.   Tried and convicted of theft, her story is well known, but what went on in the background, in POL’s legal team, can be explained by reliance on the Theory.    At the time when she was originally charged with crimes relating to losses at her branch she offered possible explanations such as theft by her assistants but was insistent that she had not stolen anything.   She did not include errors by the computer system because she had no reason to believe it was anything other than what POL said it was, reliable and robust.   It is clear, from internal POL documents that I have seen, that there was never any intention to charge her with theft as POL had no evidence to support that.   It was only when, at the last moment, she read about the possibility of Horizon errors as being a possible explanation and decided to include that in her defence that POL decided to prosecute for theft.   

POL’s legal team then jumped at the chance to prosecute her for theft because they felt she was chasing a technicality and it opened the door for them to prove in court ‘once and for all’ that Horizon could not have been the source of the discrepancies and would close the proverbial door on ‘others seeking to jump on the Horizon bandwagon’.  (the wording in quotes is from an infamous internal memo sent by POL Lawyer Jarnail Singh).

The ‘Horizon Bandwagon’ was seen as a ‘technicality’ and needed to be put to bed.   There was neither then nor now any evidence at all that a Horizon error caused the losses at Seema’s branch, or for that matter, any other branch that fell foul of POL’s prosecution team.    This is where the Theory manifests itself because, at that point in time with the ‘evidence’ available to POL (excluding once again the very few that knew the real truth) it was indeed a technical defence requiring proof to succeed that only POL had access to and which, because it was a mere technicality in their eyes, they withheld.

There are many reasons that could explain the shortfalls in Seema’s branch, Horizon errors only being one of them, but there is only one reason that I can specifically discount and that is theft.    Even her Judge thought so and tried to guide the jury to decide in her favour but the Prosecution had focussed so hard on the, in their eyes, implausible theory that Horizon had been to blame, the Jury lost focus on all the other potential causes and found her guilty. If the truth be told, Seema was sent to prison on a ‘Technicality’.

Fixing the Problem with POL

The Technicality Theory needs to be removed from within the organisation.    It can only be done by education and explanation of how it came to be accepted as a truth.   It has to come from the top down and those who remain believers in it after being told it is not true need to be ‘retired’.

When I first started thinking about writing this blog my first thought was to suggest to Nick Read that he needed to address this problem and communicate to all his staff what the reality of the situation is.   If he took that on board and did what I suggested it would probably be a case of in one ear and out the other.  You hear what you want to hear.   

Perhaps Nick Read could make the reading of NickWallis’ book mandatory for all (with tests afterwards to make sure they do!)   Surely no one reading the stories of so many affected SPMRs can deny that it was not the SPMRs fault for the losses they suffered but POL’s fault for not identifying the true cause of the losses which may or may not have been down to Horizon.   The SPMRs have never said that it was definitely Horizon, just that it could have been.  What they have said, time after time, that they did not benefit from the losses POL said they incurred.    The losses that POL have never properly investigated and to this day do not have the resources to establish the causes of any losses in branch (e.g. the absence of CCTV)

Alan Bates (and lots of others) are still fighting for justice after 20 years.  You don’t do that on a ‘technicality’.

Bourke’s Luck

Bourke’s Luck Potholes

A natural phenomenon in South Africa (I’ve visited them) with holes cut out of rock deep enough to end careers …..

For some Nick Wallis’ book The Great Post Office Scandal (https://bathpublishing.com/products/the-great-post-office-scandal) will be a revelation from start to finish.   For those affected by it and those who have followed the story for some time, it may well have some new revelations as well but it also joins up a lot of dots that were missing for some.

One of these is revealed here:  (I hope I am allowed to copy this if not please let me know)

Lucy Allan’s contribution sent up a flare at Finsbury Dials. Immediately after she made her comments in the Commons, the Post Office contacted her and suggested a meeting to ‘discuss the issues you raised regarding your constituent and the wider outputs of the Group Litigation Order.’ Interested in finding out more, the MP accepted the offer. Two Post Office representatives were dispatched to Portcullis House. One was Patrick Bourke, the Government Affairs and Policy Director who was at the meeting in 2015 when Panorama was not given the correct information about remote access to the Horizon system. Having been called out for its excessive secrecy, institutional paranoia and punitive enforcement of a contract which was so oppressive as to be in-part unlawful, you might think it was time for a little corporate introspection. Instead, according to Ms Allan, Bourke and his colleague were ‘supremely confident to the point of arrogance, that the CCRC would refer “few, if any” cases to the Court of Appeal, and if they did the appeals would fail.’ Ms Allan said the two Post Office men ‘were dismissive of the suggestion that innocent people had been wrongly convicted. In their view, I was taking the side of my constituent who was a convicted criminal, without fully understanding the issues.’ Ms Allan, who had spoken at length with Tracy and read both judgments in detail, felt Bourke and his colleague were being ‘patronising.’ ‘They assumed I would just take their word for it and leave it there. I remember feeling that they were high-handed and not interested in the case of my constituent. Their apparent nonchalance shocked me. There was no humility in the light of the judgment.

This meeting took place after POL had lost the GLO as well as over a hundred million pounds in defending it.   Not even the decision notices of Justice Fraser could alter the mind set of Bourke and his cronies who, to this day, STILL believe that ALL of the claimants are thieves.   That is a notion that has to be instilled into someone AFTER the GLO.   It indicates internal conversations in POL that spread this nonsense but somehow we have to understand why this is so and someone, somewhere, has to alter their misconceived perceptions back to reality.

As I stated yesterday in my blog, Bourke himself seems rather proud of his involvement in the Mediation Scheme in 2014.  

Working directly with the Board, leading a major programme to contain a large scale multiple litigation risk effectively while remaining aligned with organisational values, navigating significant and complex political, media, legal and commercial challenges against backdrop of a full scale re-invention of Europe’s largest retail network.

The wording of it annoys me of course, but as Lucy Allan confirms in her recall of the meeting, he is an arrogant SOB (my interpretation).    He ‘contained’ nothing ‘effectively’.   One only needs to see the Mediation documents to see how far they went to consider the applications – not very far at all.  If the applicants had been convicted then that was it.  No further investigation required and his cohort at the time Angela van den Bogerd  even went as far as stating that as the prime reason Seema Misra’s claim was not considered for mediation.

Bourke’s appointment to POL was directly into the mediation scheme.   His earlier career appears to be made up of various appointments straight out of the school of no knocks, the Civil Service.   His current appointment as Government Affairs and Policy Advisor smacks of an incestuous relationship which will no doubt, as a member of the establishment, lead to further career progression among their ranks.

So in 2020, Bourke thinks the CCRC will come to the conclusion that the appellants will not have their cases referred to the Court of Appeal.   We need to consider why he might have been, and probably still is, of that opinion.

I guess when POL people come to read the conclusions of Justice Fraser they start with a different perspective.  Fraser didn’t find, as a fact, that any of the particular bugs that were discussed during the trial, actually caused any of the losses that the claimants had suffered.   He didn’t need to, he only needed to decide that it was possible that they had and in addition he also decided as a fact now admitted by POL that they could indeed alter branch accounts without SPMRs knowledge.   

I would tend to believe POL that there was no significant usage of the facility to alter branch accounts remotely, and when it was done it was probably done with some care.   I have the feeling that that point alone feeds the POL perspective that the claimants GLO strategy was all a ruse to produce doubt in the mind of the judge that Horizon could be to blame for all the losses that needed to be accounted for.

POL also seem to be saying that all the bugs that ever existed in legacy Horizon were located by the Expert Witnesses during the trial and I bet my bottom dollar that some twat in POL, who considers himself an expert on such matters, is expounding the theory that none of these finite list of bugs could have produced losses in the branches of the claimants of the amounts that were being considered.   They are considering the facts as they see them but don’t realise that there are other facts, not considered by the GLO, that totally disprove their notion that the only way these losses could have accumulated was by dishonesty.

There were and are bugs in Horizon.  Yesterday I came across a new iteration of a bug I first reported to POL nearly 10 years ago.  The day before, at the book launch, I heard of another that had never been discussed.   But the most important thing POL has to get to grips with is that the GLO was limited to looking at ONLY Horizon and none of the satellite systems. 

Just one example, which is closely related to the Payments Receipt Mismatch bug, started to occur less than two years ago.   Remittances from the Cash Centres were, for want of a better term, going nuts.  SPMRs were receiving cash and stamps that they had never ordered but more to the point did not appear on their remittance slips so they were in Profit! Some to the tune of £10k and more.   I heard of many instances of that from a small sample of branches so how many were affected is only known to POL.   What I can’t remember hearing about was REM shortages but surely there were some, otherwise how on earth did the Cash Centres balance?   

Then of course there are the many instances that require human intervention, particularly in Chesterfield, where mistakes are known to happen regularly.   Sending transaction corrections is, as far as I know, not an automated process.  Manual intervention and keyboard mistakes can lead to credits being passed to wrong branches and the opportunity to make mischief and/or crime is therefore presented to Chesterfield staff.

The final thing that POL cannot take on board is that even if there had been no computer errors, no manual mistakes by POL staff, there has always existed the possibility that an accumulation of significant losses could come about purely by counter staff errors over time.   These types of errors either result in POL benefitting or the Customer benefiting financially while the SPMR incurs a debt to POL – and a DEBT is not a THEFT.   The trouble is POL never stopped to find out and to investigate properly.

Just imagine if someone in POL was convinced of all that I have stated above and started trying to convince everyone in POL that this is what probably transpired.   If that person had been successful (just as Alan Bates and others have been trying to do for years) what would the meeting between Lucy Alan and Bourke have been like then?   Would Bourke have been contrite enough to realise that the CCRC was definitely going to return all the convictions to the Court of Appeal? As Wallis points out later in his book, Bourke squirms at Lucy Allen’s recollection and tries to counter by saying she ‘misremembered’ the meeting. One of the them is lying and one of them has a very small set of cajones and if I used a Venn diagram to explain I would only need one circle.

The only way POL is going to change this institutional mindset is from within and they need to introduce people into their management set up, to foster this change and make sure it happens, discarding the fools like Bourke along the way.

The Fall Guy

Three months on from my ‘last’ post and I realise that I need to keep writing to at least clear my head of all the Problems with POL that still keep me awake at night and are the first thing I think about when I awake.

It is time I think to ‘call time’ on Nick Read’s probationary period at Post Office Ltd.   His failure to expedite the full and final compensation payments, his failure to rid POL of employees like Rodric Williams and Patrick Bourke who seem to take pride in their involvement in the scandal as well as his countenance of excessive ‘Business as Usual’ discretionary spend suggests he is now as complicit as all the rest of those involved in the scandal who still maintain that the claimants and successful appellants were as ‘guilty as hell’.

As an aside and an example of the above with regard to the remaining employees, Patrick Bourke, Post Office Ltd Government Affairs and Policy Director, on his Linkedin profile states he was:

Programme Director – Complaint & Mediation Scheme

Dates Employed

Sep 2014 – Jun 2016

Employment Duration

1 yr 10 mos

Working directly with the Board, leading a major programme to contain a large scale multiple litigation risk effectively while remaining aligned with organisational values, navigating significant and complex political, media, legal and commercial challenges against backdrop of a full scale re-invention of Europe’s largest retail network.

The words ‘contain’ and ‘effectively’ spring out as being totally inappropriate.  One really needs to buy and read Nick Wallis’ book, the Great Post Office Scandal (https://bathpublishing.com/products/the-great-post-office-scandal) to fully understand why this is so.

In comparison, while Paula Vennells is quite rightly the subject of great anger and hate as well as a possible target for the police as they investigate the criminality of the scandal, her predecessor in the role as MD of Post Office Ltd, Dave Smith, appears to have removed all reference to his time in this ‘prestigious’ position in his LinkedIn profile.   He is still ‘proud’ though of his time at ParcelForce as MD which preceded his role with POL.

Here is a direct message to Nick Read because I will send him the link and I am sure he will take the time to read this.   Continuing these two persons’ employment in POL is akin to Galileo employing two members of the Flat Earth society who wear clothes made out of Leopard Skins.   Their opinion will never change and in senior positions their opinion can only influence others.   Get rid of them and as you do, weed out the rest who continue to believe that the three Appeal Court Judges, the mainstream press and the vast majority of the general public are wrong and they are right.

Nick the Patsy

I thought and hoped for some time that Nick Read would deliver on the amazing and completely unreported vision of Alan Bates, who managed to include in the settlement agreement, conditions for current and future subpostmasters that would change their relationship with Post Office Ltd for the better and for good.    Well he has had long enough in the position of CEO and he hasn’t delivered. 

Just one example,and probably in my opinion the best, is the continued existence of the National Federation of Subpostmasters (NFSP) which POL fully funds.   To hear Calum Greenhow crying crocodile tears at the WIlliams Inquiry recently only serves to show just how irrelevant the NFSP are as an organisation.   They don’t represent Subpostmasters.  The NFSP are merely a collection of a few well paid individuals whose only concern is themselves and their next pay packet.  They are finished.  They have and serve no purpose other than to embarrass POL and the Government with public support for POL/HMG statements.

While Read continues to finance the NFSP, the CWU on the other hand is knocking on his door seeking representation rights as a Union and is being blocked by him.   What is Read frightened of?  The CWU won’t be attractive to many subpostmasters and even with recognition their membership will remain low but the one major factor they have going for them is that they are fiercely independent.  I have to be honest, even as a founding member of their subpostmaster’s branch, they don’t appeal to me either as an organisation, but in Mark Baker they have a subpostmaster whose dedication to his fellow subpostmasters is extra-ordinary and well documented in Nick Wallis’s book.  Subpostmasters at least deserve the ability to choose to be represented by a body that is recognised by POL and has statutory negotiating rights on their behalf.

The CWU is currently negotiating for worker’s rights for subpostmasters and Read has yet to acknowledge that subpostmasters are indeed Limb B workers even though they are also self employed.    I suspect Read is taking legal advice on the matter from the very same legal teams that said POL could win the GLO and the very same legal teams who see a protracted fight in court as just another money spinning lost cause.   Lawyers can never lose can they.

Nick Read’s contribution to POL when it finally comes to an end will probably be recorded as negligible and he will be described as a Government patsy brought in to take the flak from the fall out of the scandal.   He has time to correct that but I doubt he will as who would put such a fat salary at stake just for the sake of professional pride in his achievements.

Moving on

I started this blog 6 years ago as a former subpostmaster incensed by the devastation that the Network Transformation project was causing the Post Office network and with an eye on the developing Horizon saga. It morphed into a full blown commentary on the Post Office Scandal while the effect of NT on the network came to pass as predicted not just by me but many others.

There is of course much more to come with the scandal but I have no more to contribute. The infamous Known Errors Log could now contain details of all the cover ups and probably criminal behaviour of those past and present in POL which have been revealed so far in trials and by whistleblowers. I am glad that Seema and the others have had their convictions overturned and look forward to hearing that they all receive the compensation they deserve.

Putting the scandal to one side then, POL still need a weather eye kept on what they are up to and if they can succeed in delivering the post scandal promises they have made.

Nick Read is certainly making changes ably supported by his new appointments but one of his key deliverables – resetting the relationship with Subpostmasters – is failing and in my opinion will never be delivered now. It is the definition of the group known as Subpostmasters that he can’t seem to get to grips with. It is a collective that embraces such a diverse lot of small business operators that generalisation is impossible. I assume he is happy in conversation with the more serious entrepreneurs who embrace the Post Office franchise as a profitable opportunity but that is now a small proportion of the network and declining rapidly. The ‘them and us’ factor remains omnipresent between the remainder and POL and the only connection between the remainder and POL is the discredited and totally dysfunctional NSFP. I see in a recent letter to a subpostmaster from Amanda Jones that POL continue to believe that the NFSP are a relevant organisation to the subpostmasters the NFSP claim to represent.

That is neither a long term or short term solution and POL’s intransience to remove financial support to the NFSP and by doing so bring about their much deserved demise hinders the prospect of a new alternative representative organisation that can deliver to SPMRs the real representation that the NFSP used to provide their members.

Out with old and bring in the new

It is truly disappointing to see so many of the names associated with the PO Scandal still in positions of senior management in the organisation. Until they are removed the culture in POL Land will not change as these people have been inbred with the ‘them and us’ doctrine which they still pass on to new recruits. I recall advising Paula Vennells many times not to listen to these culprits who were so blinkered by their belief of being perfect that they could not bring themselves to question problems that were put before them. Nick Read is still surrounded by these very people and making decisions based on their incompetence. I can’t put it more bluntly than that.

There is hope though

I wasn’t going to write anymore about POL but todays announcement that POL have signed a contract with DPD to provide click and collect services is welcomed and ushers in the prospect that POL will now seek to embrace the name above the door as the new business model they so desperately need. NT was going to deliver masses of Government work just as the Government was cutting budgets and forcing the departments that POL relied on for income to seek cheaper alternatives. NT was going to put POs into retail so as my good friend Mr Daniels once observed, the man on the phone in the queue would now tell his wife that he was in Budgens, not the Post Office. A great example of losing the brand which is perhaps the only significant achievement of Paula Vennels during her time in office.

The Post Office. The name is great – it can and should embrace all things postal. When you walk through the door you should be able to select the service you want not the only one available. Competition is good for everybody and the Post Office should provide as many courier services as they can and expand on that perhaps by providing a local hub for these couriers in Urban areas.

So yes, there is hope and it will require a new type of post office that delivers to the public the service they need and not one confused by whether or not it is a convenience store first and a post office second or vice versa.

The Banner Lady

So we waved our hands as we marched along
And the people smiled as we sang our song
And the world was saved as they listened to the band
And the Banner-Man held the banner high

He was ten feet tall and he touched the sky
And I wish that I could be a Banner-Man

(The Bannerman – Blue Mink 1971)

I have often repeated that the difficulty of trying to acknowledge the contribution of so many people that ultimately led to the GLO and the overturning of so many convictions is that it is too easy to miss out some people.  That is why I usually refer to Alan Bates as the key individual while acknowledging the many others’ contribution collectively.

However, I was recently reminded of what many (including me) might have passed off as a somewhat innocuous contribution by one of the leading lights in the campaign for justice to date.   A world class investigative journalist who is currently scribing a book on the scandal (I forget his name but you can buy a pre-release copy here https://bathpublishing.com/products/the-great-post-office-scandal-first ) pointed out the obvious to me and the unbelievable importance of the banners to the media that appeared outside the courts on the various days of reckoning.    Without them, the images of the happy subpostmasters in the photographs would require an explanation in text.    A brief glimpse of a bannerless photo would not convey any message at all to the public.  

So here is a test for you all just to see how important these banners were:

Google ‘subpostmasters’ and click on the images tab

Then you will see that the majority of the images found contain the aforementioned banners.

Right click on any of those images and select ‘search google for image’ 

Only then you will see not only how relevant the banners are but how far their image has spread around the world.  They have been used thousands and thousands of times.   Their importance cannot be denied, particularly if you search for a subpostmaster image not containing the banner.

So for once let me single out one very special person for praise and such an important contribution to the spreading of the story of the scandal in the media – our very own Eleanor Shaikh who designed and paid for both banners herself (apparently even her own husband is unaware that she did this!)

An absolutely inspired and significant contribution that deserves recognition. 

The Therium Conundrum

by Lobert Rudlum

In early February 2018, the JFSA announced that they had obtained funding for their claim against Post Office Ltd from Therium Capital Management a third party litigation funder (https://news.sky.com/story/postmasters-land-funding-for-legal-clash-over-post-office-it-fiasco-11249340)  It was the realisation of a dream for Alan Bates and the JFSA and success for the solicitors Freeths who put together the case for funding and presented it to Therium.  The Group Litigation Order (GLO) had been awarded by the court in March 2017 and in order for it to proceed the JFSA needed financial backing, without it they could not have progressed to where we are today.   I can only assume that Freeths were acting pro bono up to that point with of course the option to recover historical costs once the funding had been obtained.

The first case management hearing on the GLO was in November 2017 so I think I can assume that up until that point there had been little or no disclosure to Freeths.   We cannot know what evidence Freeths used to present their case to Therium but we do know now what evidence they did not have which makes Therium’s decision to invest in the GLO all the more interesting.

They certainly did not have the contents of the Known Errors Log nor details from the PEAK database and of course the contents of the various Clarke Advices, all substantial pieces of supporting evidence that ultimately led to the Court of Appeal recently describing POL’s prosecution of so many Subpostmasters ‘an affront to the Public Conscience’.

A question that may never be answered is, of course, had no substantial additional evidence come to light during the GLO disclosure exercise, would the JFSA have been successful?  Hard to have an opinion on that one but it is almost certain that without the Clarke Advice revelations the abuse of process Category 2 claim would have failed for many of the appellants.

Moving back to funding, it is interesting to note how long Therium say it takes them to come to a decision to invest millions of pounds of their investors money into a litigation project:

What is the process for approving litigation funding and how long does it take?

Once we have the initial information, we will indicate whether we are interested in progressing the case and if so will usually agree commercial terms at an early stage. We then prepare the case for submission to our Investment Committee and prepare the funding documentation. The length of time this takes depends on the complexity of the case, and how well prepared the information is, but cases can be prepared within a few weeks. The case will then be submitted to the Investment Committee who will usually make the decision to proceed at a single meeting and confirmation of funding approval will be provided on the same day.

 While of course the Therium back office team carries out due diligence and presents a summary of their findings to the Investment Committee, no doubt with a recommendation to proceed or not, is it not amazing that a group of men and women sitting on that committee could reach an investment decision for many millions of pounds so quickly and on what, in hindsight, was a substantial lack of supporting evidence?

 I suppose a general question here might be, if all the evidence that eventually was disclosed through the GLO and Appeal Court process had been known at that time, would Freeths have even needed litigation funding?   Would they have even needed a GLO?   For instance had the Clarke Advice been heeded in 2013 and Seema Misra been given reason to believe that POL’s expert witness in her trial had lied and hid evidence of many Horizon errors, her conviction would have been long overturned and in so doing would have forced POL into conceding the JFSA claims almost immediately.  

As an aside here, just to add to the significance of the non disclosure of the Clarke Advice, at the first CMC for the GLO, POL were still arguing that many of the claims were time barred.    Suppressing evidence for 8 years and then having the temerity to suggest that claims were too old is taking the proverbial.

Freeths and Therium do not enter into large scale litigation exercises purely because they want justice for their clients.  They want and need to make money and they certainly don’t want to lose any although of course they do sometimes.   The decision to proceed is a commercial one based on the prospect of success given the supporting evidence to hand at that time.

What of POL then?  They also had a decision to make.    They not only had all the facts and evidence that the Therium Investment Committee had, they had more, much, much more, and of course we know that their decision was to fight the GLO tooth and nail.   That decision would have had to have been made at board level and based on, no doubt, a summary of the case presented to them which would have included a recommendation (or two).  A significant difference to the decision making process though was that while Therium were answerable to external investors, POL were not.  

This is where POL sadly got their decision making process fundamentally wrong.   They approached it from the very same angle as did Freeths and Therium.   First and foremost it was a commercial decision and clearly no consideration for the seeking of justice was given.   Any summary of the claim against them was being provided by the very people that got them into such a mess in the first place.    That summary would no doubt have highlighted the various defences that the legal team were preparing but at some stage legal strategy would have had to be approved and we know that one part of that was to outspend the claimants.

(there is a question that comes to mind here – part of the legal strategy was to exclude Gareth Jenkins as a witness for obvious reasons, and this may or may not have been presented to the board, but surely during the course of the GLO and particularly after Fraser.J had handed down the Horizon judgement, surely at least one board member would have wanted to know why Jenkins wasn’t called?  Or perhaps they already knew the answer?)

So here is the conundrum.   If, hypothetically, POL were financially destitute at the time the GLO action was brought against them and had no financial support from the Government or were even completely privately owned, and they went to Therium for funding to defend the Litigation (I know it doesn’t actually work that way) would the Therium Investment Committee have approved it based on the additional evidence POL had including the Clarke Advice? 

Of course they wouldn’t have.   So why the difference?   Should POL be run by the Therium Investment Committee?   It is not as if POL have stopped making such bad decisions based on legal advice.   As recently as November last year, the POL board discussed the revelations of the Clarke Advice and for some unknown and ungodly reason they approved substantial more funding to defend Abuse of Process Category 2 in the CLEAR CLEAR knowledge that they would lose.   Sir Wyn Williams’ Inquiry needs to answer this conundrum and in doing so we may be in a better place to finally see justice been done which is full compensation paid to all affected and those responsible held to account.

Addendum (to add to my line of questioning)

Sir Wyn: Considering what you know now to be the case and having read Justice Fraser’s decisions, the CCRC Statement of Reasons and the finings of the Court of Appeal, would you still have approved spending so much money on defending the GLO?

Paula: Of course not.

Sir Wyn: Please provide me with a very detailed list of what exactly you know now that you didn’t know then and a VERY detailed explanation of why you did not know that.

If Paula gave evidence ….

Back in 2016 when the prospect of the GLO was becoming closer to reality I started writing a series of emails suggesting what might be asked in court. These were my ‘Line of Questioning’ emails and to be fair the recipients of them marked me down as a bit of a nutter (probably quite rightly) but it is interesting to look back at them now given the prospect that some of the ‘witnesses’ may well appear before the Inquiry to give evidence under oath and given what has been revealed in the intervening 5 years.

This was the first one …

Q: Are you aware of any errors in the Horizon system that have ever led to losses being incurred by Subpostmasters?


A: No computer system is fault free and from time to time errors do occur and we acknowledge these do happen in Horizon occasionally but when these occur we fix them and make sure no SPMR suffers losses as a result.   So no, I am not aware of any errors that have caused losses to SPMRs


Q: But if errors do occur as you say then surely some of these do result in the accounts of the SPMR reflecting a loss payable to POL?


A: Yes but as I said we find these errors when they do occur and provide Transaction corrections to SPMRs to rectify any losses they may have incurred.


Q: Over the years there have been many updates to the Horizon system.  Do you test these thoroughly before you release them to the SPMR network?


A: Yes of course we do – rigorously.


Q: So if you test them rigorously how do you explain the errors that you admit to finding in the system afterwards that result in transaction corrections?


A:  Well as I said no system is perfect and even testing may not throw up each and every possible fault so when we find these errors we fix them.


Q: How do you find these errors once they are released into the network?   Is it as a result of ongoing testing of the system?


A: No – it is usually when a SPMR notices a problem and reports it to us and then we investigate.


Q: So do you agree that from the time the software is provided to the network to the time a SPMR notices the problem, reports it back to POL and the software is updated to fix the problem that the error exists in the software?


A: Yes


Q: So a SPMR comes across a problem with Horizon that has caused him a loss and he reports it to you.   You investigate and accept it is an error on the part of your software.  You fix the problem and reimburse the SPMR for the amount of his loss.  Is that the case?


A: More or less.


Q: What sort of time period are we talking about here from the time the SPMR reports the problem to the time he recovers his money from POL?


A: Well he may not have actually lost any physical money – we can put such query amounts into a suspense account until they are resolved – but the resolution of the problem is usually quite quick.


Q: How quick?  Days, Weeks, Months, Years?


A: Each case is different of course but we try to be as quick as we can.   


Q: Are you aware that some Transaction Corrections can take several months to resolve?


A: Yes I am aware of that but they are resolved eventually and the SPMR does not lose out.


Q: Lets go back to the problem of errors in Horizon.  You say that these come to your notice when SPMRs report them and as you say you resolve these errors to make sure no SPMR loses money as a result.  Is that the case?


A: Yes


Q: That is very interesting.   These errors – when you come across them – they are fixed as you say and then you release a software update so they can’t re-occur is that correct?


A: I think I have already said that – Yes


Q: A software update of Horizon is for every user in the network it not – you don’t just update the software for one particular branch?


A: That is correct


Q: I notice from my research that you don’t inform users when you update the Horizon software.   DO you agree that is the case?


A: No it is not – we inform the users when we make changes to the functionality of the software.


Q: But you don’t inform them of any errors you have corrected.  Is that not true?


A: No we don’t 


Q: Is there a reason why you don’t do that?


A: I don’t know why


Q: Let’s go back to how you come across these errors.   You agreed with me that prior to a SPMR reporting the problem and all the way up to the point where you release a software patch to fix the problem then the error that the SPMR has reported is in the software that all of the users of the Horizon system are using.  Is that the case?


A: Yes


Q: And you agree with me that some errors can cause losses to SPMRs that are later rectified by the provision of transaction corrections.  Is that correct?


A: Yes


Q: How long can it take to program, test presumably and release a patch to fix these problems? Days, Weeks, Months?


A: It can take weeks or in some cases months


Q: And you don’t tell the network when you have fixed these problems do you?


A: No I have said that already


Q: What happens if a SPMR doesn’t notice the result of the software error and a loss to him results?


A: Then they would have to accept the loss – they should know how to identify these problems and report them through the appropriate channels.


Q: So you don’t tell the rest of the network when a SPMR reports a software error that has resulted in a loss to him being generated?


A: Not that I know of


Q: Well here is where I get confused.  You stated at the start of your evidence that you make sure no SPMR suffers losses as a result of these errors yet now you say if they don’t spot them EVEN AFTER you already know about the existence of them they would be responsible for the loss.  So can you enlighten to me as to what exactly you mean’t when you said ‘we make sure no SPMR suffers losses as a result of such errors’?


A: The SPMR contract clearly states they are responsible for all losses that the branch incurs through their own negligence – if one SPMR can clearly identify an error then the rest should be able to do that and if they don’t then it is their liability for any losses incurred.


Q: So ALL SPMRs should be able to identify ALL software errors in Horizon otherwise they are likely to incur losses?


A: Well yes I suppose that is what I am saying


Q: Mmmm – very interesting.   One of the problems with software errors is that they are not debit or credit specific.   Errors can just as easily occur that can cause a SPMR to have a gain not a loss.  Would you agree?


A: Yes that is true.


Q: So if such an error occurred and the SPMR gained money and didn’t identify the error that caused it then he would be perfectly entitled to keep that money for his own account?


A: Yes he would theoretically


Q: There would be no financial incentive for him to report it?


A: No.


Q: And you are totally reliant on SPMRs identifying these errors and reporting them to you?


A: Yes most of the time although we do get reports from the Crown Offices too.


Q: Ah the Crown Offices.  Yes of course they would report these gains caused by errors wouldn’t they?


A: Yes


Q: So are you sitting here and telling me that from the moment a Crown Office reports an error that results in gains to the entire network that they are unlikely to report and as you say are entitled to take the money – to the time it takes to fix, test and release the patch – maybe months in the process – and you don’t inform the network of these patches as you have said – that POL will sit back and allow this to happen?  

 
A: Well probably not – I am sure they would issue transaction corrections to recover these losses.


Q: Very well – so transaction corrections would be issued until such time as the bug was fixed in Horizon?


A: I would assume so.


Q: And of course you don’t tell users about these errors or the patches that fix them so you would in theory just be taking money from their account with no apparent reason?


A: Well the transaction correction would have to explain why


Q: So these transaction corrections would be retrospective would they not?


A: Yes of course we can’t claim back money until after the event can we?


Q: I assume that once you know about the problem you will go back even further to the point it started to occur and issue transaction corrections accordingly?


A: I presume so. I don’t know


Q: So let’s go back to the losses situation.  How far back do you go to check if the error has occurred before in the branch that reported it or even all the other branches in the network?


A: ?????????????