Prove me wrong Nick

I was struck last week by a tweet from the MP Lucy Allan.   She said,

The more I find out about the (subpostmasters) scandal the more disgraceful the behaviour of management has clearly been: arrogant, authoritarian with a casual disregard for justice and Parliament. Government must now act.”

Support for the cause of the current and future claimants from parliamentarians in this sorry saga is always welcome but there is a need for us to further inform them of the facts.   Lucy in her tweet uses the past tense, “has clearly been”.  That is not quite the truth.  The reality is that Post Office management continue with their arrogant, authoritarian attitude and not a casual disregard for justice but a complete, utter, shameful and most likely criminal denial of the facts laid out before them by Justice Fraser in the recent litigation.

Arrogance in some cases can be well founded and based on obvious superiority of one party over another.   It is a personal trait that most find obnoxious and only those who share the same superiority complex can ignore the otherwise distasteful comments that come their way from those who suffer from their  arrogant slurs.   However when arrogance is misplaced and based on a self opined superiority that is not supported by fact then those that display this tendency in real life become dangers to themselves and the company they keep.

I think the majority of us agree that this is now a national scandal.  It exists, it has not been fully dealt with, and while eventually it may well find its way into history, the scandal has not yet reached its zenith.   Scandals come to an end when those responsible are dealt with or scapegoats are found to take the blame but even then premature endings to national scandals are a matter of fact and the whole truth rarely appears on its own in full and final admission of what occurred to cause it and the consequences of it.   This scandal, ladies and gentlemen, has legs and we haven’t really begun to see any fall out from it at all for those now trying to cover it up.

The Post Office has used several forms of words recently in reply to media enquiries about the on-going scandal.  The latest was published this week in the Sunday Post.  They said,

In reaching a comprehensive settlement with the claimants in the litigation, we accepted our past shortcomings and we have sincerely apologised to those affected.  We continue to make extensive changes, reflecting the lessons we have learned from this difficult experience, to build a modern Post Office.  We also continued to directly address past events for postmasters affected.  We are planning a scheme with the aim of addressing historic branch shortfalls for postmasters who were not part of the group litigation and we will announce details in the near future.”

This is an example of completely misplaced arrogance.    They have not accepted their past shortcomings in any acceptable form.  Financially they have, and will continue to, benefit from the money they have received from subpostmasters that have paid up and continue to pay up for discrepancies in their accounts for which they cannot explain.   POL are perfectly aware that as a result of the settlement all the claimants will not receive a great deal of the amount they lost to POL who pocketed the money and stuffed it in their profit and loss accounts.   That money substantially inflated POL’s key performance indicators and as a result bonuses were paid.  No news of these bonuses being repaid.

“We continue to make extensive changes”.  I am appalled by the use of the term ‘we’ in this phrase because ‘we’ refers to the very same personnel that were responsible for this unholy mess.  No news of the large scale sackings of the people responsible so those very same people are being empowered to make the changes that they hadn’t the intelligence to do in the past.  What better example of misplaced arrogance do we need?

“Lessons we have learned”?  They haven’t learned anything.   Who taught you these lessons?  The judiciary, the claimants litigators and probably more than most Alan Bates and several former and current subpostmasters.   Where are they in this and why are they not involved in ‘teaching’ the miscreants how not to do the same all over again.   The lesson as it happens is only chapter one in a long text book on how to run a Post Office.  POL have a lot to learn still and right now, as things stand, I don’t reckon they have anybody in their organisation with either the intelligence or aptitude to take these lessons and do something with them.

“Directly address past events”.  We will see about that.  There is one very simple way to do it and I am not going to hold my breath for POL to do so and that is for them to be proactive and go out and find the people who paid them thousands and who as yet have no knowledge of the existence of this new scheme of theirs.   No doubt this scheme will have a closing date but be warned POL so did PPI and that continued for years after.  The sad thing is that there will be many more claimants who have died by the time they get around to doing the right and proper thing but getting round to it they will.  That will be forced on them by an inquiry whether public or judicial.   The chances of POL doing anything of any worth before that time are few and far between.

So what to do Nick before you too are embroiled in this very arrogant cover up?  First get rid of Angela – I have more than enough evidence to suggest that she was the main culprit in this, perhaps unwittingly, but she has certainly encouraged in your organisation an undeserved belief in her ability and intelligence.  If she is the best you have got then you don’t have much believe me.

Then you need to get subpostmasters involved.  You may have met many already who are no more than able to run a convenience store but among the network are some very smart people who deserve to be at the forefront of the changes you want to make.  Make use of this valuable resource and don’t ignore it.  Use this maxim “they are not them they are us” and you will understand how the new relationship between ALL your servants MUST work.

Employ people who will search for the truth and inconsistencies and not accept the obvious shortcomings of your organisation.  People who will promote all the change you need.   Personally based on your record so far I see no reason to believe you are capable of delivering all this.

Prove me wrong Nick ….

 

 

 

 

Let the David’s win

They say there is no such thing as bad publicity but when you are a financial institution with arguably the most trusted brand on the High St, news of complete failings of trust in the relationship between the very people who represent you in their Post Office branches and the management of the company is not going to make more people buy your products or use your services.   Probably a far more important consequence is the fact that fewer and fewer people will be interested in purchasing a Post Office when the time comes for the incumbent subpostmaster to retire or as the current climate suggests when they just resign because they have had enough of hearing about how their colleagues have suffered at the hands of Post Office Ltd.   Get out now before it happens to us I hear them say.

The new CEO Nick Reid has now had several months to reset this relationship and he is making some progress but he continues to ignore the elephant in the room which is far as I can tell is growing in size rapidly and soon he will be ignoring a blue whale in the room.

When the claimants in the recent Group Litigation Order led by Alan Bates won the multi million pound settlement in December, it seemed that the ‘Davids’ (the subpostmasters) had overcome the ‘Goliath’ (Post Office Ltd) and quite rightly public opinion rejoiced in that fact.   The media went overboard with exposure and both the claimants and Post Office Ltd came out of it with their heads held high.   That was an over reaction because as news leaked that the actual settlement figure was made up of 80% legal costs and that the SPMRs would not receive as much as they had actually lost the outcome of the settlement suddenly was reversed.  The ‘Davids’ had actually lost and the big bad ‘Goliath’ had used its financial muscle to pull the wool over the public’s eyes.   The public doesn’t like that.  The public doesn’t want to hear about ‘Goliaths’ winning and the media are well aware of that fact.

Public interest stories are the meat and blood of populist journalism.  They revel in backing campaigns for justice and this particular story is an eye-wateringly good example.   What should have been put to bed with the settlement in December is now front page news again and with many many catalysts for future headline stories on the way, the media is jumping on board with far more interest than there was during the trial and up to the settlement.  Not only that but new claimants are coming forward every day.  I still can’t believe the co-incidence that I experienced on Sunday when I happened to mention to the newsagent/Subpostmaster the reason I was in his shop was to but the Sunday Times because of a relevant article in it.  That led to him explaining that his son had lost everything in such similar circumstances to the known claimants that it makes me wonder just how many former subpostmasters with identical stories are out there.   Much has been made of the way that Post Office employees told Subpostmasters they were the only ones having problems with the software, now I am beginning to think that I might have been the only one that wasn’t!

I criticise POL all the time.  That is what this blog is all about, highlighting the problems in that  organisation in the hope that they will do something about them.   If they do make changes then, just as I wish for, the network will flourish and there will be no need for me to keep writing about the company’s inadequacies.   Problems need solutions and the problem highlighted in this blog post which suggests public and media opinion is swinging heavily against them because of the unfair settlement in December has the most obvious and simplest remedy.   POL need to accept, yet again, that in reaching a settlement with Freeths which was mostly based on the financial pressure the claimants were under due to the litigation funding resource they used, was not an equitable deal.  The claimants need to be fully compensated and until that happens this bad press is not going to go away.   POL can still claim a victory of sorts in that they managed to prevent the third and fourth trials from taking place when much more would have been revealed.

POL’s only other option to counter this bad publicity is to pay heavily for an advertising  and marketing campaign in order to build up trust again in the brand.   Expenditure on such a campaign though would be a red rag to a bull and has more chance of creating further bad publicity for them than good.

There cannot be a better time for POL and the Government to admit they got it wrong yet again and to ensure that the claimants get what they asked for.   As it stands, without such a move, things are going to get considerably worse for a business that I truly want to flourish for all serving and future subpostmasters.

Let the David’s win …

Changes on the Horizon?

 

Without going into deep research mode and providing verifiable examples, I am certain that since the invention of computers and the reliance on their performance by third parties their efficacy has been subject to challenge in the courts.    There are as many reasons to do this as there are reasons why such challenges often fail.

A software supplier may be challenged by a customer of theirs when the computer system they purchased fails to deliver expected results for instance.   That could be down to missing features, slow performance or even, dare I say it, bugs!   If the customer then provides the system they purchased to a third party that opens up a can of worms with regard to liability and ultimate responsibility.    Software suppliers though know the score from a legal perspective and acknowledge, as nearly everybody in the world does, that whatever they deliver to the customer can never be guaranteed to be 100% perfect.  So with every purchase comes a limitation of liability clause in the sales contract as well as a warranty agreement which protects them from just about any claim possible.

Nevertheless claims still come before a Judge and sometimes a jury to be heard and settled in court.   The litigation teams rely on case law as does the Judge to determine the outcome of the trial and in doing so generates further case law to be used as examples in future trials.  As things stand though there has to be a starting point, a baseline against which claims of negligence in software systems can be measured against.   That starting point in legal case law (and I think statutory law) in the UK appears to be based on a ‘presumption’ that a ‘machine’ that can be seen to be working correctly nearly all of the time is ‘in order’ and it is therefore the duty of the person who believes that not to be the case to prove it.

A presumption in legal terms is one that is widely accepted to be the truth.

The barrister Stephen Mason has been pointing out for years to the legal fraternity that the basis for using such a presumption does not stand up against the vagaries of any software system because of what should be the overriding presumption that all software systems have unknown bugs in them.

Mason provides an excellent summary of this in his journal Electronic Evidence Chapter 6    (https://humanities-digital-library.org/index.php/hdl/catalog/view/electronicevidence/16/93-1)

It therefore would follow that if the efficacy of a computer system was challenged in court it would be for the provider of the system to prove that the system was at all times in order.  That is unquestionably a big ask of any entity, particularly when they would have already declared in their Limitation of Liability and Warranty clauses that they could not be 100% certain that there were no bugs in the system.

In the recent Horizon trial, where Alan Bates & Others were challenging Post Office Ltd’s Horizon computer system’s ‘reliability’ there was, and for that matter remains, a complete lack of warranty and limitation of liability safeguards for the provider (POL) to the claimants (subpostmasters) and users of the system.    So POL relied almost totally from the start on the presumption that because it handled so many transactions correctly every day and that they had various methods in place to detect any errors when they materialised that the Horizon system could be found to be ‘in order’ and in establishing that premise, put the onus on proving it to be false on to the claimants.

POL insisted to the Judge that Horizon was ‘robust’ and ‘reliable’.   Neither of these two words can be described as being definitive because, as the Judge pointed out, one version of Horizon was clearly more robust than another and no one in the court room had the temerity to describe Horizon as being perfect.   However the onus  in the trial was still on the claimants who had to prove their case that there were errors in Horizon, and sufficiently enough and extreme of nature to undermine POL’s case of ‘robustness’.

As hindsight now shows, the claimants did this particularly well through disclosure and I recall nearly collapsing in shock and laughter when I first heard that POL had disclosed to the claimants that the infamous “Known Errors Log” had over 8,000 entries in it.  As it turned out they could only nail down 20 or so that could actually affect a branch accounts but that was more than enough to destroy any notion that the system was in any way shape or form ‘robust’ at that point in time.   This was a generic finding on the entire system.  Enough to take as evidence to the next trial that was due in the GLO which may have been looking at Causation and the likelihood that an error in Horizon could have been responsible for the losses in the claimants branch accounts.

At that trial the claimants would no longer be in a position where they had to prove an error caused the losses it would have been for POL to prove it had not and they could never do that because to prove Horizon did not cause the losses they would have had to prove what did.   To prove what did opens up a whole new can of worms for POL because as I and others have repeatedly said, they would need full CCTV coverage of every counter and every movement of value stock.  Without that they had and have nothing.

I really hope that the decision of Justice Fraser in the Horizon trial becomes standard case law for such future claims and more importantly a very serious warning to all companies that try and pass the financial risk of computer software errors on to the users of the system.   The presumption that computers are robust and reliable most of the time is not the basis on which to prove their efficacy nor to pass the responsibility for proving it to be so to those that seek to challenge it.   All computer systems have bugs and unless a software provider can prove beyond all reasonable doubt that there are no UNKNOWN errors in their systems then the starting point in legal terms must surely be that there are.

The Trial of Seema Misra

 

Tomorrow BBC viewers in the South of England will be reminded of the disgraceful behaviour of Post Office Ltd (POL) in seeking to prosecute the former subpostmistress of West Byfleet Post Office for theft.   Seema will tell the viewers in no uncertain terms, I am sure, of the enduring misery and suffering her conviction and incarceration for theft causes her and her family to this day and into the future.

Seema’s conviction remains with the Criminal Case Review Commission (CCRC) until such time as they decide to return the conviction to the appeal court for consideration.   It has sat with the CCRC since April 2015 and it will be close to 5 years when the decision is finally made to return the conviction as unsafe.   There are of course some reasons for the delay such as the intervening Group Litigation which was only concluded in December and of course staff shortages in these recessionary times.

However there is no doubt in my mind, and the minds of many more able people than I, that the conviction will be overturned and while I have written many times in this blog about why I know this to be so I think perhaps I should summarise the details once more.   The evidence that Seema is not guilty of theft is provided for the most part by Post Office Ltd themselves in the transcript of the proceedings in court when Seema stood trial in Guildford Crown Court on a charge of theft starting on Monday 11th October 2010.

Seema could not explain how the computer system had managed to derive a £87,000 loss at her branch when POL auditors finally visited her office in January 2008.    Far more importantly POL could not explain the losses either and in keeping with their mindset that Horizon could not be to blame they charged Seema with theft and prosecuted her.  It is important to note that the police were not involved and the POL brought the prosecution themselves under what they believed to be the powers invested in them by legislation. (a dubious point that we will leave for now)

Seema was represented by a Mr Hadrill and her costs were to be covered by legal aid.   POL were represented by a Mr Tatford who would be paid for by POL.   In the run up to the trial and purely by chance Seema had come across a reference to a bug in Horizon that had been referred to in a civil trial featuring Lee Castleton who had also been victim of unexplainable losses at his post office.   The bug has become known as the Calendar Square bug which was the name of the Post Office where it was first noticed.   This was the first time Seema had even considered the possibility of a bug in the system causing the losses she had encountered and it is an extremely important point in its own right.  Why would a subpostmistress consider the possibility of a bug being the problem if POL consistently tells her that there are no bugs in the system and if there was one it would be extraordinary if it only affected her branch.  As POL managers still to this day say “no one else in the network is experiencing these problems so it must be your fault”.

As a result of adding to her defence the possibility of computer error causing the losses, expert witnesses were appointed.  The defence chose Professor Charles MacLachlan and POL chose a Fujitsu employee named Gareth Jenkins.   As expert witnesses do, Charles and Gareth worked together in order to prepare their reports to the court.  In fact such was the scrutiny of Prof MacLachlan, he and Jenkins were still working on looking at possible problems in Horizon up to and including the first day of the trial.   And that is another extremely important point that I will come back to in a minute.

Just to add some background into my research into this subject.   In November 2015 the barrister Stephen Mason obtained permission from the trial judge to publish the transcript of the trial.  https://journals.sas.ac.uk/deeslr/article/view/2217

I happened to have enough time and interest to read the whole thing through, not once but several times and I also took the opportunity to concatenate all the daily transcripts into one single word document some 1500 pages long.  I have worked through it in detail and annotated my findings and obvious discrepancies in the evidence, ultimately providing it to the CCRC as evidence that Seema was truly the victim of a miscarriage of justice.  That was over 4 years ago and since then even more evidence has come to light, mainly through the disclosure evidence produced at the GLO trials as well as Justice Fraser’s findings of fact in those trials.

It would take an extremely long blog post to delve into all the inadequacies of the prosecution’s case against Seema over the length of the trial but luckily all I have to do to convince all and sundry of Seema’s innocence, the likely criminal behaviour of POL’s expert witness and the dreadful behaviour of Mr Tatford representing POL is to look in detail at the very first day of the trial.  In fact only the first part of the first day before the jury was even sworn in.

Before the jury was introduced to the court Mr Hadrill and Mr Tatford discussed some issues with the Judge.  The first was the subject of disclosure. I have no details of what further disclosure Prof MacLachlan required but I assume from later testimony it was more details of the now infamous Known Errors Log.   This had been requested by the defence in May but was turned down by a judge in a separate hearing because it would take an additional 45 hours of expert witness work and they don’t come cheap.   Why people still have to go to prison because the judicial system cannot justify the expense to find out the true facts is a subject for another day.   What is crucial though is that this was not the Crown prosecuting Seema it was POL themselves and surely they would have wanted to get to the bottom of it?  No, and it wasn’t just Seema who POL tried to prevent having access to crucial evidence but even at the GLO trial POL were claiming that the Known Errors Log was irrelevant and they still prevent access to this day to the log for subpostmasters who ask.

Mr Tatford: Regrettably the Crown’s view is that the defence have never in this case provided focused disclosure requests. They have asked for everything. Initially this was everything in relation to the West Byfleet post office, two and a half years of transactions. It was explained repeatedly that providing that material was enormously expensive and offers were made to the defence to suggest a period of data they would like to look at because of course they have the advantage of the defendant’s instructions, because the defendant is saying there was a computer problem – easy to say it, but a computer problem should be visible, at least the symptoms of it to the user of the computer, and this defendant was using the Horizon computer system at her post office every single day, probably perhaps hundreds of times a day.

What an extraordinary statement – fundamentally flawed in so many ways – and no better example than when in the Horizon trial it was exposed that not only were errors in the branch accounts caused by Horizon  bugs but not even Fujitsu were aware of them until many years later when they were eventually discovered.   Only a few minutes in to the trial and if Sir Peter Fraser had been in the chair it would have been stopped then.

Mr Tatford: It is for the Crown to prove the case, to prove that the defendant stole the money. If the jury think the deficiency might be down to a computer error, Calendar Square or something else, then that would probably help them to move a great way towards acquitting the defendant

Thanks to Mr Tatford here for illuminating the obvious and not so obvious.  First of all he refers to ‘the money’ showing his lack of knowledge of as to the effects of a computer bug that generates a shortfall in the accounts of a branch.   Horizon does not have hands and legs to steal physical cash from the safe.  A computer error in this case merely performs an erroneous transaction that has the effect of recording the wrong amount in the accounts.  No ‘money’ physically changes hands.

More importantly though, he provides us with glowing testimony that even he would be obliged to consider the innocence of the defendant should the defence be able to prove that computer errors could be to blame.  Mr Tatford surely would be the first now to support the notion that Seema was wrongly convicted after he has read Justice Fraser’s conclusions in the Horizon Trial.

Mr Hadrill: It transpires that what Professor McLachlan has seen this lunchtime on the computer, the laptop of Mr Jenkins is a third formatted programme. It is called an NT event log. Its existence was never known before today. It clearly had not been declared before today,

Prior to this statement by Mr Hadrill he had been explaining to the court the lack of disclosure by POL and Fujitsu.  POL had argued about the cost of providing any additional disclosure but here was Mr Jenkins providing brand new evidence on the very first day of the trial.  It is extremely significant for many reasons.   First the contents of the log eventually persuaded Prof MacLachlan later in the trial to concede that it was most likely that the Calendar Square bug had not affected Seema’s accounts and I will come back to that later.  Far more importantly was the fact that this was Gareth Jenkins providing evidence to the court that had not been requested again I will tie that into a later conclusion about Mr Jenkin’s behaviour in court.

It is also worth weighing up the fact that Jenkins provided this additional disclosure against what Mr Telford had to say about why POL didn’t provide disclosure above.

Back to the court discussing the possibility of the Calendar Square error affecting West Byfleet:

Mr Telford: paragraph 6 details the problem was dealt with in March 2006. So the problem is completely irrelevant from March 2006 onwards.

 

On 11th October 2010, in sworn testimony before Guildford Crown Court both POL and Fujitsu claimed that the Receipts and Payments mismatch bug that had occurred in Calendar Square Post Office had been ‘fixed’ in March 2006.

Justice Fraser in his findings of fact in the latest Horizon Trial stated it was still apparent in 2010:

  1. Callendar Square/Falkirk bug. This is a bug present in Legacy Horizon. It is agreed that this bug occurred between the years of 2000 and 2006, although there is an issue about when it stopped. In my judgment, the period when the effects of this occurred are 2000 to 2010

In my personal opinion this type of error was still occurring even in Horizon Online up until 2016 and the possibility that something similar still exists is most likely.

Again Mr Tatford is extremely generous in providing Seema with all the evidence she requires to submit to the appeal court:

Mr Tatford: One wonders why if that was the cause of the problem, why everything was not made better quite frankly when the problem was solved in March 2006, but it would appear the hole in the accounts appeared to grow, not become smaller.

It is for the Crown to prove that she stole the money and if the jury think that part of the deficiency may be down to this then that may persuade them that the rest of the deficiency may also have had an innocent reason and that would lead them to acquitting the defendant, but that line of reasoning, the evidential basis for it, can be put before the jury.

 

The judge now sums up his findings of these discussions and in doing so says this:

A vast quantity of material has been disclosed and considered and the defence have ample material I am quite satisfied to test the integrity of the Horizon system.

Sadly he was mistaken and I am also sure he would freely admit to have been duped by POL and Fujitsu into believing what he said to be factual.

And there we have it ladies and gentleman.  We have only now arrived at the point in the trial where the jury is about to be sworn in and the actual trial is set to begin but we already have enough evidence from the discussion between the Judge and the counsel for the defence and prosecution to cast more than great doubt on the safety of Seema’s ultimate conviction, we have ,as will be seen, more than sufficient evidence to prosecute individuals from POL and Fujitsu for attempting to pervert the course of justice.

So what about Mr Gareth Jenkins.  He has been working as an expert witness on this case for many months before the trial started.  He clearly knew it was going to start on Monday 11th October 2010 and as an expert witness he would have been briefed by the prosecution as to his responsibilities and duties according to CPS guidelines for expert witnesses.  He made a conscious decision to provide the court with additional evidence on the day the trial began that had not previously been requested by the defence expert witness. It was crucial evidence that led to a major part of the defence’s case being destroyed in court.

It must surely therefore be an inescapable conclusion that Mr Gareth Jenkins deliberately withheld knowledge of a Horizon Error from the court that would have, by POL’s own written admission, upheld Seema’s defence of a Horizon error being responsible for the losses incurred at her branch.  I refer of course to the infamous Memo of a meeting held between POL and Fujitsu with regard to a Receipt Payments Mismatch of exactly the same generic problem that has existed in Horizon since its exception and it is of my opinion still has the potential to exist in the system today.   Gareth Jenkins was present at the meeting and the minutes specifically state that there could be an impact on ongoing legal cases where branches are disputing the integrity of Horizon.   The minutes also reveal two action points that Gareth Jenkins must action by 8th October just TWO DAYS before the Misra trial is due to start.  Just to make matters worse Fujitsu, under the command of Gareth Jenkins would be rolling out the fix to the first branch on the 11th October while Seema’s trial was in progress.

https://www.scribd.com/document/392954195/Bates-v-Post-Office-Receipts-Payments-Mismatch-Issue-Memo

Had Gareth Jenkins elected to inform the court of this error and the effect it had on branch accounts there can be no doubt it would have had a significant effect on the outcome of the trial as Mr Tatford repeatedly and so helpfully commented on.   Mr Jenkins will soon be regretting that decision and he will have ample time do so.

The detail of this trial was relatively secret.  Post Office Ltd and Gareth Jenkins must have been safe in the knowledge that nobody would concern them enough to have the transcript published nor could they ever have imagined that the minutes of that meeting would have been made public.    The prospect of a ‘Horizon’ trial was not even a remote possibility in 2010.   The behaviour of these people is reprehensible, the failure of POL management not to pursue criminal charges against them is bordering on criminal activity itself and the absolute travesty of justice that has delayed Seema’s conviction being overturned earlier than this is intolerable.

Thanks as ever to Nick Wallis at http://www.postofficetrial.com for the reporting of the trial among many other helpful things including obtaining the transcript and the copy of the infamous memo.  To Stephen Mason as well who had the remarkable foresight to obtain the transcript of Seema’s trial without which her conviction might have gone unchallenged and Mr Jenkins and POL escape without censure.

Probation Period Over?

The word on the street is that Post Office Ltd (POL) will fund the £58 million settlement with the Justice for Subpostmasters Alliance (JFSA) out of available funds.   Another example of the unbelievable arrogance of the POL board who seem to revel in the fact that they are unaccountable to anyone.  Unaccountable perhaps but not closed to external scrutiny and I do hope they realise in time that I at least will examine in detail their annual accounts when they are published to see where they sourced these funds.   It may come as a surprise to the POL accountants that they are specifically prohibited from dipping their fingers in the BEIS working capital loan which may be used ONLY to finance the cash flow in the network under EU State Aid rules.  If they did attempt to use it then it would not be the first time they have overstepped the mark in this way and as we are beginning to understand, being caught doesn’t seem to prevent POL from trying again.  We’ll see.

Unaccountability is a recurring theme with POL.  The situation would be entirely different if they were answerable to shareholders as a public company.   What public company would attempt to persuade shareholders that the very people who mismanaged the company into a situation where a small businessman who never trusted the computer system that POL forced upon him to produce his Post Office branch accounts took POL to court and ended up costing them over £80m in settlement and legal costs, proposed to carry on with Business as Usual with no sackings or resignations.

POL might rebut this observation by referring to Paula Vennells’ departure but she left the building in January last year, long before the Horizon trial started and well before such remarkable and extraordinary strategic decisions were made like the decision to apply for the recusal of the trial judge without even informing their own QC who was appearing on their behalf in court at the time.

A board member has now left but it looks more like rats leaving the sinking ship rather than being forced out.   Perhaps more will follow but it is self evident surely that those who remain in charge of POL believe that the JFSA litigation is behind them and they can move on safe in the knowledge that there is no one out there ready, willing and in a suitable position to hold them to account for POL’s incredible lack of corporate common sense.

Are they truly blind to the forthcoming referrals from CCRC to the appeal court of many if not all of the convictions against subpostmasters brought by POL.  The consequences of these appeal court hearings, the publicity generated and the new facts that will emerge will make the JFSA litigation look like a walk in the park, notwithstanding the criminal proceedings to be brought against POL and Fujitsu employees.   All that will probably act as a catalyst for more whistleblowing and I for one am already sitting on a huge piece of incriminating evidence that is good enough to suggest further acts of perjury may have been committed in the Horizon trial..

What is more, without the heads rolling of those responsible for this mess, it appears to me to be far more certain there is a huge cover up in progress.   Well good luck to them if that is what they are trying to do because they were stupid enough to be caught and tried in court already and if they are that stupid then clearly their attempts at a cover up will be just as weak as their defence was in the Horizon trial.

If POL were a public company reliant on shareholders to back their Share Price on the open market I would certainly not be investing in them and would be warning others to do the same.   There is nothing at all to suggest that anyone in the upper echelons of POL management have got an iota of commercial ability and if they only took a real interest in what the people who have been criticising them over the years and in doing so have been proved correct time after time will they have any chance at all of maintaining a viable network.

The new CEO, Nick Reid, arrived last September.   He has had 4 months to find out what has been going on and in those 4 months he has had the opportunity to hear at firsthand what the Judiciary think of the past mismanagement of the company in very scathing terms.   His probation period is now up as far as I am concerned.  His inaction in removing employees who have been implicitly involved in the totally misplaced decision to contest the JFSA claims in court is now testament to either his complete lack of managerial ability or his involvement in a massive cover up.  I truly do not understand how someone taking over as CEO of a company that has just lost its entire profits and more for the last two years in defending a court case that should never have taken place can consider asking the people responsible for the mess to help him get to know the company he is taking over.

Nick, this has just started.  The trials and tribulations in the Rolls Building before Justice Fraser was a mere prelude to the real action.  You can wait and see what happens or I (or plenty others) could tell you what IS going to happen.   Clear as mud to you perhaps, clear as daylight to me.

Imagine

3rd February 2015 BEIS Select Committee Inquiry into Horizon IT System

Adrian Bailey Chair of the BEIS Select Committee: Paula, as you are the senior person here, the buck stops with you. I find it quite astonishing that you do not seem to know anything about a process that is so politically and socially sensitive.

Paula Vennells: I know a huge amount about this. I know the really important things about it

Before the meeting started, in evidence revealed in the trial, Paula Vennells asked her staff to ensure her that it was not possible for subpostmaster accounts to be altered without their knowledge.  The answer she was given was that it was not possible.  Imagine the consequences if Fujitsu had told her the truth?

Would there still have been a trial?   The answer to that appears to be yes because just before the beginning of the first trial, POL came clean and admitted that yes it was possible after all and that they had misled the court and the claimants.   How did they find that out?  Well Fujitsu finally owned up after a whistleblower, Mr Rolls, stepped forward.   At that time, in their admission, POL stated that the ‘tool’ had only been used once and that the subpostmaster involved had been made aware of it.  Yet further down the line in the Horizon trial, it appeared to be the case that no-one really knew how many times it had been used and who had done so.  Extracting the truth from POL and Fujitsu seems to be an extremely arduous process and as a result who is to say that the whole truth has been extracted yet?

But really?  Would the litigation really have progressed if Paula had discovered the truth for herself?  If she had sat before the Select Committee and stated publicly that within that huge amount of really important stuff she knew about the system was knowledge that the Horizon system was neither robust or reliable?  If she knew then what she knows now to be the case it surely is absolutely certain that the case would not have reached court.

And that would have led to the claimants receiving a far greater proportion of their claims than they have now received because of the cost they incurred pursuing POL through the courts.  It is not just unfair it is disgraceful behaviour by a Government owned entity.

It could be argued that POL didn’t know about all of this because Fujitsu didn’t tell them.  Perhaps POL could sue Fujitsu but that would be difficult because there is a contract between POL and Fujitsu and I am certain that within it there will be a warranty clause and a limitation of liability clause.  The only way POL could overcome that would be pursue a ‘duty of care’ implied term in the contract which, paradoxically, their legal teams have now some experience of in litigation.

If there ever was an indicator that Fujitsu probably knew all about the potential problems they might face by providing POL with unreliable software then it is the paragraphs in the various witness statements from Fujitsu employees to several different courts that caught the eye of Justice Fraser in the Horizon Trial.  He notes:

  1. Mr Dunks gave every indication, in the first part of his cross-examination, of being helpful and frank, and explained the process of data extraction and answered questions put to him openly. However, this encouraging start came to an end when he was asked about two curiously worded paragraphs in his statement. These stated as follows:

 “8. There is no reason to believe that the information in this statement is inaccurate because of the improper use of the system. To the best of my knowledge and belief at all material times the system was operating properly, or if not, any respect in which it was not operating properly, or was out of operation was not such as to effect the information held within it.

  1. Any records to which I refer in my statement form part of the records relating to the business of Fujitsu Services Limited. These were compiled during the ordinary course of business from information supplied by persons who have, or may reasonably be supposed to have, personal knowledge of the matter dealt with in the information supplied, but are unlikely to have any recollection of the information or cannot be traced. As part of my duties, I have access to these records.”
  2. Before I come to his evidence about this, it is obvious that the wording of paragraph 8 is almost that of a legal disclaimer (or a legally worded claim of accuracy, to be more precise), rather than a witness’ actual evidence. It would be very curious for a witness of fact to decide to put such a formally (and rather clumsily) worded paragraph in their witness statement.

I am pretty sure that neither Mr Dunks nor Mr Jenkins will escape the due process of the law regarding their witness statements to courts during their employment at Fujitsu but perhaps, just perhaps, one of them will be inclined to step forward voluntarily to tell the real truth about what transpired at Bracknell.

What remains to be seen is what action Fujitsu take with regard to their role in this.  I think the media has a part to play here.   They successfully extracted, eventually, some sort of meagre apology from Vennells for her role in all of this, but nothing as yet from Fujitsu – an international Computer Company with a pretty big reputation to protect – whose annual profits appear to be close to £1 Billion.

Perhaps it is about time Fujitsu put their hands in their very deep pockets and coughed up the money the claimants lost in funding the litigation that eventually proved Fujitsu were at fault here.

Exploring the Financial Risk of Bates & Others v Post Office Ltd

 

It took Alan and Susan Bates 15 years or so to secure funding for what has turned out to be one of the most expensive civil litigation hearings in the last decade.   It was a long road that eventually led to Therium, a company specialising in funding large law suits.   Funding was provided on a no win no fee basis and they entered into a contract with Freeths knowing only the facts as they were at that time pre disclosure and that they were up against a government entity with seemingly bottomless pockets.

Therium knew it was going to have to outlay many millions of pounds before they would have any possibility of recovering some or all of their expenditure.  They fund this expense from what they refer to as ‘a diverse investor base’ and those secondary investors need a return on their investment as do Therium.   Therium of course will not win all the cases they fund so a good proportion on the margin they provide the funds at needs to go to cover those losses.   You certainly wouldn’t expect them to receive only a small percentage on a successful outcome and they certainly cannot be blamed for the massive reduction in what the claimants will now eventually receive out of the £58m.

When you apply to Therium for funding they will of course go through your case with a fine toothcomb and consider the chance of success, ultimately deciding whether or not to invest after the case is presented to their Investment Committee.

I do not know how many people sit on this committee nor their backgrounds, but it is very telling indeed that these clearly commercially and legally astute people made a wise choice in backing Alan when presented with the facts that Alan and Freeths had at that time.   In comparison, Post Office Ltd (POL) had not only the facts Alan had but also access to all the substantive evidence that was later produced to Freeths in disclosure and then in court.  The same evidence that led Justice Fraser to openly deride POL in all the decisions he published.

As some stage in the proceedings leading up to the eventual trial, POL would also have had to sit down at Board Level and even further up the food chain within the Civil Service (UKGI, BEIS etc) and decide upon the financial and reputational risk of the case brought against them and weigh that against the legal arguments they could pursue in their defence.   These meetings resulted in a commitment to spend millions of pounds on a defence they must have thought had a reasonable chance of success and from a financial point of view a reasonable return on the investment, perhaps not just in terms of tangible financial returns but in protecting the reputation of the Post Office network.

We cannot but admire the Therium investment committee for approving the funding of the claimants.  They got it right based on the limited evidence put before them.   The same cannot be said for all those that sat in on the various meetings that were held by POL that led to the approval of the expenditure and eventual loss of £58m from the public purse plus of course their own legal costs.

I doubt very much if the makeup of the Therium Investment committee has changed and I don’t doubt that they will have held their own small celebration when the settlement was reached (note that Therium are prevented from having any say in whether or not to accept settlements offered).  At this point, in comparison, I should be able to recount that those that were responsible in POL, the civil service and the government for deciding that they could win this case have now left the building because they have displayed such a remarkable lack of ability in legal, commercial and above all ethical, terms but I cannot.  They all remain in their place with the exception of one who may have left the building but  has not only been honoured by the Queen but also received appointments to two senior government positions.  They remain to oversee the financial risks of a £1 billion company and in doing so, having taken on board the findings of the court, have yet to make any substantive changes to the way they operate; the same way they operated that brought about this litigation in the first place.

A long long time ago I started writing about the unaccountable face of Post Office Ltd and the fact that despite being in control of hundreds of millions of pounds of public money they remain unanswerable for their actions to anyone.   Surely this now is the time for the government to put an end to this and only a full scale Judicial Inquiry will make sure it never happens again.