Are Post Office Ltd guilty of criminal behaviour against Subpostmasters?

 

There has been something bugging me since I first took an interest in the Horizon saga.   That is the question – is there one almighty cover up going on or do POL management really believe that there system is as robust and reliable as they say it is?

Assert something as being the truth for long enough, even when you know it not to be, and sooner or later you will come to believe it to be the truth,  and as a result you can state that ‘truth’ with conviction.

On that basis then I can understand, but never condone, POL’s behaviour when it comes to bringing criminal charges against one of their subpostmasters.    When money goes missing it has to be the Subpostmaster’s fault because the computer doesn’t make mistakes.  So positive are they of this then they have no need to investigate whether or not Horizon or their internal systems could be to blame.  Instead they just seek to recover the losses incurred from the poor subpostmaster, often through the courts.

There are two methods POL can adopt to recover the money in question through legal action.   Either a civil action claiming repayment of a debt or a criminal prosecution where if the subpostmaster is convicted of theft from POL then POL are entitled to seek recovery of the amount allegedly stolen from them under the Proceeds of Crime act.

Why would they choose one way over another?  Well basically it depends on the chance of success.   If the subpostmaster has already admitted to False Accounting, POL believe that they are more likely to achieve a criminal conviction of theft against the subpostmaster – such as Seema Misra.   On the other hand if the subpostmaster has not committed the act of False Accounting, then the chances of a criminal conviction are much less and in some cases a civil action is instigated.

Let us leave for a moment the threats and alleged blackmail of suspected miscreants by POL to try and persuade them to accept lesser charges in return for ‘clemency’.

So criminal or civil charges – what is the difference?

Both will be heard in a court of Law and both can be heard in front of a Jury – although I think in a civil action that is the choice of the respondent – might be wrong.

The major difference between the two then is the establishment of guilt.   In a civil case the claimant must prove their case to the judge and/or the jury to show that the balance of probability is that the respondent owes them the money.

In a criminal case the onus on the prosecution is far greater and they must prove beyond reasonable doubt that the defendant is guilty of the crime they are accused of.

In the civil case the ‘worst’ that can happen is that the respondent must pay the money (and possibly costs) at stake.  A successful criminal prosecution can of course lead to many years in jail for the defendant.

Who brings these criminal charges against a subpostmaster?

Well surprise surprise (for some anyway) it is POL.  An ancient law was passed to allow Royal Mail to run their own prosecution service and POL use it to this day in order to seek criminal convictions.   They seem to have forgotten the original intention of the law was to allow Royal Mail to protect the mail – this was in the 19^th Century when politicians, believe it or not, were misusing their right to free mail and selling this right on.   It was never meant to be used against subpostmasters and as far as I can see it is now an outdated law as it was granted to Royal Mail and not to POL directly – something that was not corrected in the Postal Services Act of 2011.

So let us be clear – using this law, POL act outside of the jurisdiction of the Crown Prosecution Service.  They say they follow the CPS advice and rules but they are not bound by them.   As usual for POL they don’t think these things through, and as a result, any individual that works for POL in bringing a criminal prosecution against a subpostmaster or other person can be classed as working in a public office – very important and more of that later.

Why bring these charges?

When a criminal is convicted of an offence the sentence that is laid down by the judge is meant to be both a punishment for the accused and a deterrent for others against committing a similar defence.   The punishment side of the sentence is understandable but the deterrent side is not because POL have never gone out of their way to publicise these trials and sentences amongst the SPMR community so the deterrent factor is completely missing.

No, as I have already said, the real and only reason they do this is to establish a method of recovering the missing amounts.

Show Me the MONEY!!!

So there you are.  A simple SPMR minding your own business and yet all of a sudden you stand accused  in a criminal court of stealing £20k from POL.   The one thing you can say openly and honestly to the court is that you never took £20k from POL.  There were no expensive holidays, no flash cars, no cash under the mattress, nothing.   You didn’t benefit at all from the crime that you were accused of.

Yet if POL win the case, civil or criminal, you will be forced to pay the money back to them.

Not only do you become a criminal and are sent to prison, the ultimate sanction is that you have to pay them back money that you never had in the first place and may never have existed at all (that’s a story for another time – I have probably explained it already in one of my other blog pieces)

POL don’t care about you.  All they want is the money.  Not the truth it seems.  Nor actually getting to the bottom of the problem with Horizon.

As an aside, the incompetence of POL is legendary, but to make it more so, did you know that in the two cases I have the most knowledge about, they spent close to a million pounds in legal costs and recovered the princely sum of £1!!!! ONE POUND.  On top of that in one of the cases the defendant was provided with Legal Aid so the tax payer stumped up another several hundred thousand pounds!

Criminal Activity?

So let me get back to the main point I wanted to make – are POL themselves guilty of criminal offences in bringing these prosecutions?

It is not for me to say but I suspect that whoever is responsible for monitoring organisations that have been empowered by law to bring their own criminal prosecutions may want to study the matter with some concern.

The charge I have in mind is one of Misconduct in Public Office. http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/#a02

Scope of the offence

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The first test is whether or not certain POL employees are Public Office holders.

The CPS document above helps us with that although it is not a definitive answer:

It is extremely difficult to extract from the cases any general identifying features of public officers in a contemporary context. A person may fall within the meaning of a public officer where one or more of the following characteristics applies to a role or function that they exercise with respect to the public at large:

• Judicial or quasi-judicial
•  Regulatory
• Punitive
• Coercive
• Investigative
• Representative (of the public at large)
• Responsibility for public funds

I believe though that the internal POL Prosecution team fits that bill and clearly the same test would apply to those Senior POL employees who control and approve the actions of that team including the CEO and Chairman.

The CPS document lists a whole host of possible scenarios under which a charge of Misconduct in Public Office could be brought so let me lay out the evidence I have and see if you think it fits.

First of all let me point out that the evidence I have has come to light only very recently as far as I am concerned.  It is extracted from three documents, two of which POL would never have thought likely to come into the public domain and to be truthful I didn’t notice the connection at first.  It was only when I read back through one of the documents a week or so ago did I notice this astonishing link.

The three documents are, the Second Sight Report which was ‘leaked’ into the public domain last year, the response by POL to the Second Sight report and the Misra trial transcript.

This is an extract from the response by POL to the Second Sight Report:

Investigations and prosecutions:  We naturally take any allegation of miscarriages of justice extremely seriously. In none of the Post Office’s own work, nor through any of Second Sight’s work, has any information emerged to suggest that a conviction is unsafe. 

If the Post Office decides to prosecute a case, its conduct of the prosecution is scrutinised by defence lawyers and ultimately by the Courts themselves.  The Post Office has to satisfy both stages of the Code for Crown Prosecutors to start a prosecution: the evidential stage requires us to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and the public interest stage which requires us to consider whether a prosecution is in the public interest. 

We are duty bound to communicate with a defendant’s lawyers, and any decision by a defendant regarding their plea is made after he or she has had the opportunity to take private and confidential legal advice and consider, with lawyers, all the available evidence. The evidential requirements for proving the offences of theft or false accounting are a matter of law. 

Post Office as a prosecutor has a continuing duty to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the defendant. 

The Seema Misra Trial took place in October 2010.  In that transcript (http://journals.sas.ac.uk/deeslr/issue/current/showToc)  it was revealed that POL went to extraordinary lengths to prevent the defence having access to what is referred to as the Known Errors Log – a list of errors in Horizon that are to be fixed in the next release.  Tim Parker, the Chairman of POL,  has recently refused me access to this list even though I know of one error that is in it that would lead to substantial losses in branches (another story elsewhere in my blog).  It is the date though that is significant.  October 2010.

This is an extract from the Second Sight report

14.10. In our Interim Report we referred to a software bug in Horizon that had impacted a small number of branches. We have recently discovered two further documents that describe in more detail how Post Office handled this issue. In both of these documents a process is described that involves directly altering branch data.

The fix for the error reported in the document named “Correcting Accounts for “lost” Discrepancies”, created by a senior engineer at Fujitsu in September 2010, stated:

“7. Fixing the Data for each Affected Branch The data can be corrected by adjusting the appropriate Opening Figures and BTS Data that relates to the current TP. This will result in the Discrepancy needing to be processed when rolling over into the next TP. I propose that if we are to do this then we take a copy of the data for one branch and check out the proposed changes on a test system and then rollover the branch on the test system to ensure that the discrepancy is handled correctly before we attempt to correct Live data. Having done one example in this way, we then need to agree a timetable with Post Office Ltd to correct the other branches and ensure that this is communicated with the Branches to ensure that everyone involved is happy.

Note that if it is decided not to correct the data in the branches (i.e. POL would prefer to write off the “lost” discrepancy), then adjustments will be required to the Discrepancy account in POLSAP to align this with the actual level of discrepancy seen at the Branches.”

14.11. This document refers to correcting live data – a procedure that Post Office denied was possible. Of potential significance is the fact that this was not just an internal document made available to a small number of Fujitsu employees, as the copy we were provided with was printed out by the head of Post Office’s Legal Prosecution team in October 2010.

14.12. A further document titled “Receipts / Payments Mismatch issue notes” appears to be a Minute of a joint Post Office / Fujitsu meeting probably held in August 2010. The document refers to the impact of the bug in Horizon as being: Page 31 “Impact • The branch has appeared to have balanced, whereas in fact they could have a loss or a gain • Our accounting systems will be out of sync with what is recorded at the branch • If widely known could cause a loss of confidence in the Horizon System by branches • Potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon Data • It could provide branches ammunition to blame Horizon for future discrepancies”.

The Third Document is the Misra trial transcript.  The opening remarks of the very first day of the trial revolves around disclosure or lack of it by POL.   I leave the reader to make up their own mind whether or not this was evidence of Misconduct in Public Office and to note what POL said in their response to the Second Sight Report Post Office as a prosecutor has a continuing duty to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the defendant – Prosecutor!  Duty! Disclose!  Immediately!

I urge all of you to send a link of this blog to your MPs and your local police inspector (if you live in England or Wales) and ask them to investigate this possible criminal act.