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.