An open letter to Paul Scully MP

Dear Paul

I will shortly publish this on my blog and you are more than welcome to reply – in your own words not the civil servants.

As I listened to your reply to this afternoon’s debate in the House of Commons I thought “here we go again”.  Yet another minister put in charge of Post Office matters repeating the mantra provided to him by the civil service.

It was therefore very unfortunate that these same civil servants provided you with a lie, a downright blatant lie, to provide to those members in the chamber and to be recorded for posterity in Hansard.   I’ll come back to that point later but just as I was formulating what I was going to write in this letter up stepped Kevan Jones and made exactly the points I was going to make so I hope you listened to him and appreciated the advice he gave you.  In order to get to the bottom of this scandal and not become a part of it you MUST be your own man and investigate on your own the truth behind what has transpired.

Paul, the people who provided you with the script to churn out today are deeply deeply involved in the cover up.  They are so arrogant that their ignorance has caught them up.  They are as useless at supervising the goings on at the Post Office as they are at attempting to cover up their past behaviour and as we all know the cover up is a mere phase of a scandal.   Once outed with evidence whistleblowers will come forward for pure arse protection reasons and not for any form of restitution for the subpostmasters affected.   These civil servants think that because they and the Post Office are unaccountable that nobody has been watching them over the years, nobody has been taking notes and nobody has been researching whether or not what they say is the truth.  Well sorry mate several people have and I am one of them and in a minute I will give you a very quick introduction into not only their lies but their very deliberate change in the wording they have given you to pass on to the House of Commons.

As an aside you happened to mention 400 new Post Offices being opened in the last couple of years.  Do you have any idea who, why, where and when this happened?   No I don’t believe you do. You just repeated what was put before you.  Well Paul drop me a line and I will tell you all about it.   It is not something POL should be particularly proud of but I can tell you why they have done it and it is not good news.

I, and some others, see a glimmer of hope in you Paul.  If you are prepared to make a difference then the only thing you have to learn right now is that we are the good guys and the senior civil servants embroiled in this fiasco are the ones who are leading you down the wrong path.  I hope you will sit down with Kevan soon and let him explain why he was shaking his head,as I was, when you repeated verbatim a line that the Minister used in the House of Lords in reply to Lord Arbuthnot.

You were told to say that POL have the same rights as any private individual to bring a criminal prosecution.  That is not true and I have more than enough confidential material to support that assertion.  They have always operated under the legislation that has provided RMG to bring private prosecutions for interference with the mail since the 19th Century.   They have, actually I should say they believe they have, special prosecutory powers, because since 2012 and the separation of RMG and POL the legislation in this regard is open to question.  Happily a question I have put to POL myself and they have answered it truthfully – something the Civil Servants now reading this will be looking for.   I’ll give you a very easy example – what private individual bringing a criminal prosecution has full access to the Central Criminal Database (unaudited access as far as I can gather as well)?

Now if you understand and accept the above ask yourself why have the Civil Servants changed their answer? They have been asked the same before and provided the real truth.  It is clearly to distance themselves from the fall out of the scandal.  They are trying to cover up what they have done in the past and shift the blame on to another scapegoat.  Do some research of your own Paul and you will find the truth.  It is exactly what Paula Vennells tried to do but she asked the wrong people.  If you ask the civil service you will be told what they want you to hear.  Ask me, ask Lord Arbuthnot, ask Justice Fraser for goodness sake and you will hear the real truth and it will confirm that the real problem, the overriding problem is within the department you head.

I wish you well Paul in your new ministerial career.  Make the wrong choice now and it could be a short one.  No I correct that, if you make the wrong choice the civil servants will probably allow you to stay longer in the role if you agree to protect them.  Make the right choice and expose them for what they are and your ministerial career may be shortened somewhat but your reputation will still be intact.

All the best in sorting this out and I would encourage you to watch the Panorama program on Monday.

Cheers,

Tim

The Settlement

The Settlement

We all know that the settlement offered and accepted by the claimants in the recent litigation between them and Post Office Ltd (POL) is morally repugnant.  Why?  Because the sum settled on was not enough to pay the funding and litigation costs of the claimants while leaving enough to settle the individual claims of the 550 or so claimants all of whom I imagine will be out of pocket even though they won their case.   In addition the difference between the actual losses that the SPMRs mistakenly paid back to POL and what they receive indicates that POL will remain beneficiaries of their own (POL’s) mistakes.

A recent Freeths memo sets out why they settled as they did in detail and I have every reason to believe that their decision to do so was correct.  However they did so as a result of mediation and at the end of the day a figure £58m was agreed upon.  It was agreed between the parties, the claimants on one side and POL on the other.  What hasn’t been discussed due to confidentiality agreements is the negotiating tactics of POL in the settlement mediation.

One can only assume they knew what they were doing and that despite the decisions of the court they were in a relatively strong position because they knew of the funding costs and the impact on the ultimate settlement to claimants, having to fund further costs for the litigation through to the end of the GLO would have.

POL would also have had a figure in mind as to how much they could pay out.  Clearly, given the state of their finances, the government (aka the BEIS Civil Servants at the heart of this scandal) would have had to be involved in deciding how much they were prepared to finance.    In mediation that is one of your cards that you aren’t going to let the other side know too readily but on the other hand it can be used as a negotiating tactic.  For instance POL could quite easily have said that £50m is all we can pay out at this stage – we have no idea if the government will fund anymore.

In reply the claimants were limited because any settlement figure agreed upon could NOT take into account the cost of litigation funding.  It is not fair that that is the case but that is the way it is.  Also as I have mentioned in a previous blog, once both parties agree to mediation then any settlement offer turned down can and may be used against the party who turned it down at a later stage when costs and damages are awarded by the court.

There is of course a figure we don’t know and that is, at the time of mediation, the total quantum of the claims plus actual litigation costs (not including the funding).  Would that have been in the region of £58m?  I think perhaps not because Freeths point out that POL were still prepared to put up a fight against individual claimants based on their claims being time barred.  That would have been a risk to the claimants had they lost that argument but on the other hand, if I had had the money to fund the litigation myself, it would have been a risk I would have been prepared not only to take but to call their bluff on.  Media exposure on that particular line of argument would have destroyed POL.   Imagine that – the court finds that POL extracted money from claimants illegally and refuses to pay them back because they didn’t claim in time?  What Government would sanction such behaviour?  That is not to say the Civil Servants wouldn’t. (and in reading this of course HMRC are notorious for doing exactly that)

So I think POL offered a lot less than what they would have likely had to pay out if the litigation had run its course and right now that is the despicable part of it.   They used their financial muscle in mediation to save them many millions of pounds in their own litigation costs and of course the final settlement figure.

A lot of good things have been said about the new CEO at POL, Nick Read, but we have to remember he was involved in the settlement.  He was the ‘figurehead’ that signed it off but to be fair he was probably a complete non-entity in the decision making process.  However he remains responsible for the completely immoral consequences of the amount agreed upon.   The company he is responsible for has benefited financially in the past from money extracted from these poor claimants.   The claimants have not been reimbursed fully while some current and past directors and CEOs bonuses have been paid based in part on these immoral earnings.  Nick is responsible for ensuring that these people are held to account and that where necessary bonus payments are clawed back.  It would be completely reprehensible behaviour on his part if, were he to recover monies from the directors in this way, that the sum received was not distributed in some way to those that suffered at their hands.

Nick has a lot of work ahead of him but until he does something of significance as a result of the decisions of the court then he is as much to blame as his predecessors for the consequences of this scandal.

And Nick the consequences are just starting.  Your predecessors made no attempt to find out for themselves what transpired in the past and I bet you haven’t had the inclination to do so for yourself yet.  Well all is about to be revealed and what a mess it is going to be for you to sort out.   There WILL be further criminal convictions in this scandal and they WILL be from your employees and contractors.   Your failure to report them of the crimes they have clearly committed will be revealed and the consequences of that failure will be noted against your role as a public officer!

For the claimants who will now receive a lot less than they paid POL in the first place it is a grotesque situation and what I am about to say will make it no less so but these are the facts as they stand:

  1. Up until Alan managed to convince Trillium to fund the litigation POL were going admit and pay nothing to the claimants.
  2. If there had been 100 less claimants you would have received individually 20% more but vice versa if there had been 100 more then you would have received significantly less. I doubt very much whether the settlement figure was linked to anything other than what POL was prepared to pay at the time.
  3. It is true that new claimants coming forward will receive a far higher percentage of their claims than you will have done but had they come forward earlier and joined your group you would have got less. That is their good fortune and I doubt very much whether they held off claiming deliberately.  They will thank you from the bottom of their hearts I am sure for what you achieved and what you should be very proud of having achieved.   This doesn’t help off course in mitigating the overwhelming feeling of unfairness of it all and I am truly sorry about that.
  4. Part of the litigation strategy for Freeths was surely (I cannot know this for certain but it appeared to be so) was in the first place to attract as many claimants as possible. POL’s case would have been far stronger if there remained only the original 30 or so.  I believe having so many would also have influenced Trillium in coming forward with the funding.   As it turns out a real Catch 22 situation.
  5. For what it is worth, the media attention on the outcome of the trial and the unfairness of the settlement situation is far far greater than had it been if the settlement figure had been closer to fully covering your costs. The consequence is that the people who were responsible for the scandal will not now get away with it and the damage to the PO Brand that they were always so keen to protect themselves from is far far worse than they could ever have expected.
  6. And finally – please don’t give up hope that there will not yet be a resolution to the unfair settlement. As the scandal deepens to involve the criminality of those concerned there will be increased rationale for further and deeper public exposure.  The only way forward for POL to mitigate both the brand damage and the further exposure is to ensure your settlement is increased to cover the costs of the funding.   How that comes about I don’t know yet but the Government aka the Civil Service are very good at making the rules up as they go along – it will be in their best interests to change them to your satisfaction.

Someone quite notable in this campaign recently chastised me for not having the slightest idea of how it felt to be a claimant which was a rather hurtful remark yet true.  I have no idea how you feel but I know you have been treated unjustly and surely that is all that matters.  As a result you have my support which means little in the greater scheme of things but more importantly you have an ever increasing support of important and senior influential figures.  While that support level continues to grow you have every chance of still righting this unjust settlement so let’s keep getting angry until you get even.

The POL Perspective

Along the way of this long drawn out saga the POL board at various times have had to sit down and make decisions on what to do next.   This is my take on one such day …

Its decision day …

Alan Bates has been a thorn in the side of POL for around 15 years.   He has tried unsuccessfully in the past to raise funding for litigation with ShooSmiths, he has raised the profile of his complaints to the degree that a mediation scheme has been set up, closed down unexpectedly and several convictions have been returned to the CCRC for appraisal.  A forensic accounting team have investigated and found POL wanting but only now with amazing perseverance he has gathered enough claimants and evidence together with Freeths solicitors that he has secured multi-million pound litigation funding from Therium.  Not only that but the Master of the Rolls has just decided to approve the Group Litigation Order.   It is a pivotal day in the lives of senior POL management and their board of directors.   They have to seek legal advice.  They have to make a decision on what to do and they have to seek approval for their actions from their sole shareholder, the Government or rather should we say the Civil Servants in the BEIS Department and that decision must be made today …..

The key word above is ‘they’.  It might well boil down to an executive order but the decision will be made by a collective of senior management officials and board members.  The decision when it comes will bring with it cabinet responsibility and like it or not the members involved in reaching that decision will have to back it 100%.   No dissent is allowable because this is a serious matter concerning many millions of pounds in potential settlement fees and legal costs and any sense of dissent among those responsible for making the decision will be pounced upon by the claimants and the media.

Making a serious decision like this is not going to be an easy process.  There are many factors to take into account, much knowledge needed and every option must be considered right through the best and worst case scenarios.  It’s going to be a long day and we need to act fast.

Of course we knew this moment may arise.  We fought against the Group Litigation Order.  We felt that the claimants did not have a case against us.  Some of them are convicted thieves don’t you know.  Convicted by a jury of their peers in a criminal court.  That must mean something surely.   Most of the rest pleaded guilty to the charge of false accounting.  You don’t plead guilty to something if you didn’t do it.   No, we are right and they are wrong, but what happens if we can’t prove that and they end up winning?

What are our options?  We can certainly fight this all the way and stand up for our company’s reputation and brand image.  Or we could offer a settlement right now and clear the slate for ever.   But we would get the same outcome and probably better one if we take them on in court and win the day, proving once and for all that they are just a bunch of miscreants after a quick buck that they stole from us in the first place.

Let’s just make sure of our facts first though.  What are the claimants claiming?  They say Horizon errors caused losses in their branches and not theft or errors as we have alleged, indeed proven in court.  Do they have a case against us?   Is Horizon reliable?  Has it ever made mistakes that have caused branch losses as they suggest?   Who do we ask about that because we don’t know ourselves what is actually the truth?   Let’s get our brightest most intelligent senior employees in here to tell us what the truth actually is.

So that was interesting.  They say that Horizon never makes mistakes that Fujitsu aren’t aware of and don’t fix straightaway.   Yes there are bugs from time to time but nothing to worry about.  Fujitsu take care of all that for us.  OK but shouldn’t we ask Fujitsu directly?  No we don’t need to, these people have been using Horizon and supporting SPMRs from day one and they would know if there was anything we had to worry about.  Remember there have been a few thieves who have challenged Horizon reliability in court over the years and we won hands down every time.

So let’s get the legal eagles in here to tell us about our options with this.  They are going to make a bundle out of it so they best start earning their crust now.   What happens when we win?  Will we get our legal costs back?  These people have no money remember.  Don’t worry about that they have got Therium Capital backing them and they will pay all our legal costs when they lose.  Are you confident about our case and our defence?   Of course we are.  We have been looking at the case put forward by the claimants and it is all bluff.  They can’t prove that Horizon is unreliable.  It has been running successfully for 15 years or more and handled billions of transactions successfully.  Why would computer errors affect only a small and insignificant number of branches.  If there was a major problem it would have affected far more.   The alternative which is the real truth of the matter is that they stole the money or made mistakes and in terms of their contracts they have to pay up the difference.

OK but why does the Master of the Rolls think they have a strong enough case for Group Litigation?   We have been through their claims and to be perfectly frank they would appear to be strong if they had any substantive evidence to back them up but they don’t.   We are confident we can easily disprove these in court.  Of course you have the option always just to settle the matter before litigation starts.  It would certainly eliminate the small and very unlikely risk that you will lose in court and also limit the amount of legal costs you would incur but I should point out that there is another matter you should consider.   The funding they are receiving has a very high interest rate.   The cost of that funding cannot be recouped through any future settlement.   This will be a very expensive action to bring against you running into many millions of pounds and by the time they or we offer to settle the cost of the litigation funding will be eating into what would be left to distribute among the claimants.   We would point out that in time that cost will eventually exceed any potential settlement figure so in that respect we have them over a barrel in any event.

Is there anything else you should tell us about any possible risks involved?  Well there is always the matter of disclosure.  At this point we don’t know what they will ask for.  There is the small matter of the Known Errors Log that leaked out in the Misra trial and because of its unfortunate name will definitely be something they will ask for but we are fighting that already.  I understand it has several thousand entries in it but none of them are to do with errors that have not been picked up by Fujitsu and fixed and the SPMRs have not been out of pocket.  I wouldn’t worry too much about it if I were you.

So now we have to consider the options.  First we could settle here and now and close the door on this distraction.   We don’t know how much in total they are likely to claim but we have the advantage of having the threat of prolonging litigation and increasing their funding costs past the point of no return.  We could insist on a NDA and declare nothing proven to the media and that Horizon was reliable and robust.    Of course that all depends on where they stand on early settlement.  They could decline.

Or we take them on in court and see where that takes us.  It’s going to be expensive and it’s going to be a prolonged affair with some media attention I would imagine.  However a clean win in court will allow us to hold our heads up high and show the nation that we were right all along and our computer system is extremely reliable and robust which is what we have been saying all along.  In fact it maybe because we have been saying that, that any early settlement even with an NDA would work against us.

So we probably have no better option at present than to continue to defend the action.  We have repeatedly stated that we believe their claims have no merit in our annual report and we should stick by that.  All agreed?

Well then let’s consider the consequences of this.  If we do well in court the matter should be over fairly quickly.  However the major consequence is the possibility that they do better than expected and for whatever reason start winning.  We need to have a strategy in place to deal with this.  Perhaps the legal eagles gave us the best option and that would be if we were ever in a position where we thought we might lose is to do everything we can to bump up the costs of litigation.  You know we could appeal the decisions of the court, we could try and lengthen the trial process by asking for more trials to be included, heavens if need be we could even ask the Judge to recuse himself that always takes up more time and money as a separate hearing would be needed.  That is a good strategy and one that would limit our risk of failing in court as the claimants would be forced into early settlement because of their litigation funding costs.

OK so we have a strategy and a fall back plan.  Is this the right decision?  Is there anything we haven’t thought about?  Well we do seem to be over reliant on just two sources of advice, our own staff and our own legal team.  If the claimants are right after all then the conclusion would be that the people we have relied on for advice are wrong and have been wrong all along.  What should we do about that?

You are right of course.  We need to double check this with independent assessors.  The best way forward would probably be for the chairman to meet with some independent forensic auditors who know a lot about the detail of the claimant’s cases and for the chairman to bring along one of our BEIS QCs to the meeting so he can assess the situation better.  Let’s meet back after that happens and decide on our next steps.  All agreed?

To be continued ….

 

Letter to the Board of Post Office Ltd

From: Tim McCormack <T.J.McCormack@outlook.com>
Sent: 05 April 2019 07:17
To: POLBoard@postoffice.co.uk
Cc: Rodric Williams
Subject: For the immediate attention of the Board

Dear Ladies and Gentlemen of the Board of Post Office Ltd

I think it is my responsibility to bring to your attention a very serious matter that now affects you all.

In the course of the recent recusal application hearing, your QC Lord Grabiner, made mention of the fact that it was the decision of the board to proceed with the recusal application and to appeal some of the decisions of the court with regard to the Common Issues Trial.  This implies that you are all fully conversant with the decision of the court and the evidence that was placed before the court during the trial.  I think it would be safe to assume you are all conversant with the proceedings to date in the Horizon trial as well.  If not I would advise you to make yourselves so.   Lord Grabiner’s statement also implies that you have taken a joint decision based on what has transpired in court so far and therefore you are able and willing to do so.  I consider that an important point for you to consider once you have read further.

I must not try and teach you your responsibilities as a company director but I should point out that it is for each of you individually to investigate the matters I now bring to your attention.

You should know for instance that the transcript of the trial of Seema Misra, a current claimant and whose case is before the CCRC, was made public several years ago.  Extracts from that transcript have been referenced in the current court proceedings and I would urge you to make yourself acquainted with the content of the transcript as well as the date of the trial itself which is relevant.

I must also point out that should you not be aware, as board members of Post Office Ltd you are by definition Public Officers.  If you doubt that or someone tells you otherwise I would suggest you do your own research.  You could start here https://www.cps.gov.uk/legal-guidance/misconductpublicoffice. In any event at least two of you are Public Officers by virtue of other positions held.

As a result of having made your enquiries it is my opinion that as Public Officers and in command of the ongoing trial and responsible for sending previously successful prosecutions to the CCRC for review it is incumbent on you to take immediate action, either individually or collectively, now that you have been made aware of the facts that exist.  I have only knowledge of Seema Misra’s conviction and I can assure you that it is as unsafe as it could possibly be.  For that conviction to linger any longer at your behest at the CCRC without your immediate intervention given what you now know is, I would suggest, likely to be of interest to relevant police departments.  There are of course other considerations for you to ponder which I am sure your legal team will point out but again I would add that in my opinion it is for you to establish for yourselves.  Reliance on others to provide you with the truth is,shall we say, part of the problem in POL as Ms Vennells has indicated.

I might add that I have previously informed POL that Surrey Police have already opened a case file into alleged Misconduct in Public Office with regard to Seema Misra’s conviction and that it will be further investigated once the CCRC has completed its review or you have decided to call the conviction unsafe.   When that happens I cannot imagine that any inaction now on your part will not also be considered by that investigation.  It seems to me that you should do something now in order to mitigate any responsibilities that you might face in the future and of course this advisory email would probably be entered into evidence in any proceedings.

Finally I could also point you in the direction of the recently closed consultation into the law of Misconduct in Public Office by the Law Commission in which you might find interesting details of convictions under this law and the custodial sentences applied for what appear to me to be relatively minor transgressions.  https://www.lawcom.gov.uk/project/misconduct-in-publicoffice/

I have written this email in good faith to advise you of your individual positions in this matter.   These are my own personal opinions and you may take them or leave them as you will.  No threat is intended or implied and no allegation of improper conduct is suggested.  That is entirely for you to consider.    In writing this email there is no personal gain for me associated with it and it is entirely my own work.

Kind regards

Tim McCormack

BEIS Civil Servants – are they hoisting their own petard?

I get the feeling that the Civil Service has chosen the wrong government to have an argument with.  The lifetime career culture within that public body instills an arrogance based on the continuity role they play in advising the government of the day.  I think it is fairly clear now that the Tories are going to be in power for some considerable time and with Boris and Dominic at the helm it seems they are not going to be walked over by the pen pushers.   Hats off to them then for backing Priti Patel in the latest row over her treatment of civil servants.   The power of the civil service has struck back and is using all the available media channels to push their interpretation of the story.   I don’t know what the outcome will be but it seems to me that the reaction of the civil service is best described by Corporal Jones in Dad’s Army – they don’t like it up ‘em Sir.   Nothing riles me more than some buffoon questioning my attitude by asking ‘Do you know who you are talking to?’   My response ‘no sorry, have you had Alzheimer’s long?’  I think Ms Patel’s response may have been a tad stronger.

Which leads me to my latest observation.  Over the past two or three weeks the message from BEIS Civil Service has changed with regard to the Horizon Scandal.  Suddenly they are incorporating a form of words that seeks to distance themselves from the responsibility of this huge mess.  No better example than this that I have ‘borrowed’ from a post on Facebook.  It is from a letter from BEIS to a subpostmaster:

“In response to your question about the costs and risks of the Horizon litigation, the Department for Business, Energy and Industrial Strategy (BEIS) provided oversight of POL and relied on POL management to investigate issues with the Horizon system. Government was assured by POL that the system was robust and that the issues raised by the postmasters were being handled appropriately. There have been attempts in the past to resolve these issues, including an independent investigation in 2013 and a mediation scheme in 2015. All these attempts failed to resolve the issues, leaving the court as the only means of providing the independent view that all sides needed.

In hindsight, facts have come to light through the litigation that have revealed that advice received over that period was flawed. As such, Government will be closely monitoring the progress of the Post Office in delivering on its programme of commitments following the settlement. “

The word ‘Government’ was mentioned twice in that extract, but it should be replaced by, ‘the civil service’.   The ‘Government’  we are accustomed to when discussing the Horizon Scandal has always been the Minister in charge at various points and boy have we had plenty of those over the years.   The Minister’s, whoever that may have been, only responsibility in the matter has been to repeat out loud the briefing paper and often the written answers, supplied to them by the civil servants involved.   The civil servants have been there all the time, career public servants, but the Ministers as Sir Robin Day put it so bluntly are “here today and gone tomorrow” politicians.   I see little point in pursuing these folk to perdition for the small role they may have played in all of this.

As Gil Furniss MP said yesterday in debate:

I fear that the Minister does not get it. He is still parroting exactly what has been said by previous Ministers to me. If this had happened to him, and he had lost everything and had his reputation done, he would want an independent judge-led inquiry. In this Chamber, we have all made it very clear that that must be the outcome.

I get the feeling that this Minister actually does get it but yes the BEIS civil servants that sat behind him were the ones responsible for providing him with the script to recite in parrot fashion.  I actually pay tribute to him for having the sense not to recite verbatim the ‘isn’t POL doing well and how much money the government has invested in it’ spiel that so often prefixes ministerial replies to the house.

The role of the civil servants in delivering the wishes of the government to the people has been satirised often but none was more accurate in my opinion than ‘Yes Minister’ whose Nostradamus like scripts are still a source to describe the inner workings of the Civil Service.  A case in point is delivered here https://www.youtube.com/watch?v=5FRVvjGL2C0

When people start inserting unsolicited comments into what should be standard replies that have been used in similar instances in the past then one has to wonder why they have done this.   The only reason I can come up with is that this is the beginning of the self protection episode of the scandal and laying the foundation for blame shifting when eventually the shit hits the fan in the inevitable public inquiry.  So the timing of the introduction of this new form of words is probably not co-incidental with the Prime Minister’s stated intention of having such an inquiry.  You can be certain that Sir Humphrey would not support such a move but if the PM wants to teach the Civil Service that they are not the omnipotent force they once were then I would urge him to use this inquiry as a proving ground for that premise.

There is evidence that has not yet been revealed that will implicate certain senior individuals in the civil service in this scandal.  It will come out eventually but for the meantime let them hoist their own petard.

The case against the prosecution

 

In today’s debate in Westminster Hall reference was made to a Post Office Ltd senior figure who suggested that the CCRC would not return all or many of the subpostmaster convictions before them and also allegedly suggested that all False Accounting charges would be upheld.

It is a fairly ludicrous idea I personally think but most importantly, if the statement alluded to turns out to be true it brings into question exactly what sort of communication there has been between the CCRC and POL.

There are enough idiots still in jobs at POL so identifying this particular one will probably serve no benefit but to set the matter straight ALL False Accounting charges MUST be returned by the CCRC for the following reasons.

Actually we only need to list the main one.   The charges of False Accounting were brought against SPMRS who decided to declare to POL the amount of value stock they SHOULD have had in their possession according to the SPMR and not POL’s figure which was derived from a faulty computer system.   The stock declarations that the SPMRs made when charged with False Accounting were actually as correct as they could make them.   They equalled the stock on hand plus the value that the Horizon system had taken from their accounts.   Unfortunately for POL there is no space in a Horizon Stock declaration to enter the amount attributable to a computer error.

This however leads to an even bigger problem for POL.  In their mistaken efforts to recover the money that POL had misappropriated from the SPMR accounts they did the following:

  1. They demanded repayment of money
  2. The demanded it with menaces by threatening further prosecution for theft
  3. As we now know that demand was unwarranted and POL should, and in some cases most likely did, have known that.
  4. And the demand was such that the outcome would lead to POL benefitting from the repayment while the SPMR would incur a loss given that the value very likely never existed in the first place.

Which leads me to this article  https://www.inbrief.co.uk/offences/blackmail/

How to prove blackmail

What is blackmail under UK law?

The criminal offence of blackmail under the s 21 of the Theft Act 1968 (TA 1968) is the act of making an unwarranted demand with menaces with a view to making a gain or causing a loss.

What elements need to be established to prove blackmail?

To prove blackmail it must be shown the defendant did the following things:

  • made a demand;
  • with menaces;
  • that the demand was unwarranted; and
  • that the defendant has a view to make a gain for himself or another or have intent to cause a loss to another.

Demand

Does the demand have to be an express demand?

There is no requirement under TA 1968 to show that a demand had been made expressly. If a demand is implied, this may be enough to prove blackmail.

Menaces

For liability for blackmail to arise under TA 1968, the demand must be accompanied by menaces. These can be express or implied.

What is meant by menaces?

Menaces means that there must be some high degree of coercion to force an individual to undertake a particular course of action.

Do menaces have to be threats of physical violence?

Although menaces can include a threat of physical violence, other forms – such as a threat to expose a secret – can constitute blackmail for the purposes of TA 1968.

Does the individual who is making the demand have to be the same individual who will carry out the menaces?

There is no requirement to show that the individual who is making the demand is the same individual who is carrying out the menaces. Neither is it a requirement to show that the person making the demand is in a position to undertake the threatened action.

Unwarranted demand

A demand with menaces will be regarded as unwarranted unless the person making the demand believes both of the following:

  • That they had reasonable grounds for making the demand.
  • That the use of menaces is a proper means of reinforcing the demand.

How can it be shown the defendant believed the above two factors?

The test is subjective so when looking at the two factors above, it is the belief of the defendant which is important. Whether they are actually entitled to the money or property demanded is therefore not relevant.

With a view to make a gain or intent to cause a loss

Section 34 of TA 1968 defines gain and loss as including only gain and loss of money or other property.

What is the maximum prison sentence for blackmail?

For the offence of blackmail under TA 1968, the maximum prison sentence is 14 years.

 

I think if you compare the above points to the points laid out in the article you will begin to see that the prosecution i.e. POL have been treading a very fine line between warranted and unwarranted demands.   As the article points out the sentencing guidelines for blackmail is a custodial sentence of up to 14 years.

This scandal has some way to run.  Criminal charges are on the way certainly.  If there are employees still with POL that firmly believe they are above the law and they have done nothing wrong then … to be honest it wouldn’t really surprise me.  But it is certainly going to surprise some of them when they end up spending a few Xmases away from home.

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 ….