From: Tim McCormack <T.J.McCormack@outlook.com>
Sent: 05 April 2019 07:17
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/misconduct–public–office. 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-public–office/
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.
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.
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:
- They demanded repayment of money
- The demanded it with menaces by threatening further prosecution for theft
- As we now know that demand was unwarranted and POL should, and in some cases most likely did, have known that.
- 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.
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.
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.
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.
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 ….
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 …
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.
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:
- 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.
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.