Time for the conspiracy theories

 

I have been dreading this moment.  I have stayed away from conspiracy theories because they are usually so easy to discredit.   The amount of people needed to be involved and hold their silence is the first thing that one would look at in order to shoot down the conspirators.   Then there is the type of people of involved.  In this case they hold very senior positions in their respective spheres.  It really would be bordering on the incredulous if a conspiracy theory turns out to be correct.   But hey! Nothing – I repeat – Nothing in Post Office Land surprises me anymore so I will say it one more time (won’t be the last) everything they say and do is “beyond belief” which is the definition of incredulous.

This morning sees the revelation courtesy of Nick Wallis and his blog at www.postofficetrial.com (stick a penny in the tip jar please) that Lord Justice Coulson has turned down the appeal by Post Office Ltd to allow them to appeal the decision by Justice Fraser not to recuse himself from the current Post Office Group Litigation trials.    It marks the end of one chapter of this long drawn out claim by the JFSA claimants, that they were mistreated by Post Office Ltd.

Now we need to look back at what has transpired, the sequence of events, the decision making process and the people involved to try and come up with a plausible explanation as to why POL asked the judge to recuse himself and even more relevant why they decided to appeal his decision not to.

On Thursday 21st March on the last day of factual evidence to be presented to the court and during the lunch break, Justice Fraser found himself reading a request from POL QC Lord Grabiner to recuse himself.    The application was put together by a Mr Parsons, a partner in the law firm Womble Dickinson.  (https://www.postofficetrial.com/2019/03/horizon-trial-application-to-recuse.html)

My immediate impression when I read this application was that it had been put together in ten minutes.  Both Patrick Green QC, Justice Fraser himself and now Lord Justice Coulson tend to agree, as all have said the application lacked any substance at all.  Justice Fraser went so far as to instruct Womble Dickinson to go away and put some meat on the bones and present it back to the court for deliberation.

POINT ONE Two Judges and one QC immediately thought that the initial application was scandalously short of substance so from a conspiracy theorist point of view the question has to be asked, at that moment in time did not POL legal team think so too?  It would be a couple of sandwiches short of a picnic for the legal profession if they did not surely.

POINT TWO How long did it take to prepare the application?  This is a really serious point.  If,as Lord Grabiner went on to explain in the actual recusal hearing, that the matter had been under consideration for some time, was decided by a board meeting of POL and a further delay was necessitated by the need to take advice from a mysterious very senior legal figure, then why oh why did the application lack so much substance?  Surely that substance would have had to be revealed to the mystery legal man (MLM) for him to provide advice on it?

POINT THREE Why was no notice given to Justice Fraser immediately the decision was made to ask for a recusal?  So short was the notice that even POL’s QC in court that day knew nothing of it and just to confirm point one he also agreed the application lacked substance.  How on earth could their own QC not know the application HAD been prepared?   Lord Justice Coulson remarked specifically on this point (no notice given to Justice Fraser) in his decision saying that it was “at best discourteous; at worst, it betrayed a singular lack of openness on the part of POL and their advisors”

POINT FOUR POL’s legal team consist of multiple QCs from different chambers.   They all must be instructed to carry out the requests of their clients.   The legal teams can advise their clients of the chances of success and the cost but at the end of the day the decision to make the recusal application and the decision to appeal Justice Fraser’s decision not to recuse himself had to be taken by POL.

POINT FIVE the appeal has been decided.  The trial continues with the new timetable but the same judge and the same witnesses and evidence.  The only thing the recusal application and appeal has done is to delay the trial by a few weeks.  (at a cost to POL and the taxpayer of some £1m) Was that the only objective?

So the overriding question must be WHY did POL decide to ask for the recusal?  The overriding answer must be: to win the case, but a recusal application is only one part of that strategy.   It wasn’t going to stop the trial being completed under another judge, the same evidence would be produced and the same questions asked.  There is nothing to suggest that a new judge would come to a different decision than the one that Justice Fraser will arrive at.

Lord Justice Coulson goes so far as to suggest that there must be more to the timing and manner of the recusal request than meets the eye given the nature of what followed after they had made it.  My interpretation of Lord Justice Coulson’s comments in this regard are that the recusal request was a spur of the moment tactical decision made to delay the trial as it clearly never had any chance of success.

I have previously considered that POL have been purposefully using delaying tactics in order to push the costs up for the claimants as ultimately these costs will come out of any compensation that may be awarded to them.   Given that even POL must realise now that they are on a hiding to nothing in court then the claimant’s funders must also be extremely confident in the outcome and will not be willing to back off now given their expenditure to date.

So fellow conspirators where does that leave us?  What rationale was behind this recusal fiasco?  Will we ever find out?  What theories could provide a solution to this conundrum?

  1. a) has POL’s expert witness realised what is going on and is about to change his testimony?
  2. b) was it important enough to have the trial stopped until after the 31st March which is the end of POL’s financial year?
  3. c) Are POL actually making these decisions or is the mysterious senior legal figure a politician or the legal representative of the civil service as the sole shareholder?
  4. d) did Mr Parsons make a mistake and didn’t deliver the recusal application in time to prevent the witness testimony on the last day of the trial which was pretty damning against POL?

I originally thought either a) or d) made sense but neither explains the appeal which was legally unsound and POL should have been advised of this by their legal team.

Thoughts from fellow conspiracy theorists welcome as I think the more minds work on this the better.

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The evidence of Stephen Parker – Fujitsu Head of Post Office Application Support

Thursday 11th April – Horizon Trial Day 12

The transcript for this trial as well as expert commentary on proceedings is available at http://www.postofficetrial.com.  Without the efforts of journalist Nick Wallis we would not have access to this information and he relies on money to survive unlike POL who seem to rely on Subpostmasters to survive.  So it would be very kind of you all to put a little something in his paypal jar in order that he can continue to provide us with the coverage we need.

Stephen Parker is now the head of Fujitsu Post Office Application Support.  As a witness called by Post Office Ltd hi job was to counter the allegations made by Richard Roll who was a witness for the claimants and worked at Fujitsu in the early 2000s when Mr Parker was his line manager.  Mr Parker was clearly impressed with Mr Roll’s work.  So much so that he went so far as to give him a personal reference despite the fact that this was against Fujitsu HR policy at the time.

The first part of the cross examination was to do with the several changes Mr Parker had made to his witness statement.  For some unknown reason a very diligent chap in the Fujitsu Support Centre, a Mr Simpkins, allegedly took it upon himself to look further into the PEAK log to see if he could find more instances of transactions being injected into the counter records of branches.  Well he found a few more and on the 20th of March, the day before Mr Parker was due to give evidence, Wombles informed the court of this and Mr Parker’s witness statement was duly updated.

A technical point here was revealed in that the additional search used to find the extra transactions included the following terms; “RiposteMessageFile, RiposteImport and RiposteMessage”.  Very specific terms which it appears were not originally used by this highly experienced team to locate the additional injected transactions.

The RiposteImport command in particular was quite an amazing omission from the original search criteria because it is one of the few methods available for injecting transactions into a counter.  Why it would be left out of the original search criteria is astonishing and worthy of further interpretation.

Mr Parker’s witness statement also revealed that over a period of 4 years, the Post Office Service Support Centre at Fujitsu received over 27,000 calls which would equate to more than 20 per day.    Quite a figure for a robust computer system.

Systemic Errors?

In an article for the Digital Evidence and Electronic Signature Law Review (http://journals.sas.ac.uk/deeslr) (http://journals.sas.ac.uk/deeslr/article/download/2303/2256) I wrote:

“The Post Office consistently claims that the system is used by thousands of operators each day to process millions of transactions and must therefore be considered to ‘be in order’ as the law puts it. This, they suggest, proves there are no ‘systemic’ bugs in the system.”

The Post Office has misused the term ‘systemic’ repeatedly over the years so it came as a surprising revelation in court when Mr Parker stated:

there were only rare circumstances where a coding issue had an estate wide impact and, in those instances, Mr Roll would have been involved in executing avoidance actions to mitigate impact to the estate

They may be rare in Mr Parker’s opinion but his evidence is that they do exist and occur.  There is however more to read into this statement.  These system wide errors were by definition in the system for some time before they were noticed and fixed.  There is no evidence to suggest – and as a former subbpostmaster I can attest to this – that the ‘estate’, the network of subpostmasters, were ever informed that these errors existed before they were fixed.

Mr Green goes on to question Mr Parker about how he set about trying to decide 15 years later how many actual software errors Mr Roll worked on while he was at Fujitsu.  Without access to the referenced spreadsheet it is impossible to comment but this line of questioning did however reveal something else.


Q   And at the bottom we can see that there is an agreement
at least with Mike Crowshaw’s explanation of the
imbalances in periods 10 and 11 which were due to
a stock transfer of  £12,000 which was not settled
correctly to the presence of a corrupt DLL file on the
PC involved.
A   That’s what the notes say, indeed.

In my opinion, and that of others I have spoken to, there appears to be an underlying and recurring theme of major errors occurring in the system when it comes to stock transfers.   These could be between stock units within the branch (the ‘Falkirk’ error) or between the cash centre and the branch (the ‘Dalmellington’ error –although that was slightly different in that it was between two branches).  However in both cases, transfers and remittances, the values involved can be significantly high and involve, initially, a one way transaction out until it is accepted at the receiving end.  The Falkirk error was investigated in court in the trial of Seema Misra (see transcript published at http://journals.sas.ac.uk/deeslr/article/view/2217) where Mr Gareth Jenkins of Fujitsu attempted to prove to the court that the same error had not occurred at Seema’s branch at West Byfleet by examining NT Logs for possible hardware failures.   In the example quoted above they are also looking at a hardware error as a possible cause of the problem, but in this case a corrupt DLL file (dynamic link library which contains many different modules of code that can be used by the calling program).   Without going into detail there is not a cat in hell’s chance of Fujitsu, or anyone else for that matter, being able to go back in their history files and determining for certain whether or not a corrupt DLL file was to blame or not.   I think this is one of the more revealing bits of evidence to date in the trial.

Fujitsu Support Centre is in a bit of a mess

With so few people dealing with so many problems you can perhaps begin to understand (if the consequences had not been so serious) why the administration of the department became a bit lax shall we say.  Perhaps the trial was not a good time to rely on the internal records of their performance to have a go at Richard Roll’s testimony.

Q   Okay.  He says:
“This Peak is the regression of the Peak PC0234448”;
yes?
A   Indeed he does, yes.
Q   And underneath he has put:
“Category 41 — product error diagnosed”?
A   He does indeed, yes.
Q   The reason he does that is because there has been
a regression to a problem that had previously happened
as a result of a subsequent software release not having
caught a fix?
A   That’s the note that the developer has made, yes.
Q   And if we look on page {F/1326/5} please, towards the
bottom of the first blue box, penultimate paragraph:
“Risks (of releasing and of not releasing proposed
fix):  Without this fix, there will be possibilities of
system errors at counter and while doing reversal
transaction”; yes?
A   That’s what it says indeed.

This is not a one off.  This is a service support centre making a balls up of a fix for an error they had already spotted and thought they had fixed.   It happens all the time in the industry and an excellent example comes from a relatively unknown little software company that provided the underlying operating system (NT) to the Horizon network called Microsoft.  In 2004 they withdrew support for the NT operating system but before they did they sent out one final update to correct errors that had been reported to them.   Within 6 months of what was supposed to be the final release of NT, Microsoft were forced to send out another ‘fix’ to solve the problems that the previous upgrade had caused.   Since 2004 to 2018 when the last counter using NT in the Post Office network was upgraded, worldwide users of NT had noted many more additional bugs including some very interesting ones with relation to the evidence that has been produced in court to date. (https://nt4ref.zcm.com.au/bugs.htm)

Whose fault is it?

Fujitsu supply the software but that is not the only component of the overall computer system known as Horizon.  It needs a computer to run on, a keyboard to enter data and a printer to produce the output as well as many other bits and pieces.  If software is not the problem though, Fujitsu wash their hands of it and somebody else has to sort it out even if the problems have created an inconvenient loss to the subpostmaster.  Mr Parker helps Mr Green with this conundrum ….

The system is still playing up in that the screen
is hanging in the middle of transactions — PM did
transaction … but left office for 1 hour — when he
came back the monitor had 141 first-class stamps on
screen totalling £38.07″, see that?
A   Yes.  I see that.
Q   You would accept that that is not how the system is
supposed to work.  Is that fair?
A   That’s fair.

Phantom Transactions

Let me assume that the lay reader understands the concept of a phantom transaction e.g. a faulty keyboard ‘accidentally’ enters a transaction into the computer overnight while the subpostmaster is not present.  Not an everyday occurrence mind you and not one that you would be expecting to look out for if you hadn’t been warned about it (which we never were).  In practice though this would give rise to a discrepancy in the branch accounts – might not be serious but a discrepancy all the same.  The real problem though is identifying the source of the error because if the phantom transaction occurred after close of business the effect would only be noticeable the following evening when stock was declared again and who would think of looking back to the previous days transactions?

Screen Calibration Problems

The Horizon user interface is predominantly touch screen.   When the calibration goes out it is possible to think you are pressing one icon when in fact the system thinks you are pressing another.

It takes someone who has read the transcripts of this trial to understand the significance of this statement by Mr Parker:

Q   And the PM says calibration is fine, not out of
alignment, because that was an issue that sometimes
happened, wasn’t it?
A   There were screen calibration issues, yes.

The expert witness in Seema’s trial made a point about potential problems with calibration of the screen but POL (the prosecution in Seema’s trial) attacked this premise and appeared to persuade the jury that this was not an issue to be concerned with.  This is certainly evidence that the CCRC should take note of.

Duplicate Pouches

In late 2015 I and others became aware of a software error in Horizon that generated substantial losses to the affected subpostmistress because the system had generated duplicate Remittance Pouch Receipts.  Some 5 years earlier this occurred …

Can we just briefly, please, look at {F/589/1}?  You
will see this is non-critical and closed with Solicited
Known Error.  Do you see that?
A   I do.
Q   That is a problem of duplicated pouches, as you see
underneath the two tram lines.
A   Yes.
Q   And the amount that was renned in twice was £25,000.
A   That’s what the notes says, yes.
Q   It’s pretty serious for the SubPostmaster?
A   I would think so, yes.
Q   But category priority is C, non-critical?
A   That’s correct.
Q   And at {F/589/3} if you look down the penultimate blue
box, 5 March 2010, 12.33:
“POL have been informed of the error. Hopefully
they’ll issue a TC to correct loss at the branch. The
underlying problem caused by using previous button
during or just after scanning pouch barcodes, is still
under investigation”.
It is closed as Solicited Known Error?

Apart from the fact that this error seems identical to the earlier Falkirk error and the later Dalmellington issue it raises the question of errors known to be in the system yet the network were never informed about them and what to look for.  Again, from the Misra trial transcript, POL as the prosecution, made the point that if her losses had been caused by an error in Horizon then she WOULD HAVE NOTICED IT.  This was a key point made to the jury and would certainly have had an influence on their final decision which was to find Seema guilty and ultimately to send her to prison.

Conclusion

The major part of this whole cross examination of Mr Parker was to cast doubts on his interpretation of the categorisation of errors and in doing so support Mr Roll’s evidence as being reliable.   As I point out above some major flaws in Horizon were revealed and these may or may not be commented on later by the expert witnesses so I will leave further analysis on these for another day.

However they all lead to the very safe conclusion in my opinion that the Horizon computer system was and remains unreliable and I use the word ‘unreliable’ deliberately because it lies at the heart this trial and how the law as it stands interprets the reliability of a computer system.  Whatever decision the judge reaches in this trial will set an example for years to come in the legal profession because it is such a debatable point.

The barrister Stephen Mason has spent some time investigating this issue – which the judges and lawyers have ignored – and a most notable reference on the reliability of computers in litigation can be found here and is well worth reading – in particular Chapter Six of Electronic Evidence, now it its fourth edition and available as a free download from http://humanities-digital-library.org/index.php/hdl/catalog/view/electronicevidence/16/93-1

The evidence so far in this trial also points undeniably to the fact that Seema Misra’s conviction is completely unsafe and should be returned to the Appeal Court by the CCRC without delay.

 

 

 

 

Round and Round The Money Tree

So somebody (name withheld but you know who you are Jon Banks) on Twitter has asked my thoughts on why Post Office Ltd (POL) continue to pursue their defence of the legal action brought against them by the Justice for Subpostmaster Alliance (JFSA)

It is extremely difficult to answer that one given that their decision to do so must be reviewed fairly regularly – or so you would have thought given the revelations in court and now the judicial decisions mounting up against them.

As was revealed by Lord Grabiner in the recusal application, this is a board level decision the members of whom are now well and truly enmeshed in the outcome of these proceedings.  The first factor to take into account, in no particular order, then is the damage to the board member’s personal reputation which is at stake.  To lose now, from this point onwards, will be particularly damaging to them because this is no ordinary company whose reputation and very existence (not my words, their own) is at stake, this is THE Post Office.  The darling of the High St, the bastion of the community and the butt of all jokes to do with queues.   If this goes against the board’s decision to proceed then the media will have a frenzy and the blame will be laid firmly at the board’s door.   They have repeatedly stated in their annual accounts that the claim has no merit so it will be particularly interesting to hear what they have to say in this year’s accounts given that they have now lost the first two major decisions in the trial and will bear the majority of the costs of the claimants for these.

The second factor to consider is from the opening statement of the first trial where the Post Office legal team decided to inform the court that an unsatisfactory result will cause an existential risk to the company.  Leaving aside the fact that that statement is of absolutely no relevance to the ultimate decision of the court other than a fairly obvious attempt to bias the judge in their favour (which he rightly ignored) it is a significant factor in deciding whether or not to continue defending the claim.   POL however, have not expanded on the rationale behind that statement nor whether all or just part of the business is at risk.   Certainly the way they do business in the future, in particular the relationship between POL and their subpostmasters, must now change as a result of the first decision.  The fact that they haven’t yet started on this process may be down to a possible appeal but it remains to be seen whether the practicalities of implementing these changes form part of the existential risk i.e. the business model they currently use is not capable of supporting the new regime required.

Next the big question about the source of funding which has to be a consideration when continuing this defence.   The longer the trial goes on the costs mount up as does, in my opinion, the likelihood of them losing and paying out a multi million pound settlement.   Justice should never be able to be bought but POL appear to be playing the bottomless pit card against the claimants forcing them to consider first whether the prospect of ultimate victory is worth the cost of the action.  In playing this card though they need now to explain where this money is likely to come from.

POL appear to be playing with fire here, because the final quantum of the claims has yet to be determined.  I am sure they will have a figure in mind but with 500 claimants and at least one we know of from the transcript of the first trial claiming close to £1 million (richly deserved in my opinion and probably should be double) then we are talking 9 figures at least.  Now the government may own POL but because of state aid rules (Brexit does not come into it) they are restricted not only in how much support they can give but also what that financial support can be spent on.  Already we have seen that POL have taken liberties with grant funding from UKGI and have had to repay £3m they used to fund the litigation to date.  I will be keeping an eye out in their accounts to see where they are sourcing the funds and I can warn them now that using the BEIS Working Capital Loan is a complete no no – I got them the last time they misused that loan and I will do it again if they try the same thing.   So with government funding all but ruled out and a 9 figure sum in all likelihood required then their only source is debt.  That debt would be at least subtly guaranteed by the government if not fully guaranteed and it would not be hard to raise in the capital markets, however that adds to the strain on cashflow and if expected profits fail to materialise then they sink in to a debt spiral.

Right from the very inception of Horizon back in 2000 POL and the NFSP have always gone to great lengths to protect the image of the brand by refusing to acknowledge that the Horizon system was not as reliable as made out.   Evidence is everywhere supporting that fact and in hindsight they must now see that as a very naive mistake to have made because it potentially is leading to the brand disappearing altogether.   Protecting the image of the post office as a trustworthy brand is still probably the most important factor in their determination to see this legal process through to the bitter end. It is well and truly misplaced judgement on their part fuelled by indoctrination of the theme over the years – protect the brand at all costs.

Next there is the distinct possibility that POL will actually win some of the decisions to come with respect to Breach of Contract and Causation.    While these will, if they win any, be in the minority, it will reduce the overall claim and legal costs.  Hard to tell at the moment as I have no knowledge of all the claims but it is another factor the board must consider when taking the decision to fight on or give up.

Finally though there comes the time when defeat will be certain in their eyes.  Taking the claim all the way to the bitter end and through the appeal process is not only delaying the inevitable it is losing their last card to play with and that is negotiated settlement.  That will bring with it a substantial discount and when you are talking of hundreds of millions substantial could mean close to a hundred million.  That is also a factor for the government to keep an eye on as they must approve spending by POL over a certain amount and a settlement figure will certainly need their approval.  The government could even insist on settlement as more and more details emerge from the trial with associated publicity and the likelihood of embrassment looming.  Never forget the additional bonus of settlement is non disclosure either by contract or by the mere fact the legal process ends early.

(I keep forgetting to add the links to the journalists who continue to cover this fiasco)

Nick Wallis – without whose Tweeting we would be deaf – http://www.postofficetrial – drop a pound or two in his paypal jar please to keep him going.

Tony Collins – whose post this morning rings bells with the above – https://ukcampaign4change.com/2019/04/11/how-is-post-office-funding-increasing-costs-of-horizon-it-trial-mp-asks-questions/

Karl Flinders at Computer Weekly – also published this morning – https://www.computerweekly.com/news/2240089230/Bankruptcy-prosecution-and-disrupted-livelihoods-Postmasters-tell-their-story

Thoughts on the recusal hearing

I cannot, by any stretch of my rather vivid imagination, envisage the dilemma faced by Justice Fraser over whether or not he should recuse himself.  Whatever he decides he is clearly establishing a precedent for future Group Litigation Order trials where the claim is spread over several trials.  The most relevant point is that in this case there are to be 4 trials set out at the beginning of the process and agreed by both parties in a particular sequence so that the decisions from the preceding trials can be taken into account when determining the next.  That by definition requires a biased approach.

Major discussion points arising from yesterday include the fact that the decision to proceed with the recusal application was taken at board level by POL as well as the fact that POL will not ask for the Common Issues trial to be rerun but will ask for the Horizon trial to be started afresh under a new judge if one is appointed.

A common phrase running through the recusal application hearing yesterday was:

“Whether the fair-minded and informed observer, having considered the facts, would conclude ….”

I am merely an observer, I think I am fair minded but POL would certainly not agree with that.  Informed?  Well I have kept up to date with what has been presented in court thanks to the efforts of the redoubtable journalist Nick Wallis but I am no legal eagle and I think the adjective ‘informed’ has more to do with legal prowess than information gathering.

However, apply the same phrase to the board members of POL and consider the action they have taken.  Let us assume they are fair minded people, and that they can readily rely on being well informed by one of the most expensive QCs in the country, Lord Grabiner who surely attended the Board meeting to advise them of the facts that they should consider.

The POL board have come to a completely different conclusion than I have.

  1. Judge Fraser has not made any decision on the Horizon trial.
  2. The decision of the first trial stands (subject to appeal)
  3. Therefore there has been no opportunity for any alleged Bias to have any effect on what has transpired in court so far.
  4. Overwhelming evidence has been produced in the Horizon trial to indicate to ANY fair minded individual that Horizon has errors in it and that they have caused subpostmaster losses in the past.
  5. In any rerun of the trial the same evidence will be produced. A recusal has no effect.
  6. As a former subpostmaster, a campaigner for the claimants and someone who has seen at first hand the effect of Horizon errors and the way Post Office Ltd deal with them as well as apparently one of the very few people who have studied the transcript of the Misra trial in depth, I can say with some conviction that POL are going to lose not only the Horizon trial but the Breach and Causation trial that will follow. There can be NO DOUBT WHATSOEVER about the outcome REGARDLESS OF WHICH JUDGE HEARS THE TRIALS.  Bias can have no effect and it would be particulary unjust and unusual if ANY Judge in the land on contemplating the behaviour of POL as a company and of its witnesses would not come to the same conclusions that Justice Fraser may or may not have reached already.

 

 

The POL Board of course do not have the insight into these matters that I have because they have made no attempt to find out for themselves but relied on advice and information from the very people who got them into this mess in the first place and whose incompetence is on display every day the trial sits.

I could also say that about the POL Legal team as well.  I can’t imagine what is going on in the background there because they have the same problem in that they are reliant on the incompetence of POL to provide them with the evidence they need to win the case (they can look but they won’t find any)

So I have no idea why they chose to go down the recusal route although I have speculated about it.  Justice Fraser as an incredible decision to make but I think in the long run whatever he chooses to do will have no impact on the outcome at all.

What the POL board though will have to do now is to explain to the likes of me in Freedom of Information requests, the Government Minister in charge although she sounds as if she is totally out of her depth (a here today and gone tomorrow politician), the media, the interested select committees and sooner or later the National Audit Office and the Police where exactly all the money is coming from to pay for this extravagant and now totally unnecessary trial.   If they for one minute think interest in this is going to wane then think again.

When this is all over and the claimants have won, it is safe to say that the reputations of many if not all of the PO Board members who have elected to continue pursuing this lost cause using presumably public funds will be damaged beyond repair.  Idiots all.

Inside the head of Sir Tim Parker

 

An open letter from me to Sir Tim has met with no response which was always the likely outcome, but there has been some action in court and in Post Office Ltd since then.  Most notably of course the application for Justice Fraser to recuse himself on the grounds of Bias which by all accounts can be no more than a delaying tactic rather than a serious assessment of the Judge’s impartiality.  I have thought about little else since that explosive moment in court only a few days ago and wondered what on earth POL are up to when it is so clearly obvious to even the most impartial and intelligent observer that POL have lost this case hands down based on the evidence and witness testimony already produced in court.

To try and get an understanding of such irrational behaviour I turn to Robert Burns who in a Poem whose title I shall not name for legal reasons finished with these lines:

O wad some Power the giftie gie us
To see oursels as ithers see us!
It wad frae mony a blunder free us,
An’ foolish notion:
What airs in dress an’ gait wad lea’e us,
An’ ev’n devotion!

I have tried all my life to see the other side of the argument and to try and understand how someone can oppose my opinion because in doing so it allows me to either form a better opinion of the situation because the opponent raises good points that I did not understand at the time or to create a better rebuttal to the opposing point of view.   In this case though I just cannot get to grips with what must be going through Sir Tim’s head.

There are four trials scheduled in this GLO, the common issues one has run its course and a decision published, the Horizon trial has stopped just short of the Expert Witness testimony and there remains a trial on Breach of Contract/Causation as well as one likely to try a couple of claimants cases.  POL have lost the first two trials hands down (although the second hasn’t been completed the decision is surely obvious to Sir Tim and his legal team).  These first two trials produce the background and evidence required for the Third trial and again it must now be so obvious to POL’s legal team that they don’t have a leg to stand on in the Third because of the evidence from the first two that they are going to lose that as well.

That all adds up to the fact that continuing with this GLO makes no sense whatsoever.  So why has Sir Tim chosen to continue?

At the very outset of the trial POL declared that an outcome in favour of the claimants would cause an existential risk to the very future of Post Office Ltd and at that time, putting my ‘see yourself as others see you” cap on I could understand that POL firmly believed that they had a good case and could win.  Now nearly through the first two trials POL must see they are marching towards defeat and perhaps we must consider that this existential risk is real.  If that is the case then I can understand carrying on and deploying all the underhand tactics they can muster.  One of these is to force the claimants in to a corner, lengthening the trial and by doing so reducing the eventual amount of money the claimants will receive by way of settlement.   Introduce threats of appeals at every stage of the process then it is perfectly possible that at some point the claimants will have nothing to win as the potential legal costs mount and as they mount the claimants financial backers will be under pressure to have the matter resolved as soon as possible.

So as far as tactics go in this trial I might now understand what is going on in Sir Tim’s head.   There is just one point I would throw in here.  An existential threat to POL is one that would see the business collapse.  Now you cannot say that unless you mean it and in POL’s case you are certain that their only shareholder would allow it to happen.  So it is probably safe to assume that Sir Tim has discussed financing a settlement of the claims with the Government and they have refused to provide the funding.  That is bizarre in itself as it would be political suicide but still a conclusion to be drawn from what we know.

So I don’t know what is going on in Sir Tim’s head, I can only surmise.  But one thing I do know, is something that is NOT going on in Sir Tim’s head.  He has completely overlooked it and should he carry on with this strategy which can no longer be about winning the case on pure legal terms, the thing he has overlooked is going to catch up with him and I would suggest possibly destroy his reputation and future career.  He has a chance, one that is getting slimmer each day as the trial progresses, to recover the situation and I would suggest that he considers the quote from Robert Burns above and do something about it.  It would indeed be a foolish notion not to.

Should he or shouldn’t he?

 

Should Judge Fraser recuse himself from the current trial as requested by Post Office Ltd (POL)?

I am sure that is the question in everybody’s minds at the moment but to answer that we need to consider the rationale behind the request and the consequences of whatever decision the Judge makes on this matter.

First though, thanks to Nick Wallis as ever for pointing out the financial consequences of this recusal application and to Mark Baker for a very revealing legal observation.

The rationale is perfectly obvious and if it is obvious to me it is obvious to the judge also particularly after yesterdays evidence and that is to delay this trial as long as possible and to squeeze the claimants source of funding for this trial dry.  From what I have read in the application for recusal there is no merit at all in what it claims because the outcome of the trial is now beyond any doubt whatsoever, given yesterday’s shocking revelations in court, and that will be complete and utter victory for the claimants.

There can be no doubt in anybody’s mind now that even a replacement Judge will come to the same conclusions that Judge Fraser has reached and will reach.  If the trials are rerun then the same questions will be put and the same answers given.  There is little point in rerunning the trials in the hope that the decision will be different with a different judge – it cannot be. (I have just re-read this while checking the document and it just sticks out like a sore thumb – recuse the Judge by all means but where in your application does it point out why you think the decisions would be any different – ABSURD)

So taking the above into account the Judge has to consider whether an honest and independent observer would consider whether or not the Judge has behaved in a biased way during the course of the trial and if this would affect the decision of the court.   But this is no ordinary trial, this is a Group Litigation Order to be heard over the course of several years and in several different trials.  In an ordinary trial there could be a recusal request at any stage of the proceedings prior to the decision of the court being made.  AFTER the decision you can’t recuse the Judge!  You can appeal the decision.  You can ask for another judge to hear the sentencing trial but you can’t ask for a recusal after the trial has been completed.

In this case though there are several trials and a decision has been made in the first one.  That stands and POL say they are contemplating appealing the decision.  Judge Fraser cannot be recused from it because that trial is over.  He is being asked to recuse himself from this and future trials in the GLO on the grounds that he has displayed bias and has predetermined his decisions based on part on evidence that POL suggest should not have been part of the common issues trial.  POL, it should be pointed out, do not suggest that that very same evidence should not form part of future trials.

The fact is though that this GLO consists of several trials, the first one has been heard and a decision has been made.  No matter who presides over the trial the outcome is the first in several decisions and the decision in the first trial will ALWAYS and HAS TO influence the Judge in the outcome of the future trials.  THAT IS THE PURPOSE OF THE TRIAL and why the sequencing of them is so important.  POL are not saying the Judge did not have an open mind going in to the first trial they are saying he has a biased opinion at the end of it.  He is meant to for God’s sake although Bias implies unfairness which it is not.

So here is a real problem for POL and the Judge to consider (enter Mark Baker stage left).  This recusal application wasn’t written in 10 minutes although it was dated and signed yesterday by the applicant.  POL could not have known what was to transpire in evidence yesterday before they wrote it and bias or no bias the same honest and independent individual who would consider whether bias had been displayed by the Judge would at this stage in the trial have reached a conclusion on whether or not POL were guilty as claimed.  All the evidence has been produced and the only witnesses to come were the experts who can only talk on what has been produced in court already.

More to the point though, has the Judge displayed any bias in the court towards the claimants during this second trial?  No. None.  He has been completely impartial and treated Ms VdB for example with the respect that she doesn’t deserve.

Moving on, there is no doubt that this is a seriously smart Judge.  He knows the game and he takes everything, even the smallest piece of seemingly innocuous evidence in to his brain and cogitates on it.  He wasn’t born yesterday either and he will have been perfectly aware as all judges must be that a recusal application could be made at any time so in carrying out his duties as a judge he will have gone to great lengths to maintain his impartiality.  He will have taken this into consideration when reviewing his decision before publishing it for sure.  Therefore to accuse a Judge of Bias is an extremely serious and possibly career damaging charge if it is upheld.  On the other hand the Judge can determine that the application was wilful in that its purpose was mainly to delay the proceedings for what appears to be financial reasons that would be particularly injurious to the claimants.  Justice cannot be bought and I am sure he will consider this carefully.  As an addendum to that, how many recusal applications can you make?  Will POL do the same with the next Judge?  By their very action at this stage in the trial if a new Judge comes in he will see the tactics of POL and be biased against them from the very start!  No the only reason behind this is tactical and not based on any overwhelming evidence that the Judge is biased.

I understand he has said to both parties that they may appeal whatever decision on the recusal he takes which is unfortunate and of course POL will appeal if he decides to carry on.  Whatever happens the timescale of this GLO has been lengthened considerably which brings me to Nick’s point about costs.  Perfectly true what he says but even though the timescale is lengthened the additional costs will only amount to the rerunning of this current trial because the costs of the subsequent trials will have been accounted for anyway.  In addition the Claimants sponsors will be even more confident that their support package will bear fruit after yesterday’s revelations regardless of who the sitting Judge is.

The consequences though of yesterday’s actions by POL will come back and hit them hard.  As Nick has pointed out the slightest increase in costs will detract from the amount of damages the claimants will receive.  POL relies on the support and trust of the great British public and I am certain that they, the public, will inspire the media to admonish and ridicule this organisation for what they have done.  As I have said before only a complete and utter fool would now buy a post office and that has severe financial implications for all those SPMRs who own one.  They need to sit up and take notice and I think they will.

I have no idea what the Judge will do like all of us.  He is in a horrible place at the moment but having seen the man in action I know he will make the right decision.

Finally a wee word to Sir Tim.  Flashing blue lights may appear before your eyes in the near future and it won’t be as a result of a migraine it will be as a result of something you have completely overlooked.

Evening All.

Out with the Old bring in the New

 

There is a certain absurdity about this current trial on Horizon errors.  By Post Office Ltd (POL) own admission the Horizon system is no longer fit for purpose and it should be replaced.   I am sure they will do so in due course, but when that happens, by everybody’s own admission surely, it will introduce a raft of new errors as happens when any new software system is released.  If POL pretend otherwise and proclaim the new system as being robust and reliable just as they did in 2000 with the current system (and again in 2010 with HOL) then we are back at square one.  Presumably though POL will take more care when dealing with the new errors than they did in the past.  Well based on what we are hearing in this trial the safest assumption is that they will not as they are fighting their past mistakes tooth and nail and one can only surmise that they truly believe the methods they have in place at the moment are the best way forward.  Of course they will also be relying on their present employees to support the new system – the very people in court right now as witnesses testifying to the mistakes they have made.

One thing that I thought had been extremely reliable over the years of Horizon was the counter computer equipment that staff used.  The keyboard, the touch screens, printers and computer itself.  Yes there were breakdowns and replacements needed but by and large they were quite reliable and they lasted well past their sell by date.  But they were getting extremely old.  The workstation computer was at best a 486 processor I believe – ancient and slow in today’s world.   So recently POL decided to replace them all with the latest technology and decided they would plump for the cheapest on the market.  Yet another example of incompetence and one that has truly backfired on them.   Horizon, the not fit for purpose system, cannot handle the new equipment and the errors that this new equipment generate.

I am not going to detail every type of error that the new equipment has introduced but concentrate on one that I was reminded of yesterday in the trial.   Up until then I had no idea about problems with the old touch screen monitor causing phantom transactions but I can understand how these errors may have arisen.  Actually an important point – 10 years owning a post office and I was never told about the possibility of this error occurring.   Anyway, hearing of this error reminded me of Seema Misra’s trial and how her expert IT witness Prof MacLachlan had extensively criticised the keyboard layout AND the touch screen layout but he never gave any thought to the possibility of problems with the screen hardware itself.  This error would have been in the system from the start until that hardware was replaced,  It would be impossible to trace in log files.  Mmmm.

The discussion in the trial yesterday also talked about the 00 key and the mistakes that that has enticed out of SPMRS over the years, just as Prof McLachlan pointed out in 2010 and that key and the problems it makes for subpostmasters is still there.

I am no one man call centre but I do have access to social media platforms where thousands of SPMRs meet and discuss PO issues so when the rollout of the new counter terminals started across the network I was able to note reports of strange errors starting to happen.  One of these was and as far as I know remains, the most prevalent.  The built in swipe card reader causes lots of problems but the generic effect and most likely the cause are the same.   A user swipes a mag stripe card and, occasionally, instead of the system accepting the data on the card as it should, whether that be an account number or a name or in some cases a balance, the system instead interprets it as a sequence of key strokes entered into the keyboard by the user and this causes a wide variety of different outcomes such as purchases of stamps, cash deposits etc in fact any event that can be entered via the keyboard during normal operation.   This effect would also happen extraordinarily fast so all the user can see is the contents of the screen once the computer has processed the string of characters from the mag stripe card.   The reason I know this is the cause is because several times users have reported the final screen as showing a string of characters in a field on the screen such as an address for a postage item that could only have come from the card because of the format.   Not only that but some of that data is confidential and can now be clearly seen by a third party.

It seems to me that this error is down to the cheapness of the equipment that was bought.  I am no expert in programming for mag stripe card readers but I do know that they have a start and end byte/character that should be captured, processed and checked to ensure that the data the system has received in between the start and end characters is that which is recorded on the mag stripe.  I think that this is generally done by firmware on the card reader itself and error codes are returned to the calling program should the data not be verified after the card is swiped.  Whatever the reason, whether Lenovo do not include this industry standard feature on its card readers, or Horizon itself does not interpret the data received properly, it is a mess and clearly this computer equipment was not tested thoroughly before it was purchased for no doubt a very significant sum.

Just another item to add to the long list of incompetency displayed by the current management of POL who continue to think they are the ones who can fix the problems they created.  New blood is desperately needed in this organisation so I hope Tim Parker chooses Ms Vennells replacement wisely.