Anatomy of a "Cover-Up"?

Covert Post Office Tapes tell us about one beginning for what is colloquially known as the cover-up stage. What role did lawyers play in this? Is cover-up a legitimate legal strategy?

The Post Office Inquiry is about to enter its crucial phase: we shift from the how PO prosecuted and sued postmasters phase to what is colloquially known as the cover-up phase. How did the Post Office react as problems with Horizon and their prosecution of Horizon cases began to mount? What did they do with the red flags that were hoisted? Did they honour them or burn them?

This phase will focus on these questions: Did those in power “know” about Horizon problems and prosecution problems, when, and what did they do about them? If “they” did know, soon enough to be troubling, and did not act appropriately, then in a loose sense, a “cover-up” would have been established. In one sense, the answer clearly suggests itself. Thousands of ruined lives going back years are only now coming to be understood and yet to be fully addressed, but a fuller account of the injustice requires a more forensic look if we are to truly get to the bottom of how and by whom the sub-postmasters (SPMs) were wronged.

Secret tape recordings have been published by ITV, Channel 4 and Sky (available links are at the end of this piece). They deepen our knowledge of, but do not fully answer, those questions. In this, and at least one subsequent post, I want to explore the significance of these recordings, particularly regarding the lawyers involved. Today, I will summarise what the tapes tell us on their face before; tomorrow, I hope to contextualise and point to the most significant issues.

I am interested in the role of lawyers in such moments, and usefully, the recordings focus on two of the key lawyers, both senior in-house lawyers. The legal strategy when organisations face reputational challenges can sometimes, perhaps often, lead to a strategy of denying, undermining, and containing allegations of wrongdoing against their clients rather than acting on them. That strategy can be perfectly legal, lawful but awful, or unprofessional, even criminal. In the next few weeks of the Inquiry, we will hear much that will help form judgements on which, if any, of these lines have been crossed.

In essence, what we hear in the tapes is Ian Henderson and Ron Warmington of Second Sight telling various senior actors within the Post Office that: (1) what is called remote access* to their Horizon system is possible despite denials to the contrary; (2) there are serious inadequacies in some prosecutions and suspensions of SPMs by by the Post Office; and, (3) there is the potential that PO has engaged in misleading of the courts.

The tapes appear to date from 2013 well before Paula Vennell’s appearance before the Business Select Committee in 2015 and the Bates litigation in 2017 to 2019. During these later events, various assertions were made, which now appear to be false.

One call is dated precisely as 22 May 22 2013, between Henderson, Warmington and Simon Baker, a Post Office IT specialist. In discussing that they appear to have discovered remote access is possible, Henderson is heard to be emphasising the significance,

Henderson: it’s more than one email… We’ve got sort of other emails that talk about the Bracknell function accessing live data, making changes to the system. Not in real time but… It says something from memory along the lines of , “Oh, and this will be corrected overnight” or “will make these adjustments in the overnight run”.

Baker is aware of this already, because this exchange occurs, apparently in the same call:

Baker: Okay, so just to bring you up to speed with where I am, I did ask Fujitsu to actually come clean, and apparently, there is a process where, sorry, there is a technical avenue where you can technically do some form of adjustment. But apparently, it’s very carefully monitored control, audited type stuff.

Henderson: the impression I get looking at the emails is whilst in theory there might be those sorts of controls and so on, you know, they’re the sort of controls in a procedures manual. There’s actually, there’s no electronic lock, if I can put it that way. In other words, if somebody in Bracknell had a brainstorm and wanted to do something they could just do it.

Warmington: Yeah we sometimes refer to them as controls for those who wish to obey them.

It’s a memorable phrase.

From the other disclosed excerpts of that interview, they discuss the possibility of such interventions being linked to an SPMRs ID (so not discoverable afterwards and so invisible and not auditable) and done without the SPMs being informed. Henderson says, “Based on email traffic I’ve seen, there’s nothing to indicate that he or she was informed.”

Baker also says he has told Alwen Lyons, the Company Secretary, and Susan Crichton, the Post Office chief lawyer, about the Bracknell problem; that he is going to continue to dig around the subject; and, that when, “I told them I just found out from Fujitsu there is a mechanism …their faces dropped.” They understood the seriousness of the allegation is the point he is trying to convey.

Henderson also points out, “one of the key emails has Gareth Jenkins’ name all over it so it was absolutely clear that this was a widely understood capability within the system.” And Baker appears to confirm this, having spoken to Jenkins the previous day, he says “he didn’t make me any effort to hide it.”

Later that same day, it seems, there is a meeting with the “top brass”. That meeting takes place with Alwen Lyons (the company secretary) and Susan Crichton (General Counsel). Significantly, Paula Vennells is known to be meeting James Arbuthnot the next day to discuss Horizon problems. Arbuthnot was part of the process leading to the appointment of Second Sight. Crichton confirms that they have not told Vennells about Second Sight’s (or Baker’s) discoveries around remote access.

Warmington: I would say you’ve got to decide whether you want her to know about this before the Arbuthnot meeting, and if she does know about it before the Arbuthnot meeting, you’ve got to make the decision about whether she tells him about it

Henderson: this is so close to one of the issues at the heart of the complaint. You know. And I think we pretty well have confirmed that the capability that was alleged in some shape or form does appear to exist.

Warmington… Well we, could be in a very awkward position if we are trying to defend why we are concerned, the whole issue about sort of Arbuthnot’s main concern, yeah, how he would react, you know, we can’t keep this stuff from him.

Henderson: If we are asked a straight question by anybody, frankly, we’ve got to give a straight answer. I think in relation to Arbuthnot, someone needs to brief Paula.

When Crichton tells them, Vennells is “not aware of it.” Henderson says, “I think it is dangerous not to brief Paula.” And Warmington agrees. Lyon’s asks, “What do we say though?”

There response appears to be to warn against Vennells being blindsided on it. And Henderson says, “What we are getting, Susan, not to put too fine a point on it is confirmation that the sort of facility that was described or the sort of capability that was described does exist.” In essence, that Michael Rudkin’s allegations of remote access appear to be true.

Rudkins’ allegation was that Horizon could be altered in real-time by Fujitsu from Bracknell. He had visited as a National Federation of Sub-Postmasters Fujitsu rep and been shown the facility by a Fujitsu member of staff. The day after this happened, he says, his wife’s branch was visited by auditors accusing her of the £44,000 shortfall. She was wrongfully convicted and he was fired. It is one of the most disturbing stories of the entire awful saga. Either it’s a terrible coincidence, or Rudkin was targeted for his discovery, and both his and his wife’s lives were ruined.

In another recording, presumably a subsequent meeting, Crichton twice says Vennells has now been told about the Bracknell problem. They appear to have started to work out a strategy for handling Arbuthnot. It may be later the same day.

Warmington: if James says something like, “and where are you on this assertion about the Bracknell covert operations team” as it was referred to by Rudkin.

Crichton: That’s a specific case which we will come back to when we finish the investigation.

Warmington : Yes, well, as long as she doesn’t come back and say, “Look, so what this Bracknell issue, what is he talking about?” “Oh, we’ve known about that for two months”.

Crichton: She knows about the allegation. She knows we are working on it.

Warmington: Oh, that’s all right then. Good.

Crichton: We mentioned it to her.

Warmington: Okay

Crichton: We’re all going, “well, that’s all very odd.”

In a clip shown in a separate broadcast, which sounds like it comes from the same conversation, certainly a meeting between Second Sight and Crichton and Lyons Henderson talks about, “another risk in the whole process is Fujitsu getting nervous about the whole thing and I’m picking up some vibes along those lines.” Crichton encourages Warmington to include that in a summary email, because, she says, “We have got a difficult few years with them, I think.”

It’s also noted that the Horizon Helpdesk appears to be in on the remote access fix:

Henderson: What we’ve seen from the emails is they were getting instructions, in effect, directly from the helpdesk saying “Look we need this fixed. You know, can you work your magic?” And, you know, the responses are going back “Yeah, it will be done in the overnight run tonight. We will change the balances or whatever.”

In another excerpt, Vennells joins a call. We are told she is explicitly made aware of allegations in this call that the postmasters’ branch accounts could be accessed remotely. And we hear Ron Warmington warning against publicly denying it, “the last thing you want is a spot review response that says, categorically, there was no access to live data from Bracknell if, in a week’s time, some bloody whistleblower pipes up to say, well, actually, I was working on the second floor and we routinely did X.” So at this point, Warmington seems to be trying to persuade Vennells to come clean.

There is also a discussion of a way of denying remote access, which, it sounds like, has been suggested:

Warmington: what might be interpreted in the press as weasel wording is extremely dangerous. You know, we’re not just asking whether people in that basement had access to live systems. Even if your answer is, “They did have access to what they called the live system, but it wasn’t live,” which itself, you know, we’re having to kind of word carefully to make it sound other than stupid. You know, when you say, “They didn’t have access to the Horizon system, but actually they were passing entries to live data, but you didn’t ask that.” That is really dangerous ground.

So, we can start to see that the General Counsel is dealing with one of her ethical obligations: keeping the client informed of material matters in the sense she has engaged the CEO in the problem. Crichton is also heard to say, although I am not clear if this is the same meeting, “She [Vennell]’s got everything. The way that I’ve tried to brief Paul is, as soon as I have evidence that, you know, that there is a problem, she knows about it the next minute.”

We don’t know what she told the Board, which is likely to be important; for such a serious matter, the Board may need to be told to ensure the ‘client’ (the Post Office) knows of such momentous information.

There is also, perhaps, the beginning of an obstruction being created.  Rather than deal with specifics of an allegation of remote access, Crichton says above, in effect, we can delay answering those while we investigate.

This would be reasonable if further investigation was a proper and proportionate response. It could be argued that independent investigators have already investigated and told them what the position is, but the PO can be seen to be querulous in their response ("That’s all very odd”) and the hunt for a form of words which minimises the problem. Second Sight’s remarks might be regarded as being close to but short of certainty about what they have discovered.

Post Office querulousness might be explained by the unusual nature of Second Sight’s instruction. Post Office agreed to their investigation and funded the investigation as the ‘client’, but it was an appointment forced on them by political pressure led, if I have this right, by James (now Lord) Arbuthnot and the Justice for Sub-Post Masters’ Alliance (Alan Bates and Kay Linnell in particular).

There was a tension here: the Post Office were inclined to resist whilst wanting to appear cooperative. How they might have put it themselves had they been asked, and had they been transparent about it, is, they wanted a second opinion. They were not, however, transparent about it, as we will see.

The strategy perhaps becomes a little clearer in another relevant excerpt from the tapes. As Alex Thomson for Channel 4 put it in the story, Second Sight were instructed to leave miscarriage of justice questions alone. This shows not only that they were raising problems with remote access, but Second Sight were also raising problems with convictions  and other mistreatment of Sub-Postmasters

Crichton: Ian had a chat with Paul earlier on. And we’ve had a couple of chats this morning… So, Paula agrees that the original scope of the investigation did not go as far as looking at whether it was the miscarriage of justice point, Ron and Ian. So that’s, that’s not what she’s looking for She’s looking for the systematic - or systemic – rather, not systematic – systemic weaknesses in the Horizon system. But not, as I said, it doesn’t go on to that next point around whether or not it’s because the miscarriage of justice, or suspension of the sub-postmaster. Because I think that, when she found it, then it’s up to us to look for and see what impact it might be, if that happens.”

This is the same Paula Vennells who indicated to the Business Select Committee how important it would have been to her to “surface” evidence of miscarriages of justice. Second Sight had begun to surface such allegations and, it appears, were told to stop. A point to which we will return tomorrow.

It is alleged that there was also a deliberate strategy to “shut down the MPs, make them go away”. We do not hear if this is part of the same meeting but the strategy must have been formed in 2013 before Crichton left the Post Office because she was involved in the conversation:

Crichton: the need to somehow have a plan to close down this process. I mean, even to the extent of stopping MPs sending cases in now.

Lyons: Yep

Crichton: So it’s how do we close down the MPs side of the process, and what would work for MPs? And what can we sell to MPs? And how quickly can we do that?

Lyons: So is there anyway, and I’m thinking out loud here, is there any way of shutting down the MP cases, and making James and his friends happy, so they’ll just go away basically?

So two elements of the strategy emerge: (re)investigate the allegations (a second opinion) and shut down (and appease) the complainers. In tomorrow’s post, I will explain what I think they meant and the potential implications of the lawyer’s involvement. But before doing that, I want to deal with how the matter proceeded after Crichton left, apparently suddenly, in 2013.

We are told of another tape from Dec 2013 when Henderson and Warmington are heard discussing matters with Chris Aujard, Crichton’s replacement as Acting General Counsel.  Ron Warmington tells him about Alison Hall being prosecuted,

...for false accounting when the underlying cause, without much doubt, was that she got in a complete mess over scratch cards when POL knew that there was a huge problem with reconciliation of scratch cards, and yet it is assumed either the investigation team and the prosecution team didn’t know that or if they knew about it they didn’t cut her any slack because of it is really serious because petition unsafe conviction.”

Henderson: we are consistently seeing prosecutions that are focused on false accounting issues with no regard for actually identifying what has caused the deficiency in the first place.

Aujard: It is undoubtedly the case that there is a lot of, you know, a lot of individual distress

….

Warmington: in many cases, there was a threat of a theft charge, which was lifted as part of the deal, sort of courtroom steps deal, where the condition was we will not pursue the theft charge, by the way, we wouldn’t have the information or the evidence to win anyway, as long as you plead guilty to the false accounting and as long as you refrain from saying anything in your defence to do with the criticism of Horizon.

Aujard is also told, as a result of these problems, Post Office may have misled the court:

Warmington: that is so serious because what I meant is that POL proceeded to criminal prosecution without the underlying factors having been investigated. Now that is very serious because it would be a criminal offence to not yield up to the defence evidence that might undermine the prosecution. POL has acted basically in a way that it could be accused of having misled the courts. It’s a serious is that, Chris.

Aujard: my focus is, I am dealing with each case as it comes through. So the macro, macro issues are another pot. They’re not in my pot. They belong to other parts of the organisation and I can feed through some of the thoughts on this call into that portal.

Aujard left his own portal behind in 2015, some time after Paula Vennell’s disastrous appearance before the Business Select Committee.

Tomorrow, I will turn to how what has happened here relates to what happened next.

What I would note now is my reaction to Mr Aujard is he appears to be deflecting and diverting from the issues raised because he feels very uncomfortable perhaps or because he is just trying to ‘handle’ (absorb without acting on) Second Sight’s concerns. Serious miscarriages of justice are deflected as “individual distress” and the legal problems raised belonged in another portal. This inhumane language has the added benefit of not revealing to Second Sight who is dealing with it and what is happening in the other Portal.  

This is a first signal of the absence of transparency I mentioned above. We have one other bit of the evidence pointing towards deny, undermine, and contain. Only the containment part of the picture appears to have been apparent at this stage.

Tomorrow I will look at some of what appears to have happened next.

Links:

Channel 4 News https://www.channel4.com/news/more-secret-tapes-prove-post-office-boss-briefed-on-system-backdoor

https://www.channel4.com/news/exclusive-paula-vennells-was-briefed-about-covert-operations-team-that-could-alert-subpostmaster-accounts-two-years-before-parliamentary-appearence

https://www.channel4.com/news/post-office-scandal-outrage-as-channel-4-news-reveals-covert-recordings

ITV News https://www.itv.com/news/2024-04-03/secret-2013-tape-shows-top-post-office-lawyer-was-warned-of-unsafe-convictions

Sky News https://x.com/stugoo17/status/1775765121702252594?s=20

*See here for a description of why remote access may be a misnomer