Swift II: the GIGO problem

How good was the evidence base and how was it managed?

This second post concentrates on what is sometimes referred to as the garbage in garbage out problem with reference to the Swift Review. The report provides a lesson in how “independent” reviews can, deliberately or otherwise, sanitise or conceal wrongdoing in organisations. Learning the lessons from this may help independent reviews come closer to serving the purpose they are ostensibly designed for.

What then of the evidence on which the Review was based? The Swift Report says the authors were granted and received unrestricted access to documentation through the Post Office’s legal department. That only takes one so far, particularly as we know that undisclosed information has been a feature of Post Office litigation to date.[1] How far the Swift review may have requested documents to be told they did not exist, or did not ask for obviously important documents which should have been volunteered to them, we do not know.

It follows that, the briefing and instructions provided to them is crucial. The following documents might have been expected to be referred to as matters considered by the Review team but are not mentioned. The implication may well be that they did not have them or have knowledge of them. They include the infamous Clarke advices (on the unreliability of Gareth Jenkins as a witness and the shredding of meeting notes on disclosure) and the Detica report. This 2013 report[2] indicated. amongst many other things, that “Post Office systems are not fit for purpose in a modern retail and financial environment” and that  there needed to be “a concept of quality control and rigour in the investigation process.” Nor are EY concerns about security issues in relation to Horizon mentioned.[3]  The Known Error Logsa crucial document summarising known problems, are not recorded as sources of information for the review or for the PO Investigation Reports that formed the central plank of their mediation scheme (para 69).[4]

As well as reviewing documentation, they met with Lord Arbuthnot (the leading politician taking up the cudgels on behalf of Sub-Post Masters (SPMs)), Second Sight (who had been independently investigating Horizon and case brought under Horizon until 2015), Deloittes, Fujitsu and, in particular one of their engineers, Gareth Jenkins, and Angela Van den Bogard of the Post Office. Alan Bates of the Justice for Sub-Postmaster’s Alliance was invited to a meeting with them but declined because of loss of trust in the Post Office.

This dramatis personae points to a substantial weakness in the evidence base and approach of the Inquiry: the perspective of the complainants (the SPMs) is missing save insofar as provided indirectly by Arbuthnot and Second Sight. Whilst they would have had a detailed understanding of the nature of many of the SPMs concerns, they would have been keen to present their own position as independent and balanced. Moreover, the importance of speaking to some SPMs is not only in their ability to relay evidence about what happened, but in understanding their perspective and the impact of PO behaviour on their lives. This speaks to the moral intensity of the decisions subject to revew, something I will return to in a later post. Given the review is designed to look into whether PO has done sufficient to address complaints raised about Horizon, the failure to speak to them is concerning. Whilst it may have been done to make matters easier, quicker, and cheaper for the review. This lopsided-ness in the evidence base reflects a view also, perhaps, which is seen in the report that the recall of SPMs is faulty and inexpert.

It also underlines the way in which the review is plainly heavily dependent on information supplied by Post Office and Fujitsu, mostly via PO’s legal department (para. 3). In some, but not all, respects the Report can be read as being rather credulous of that information. The description of training provision, for instance (para 37 to 39) is at significant odds with sub-postmaster experiences as recorded in the Bates litigation[5] and evidence given to the Williams Inquiry. Sub-postmasters and employees working in Post Offices have been highly critical of Horizon training and support (concerns which Swift somewhat brushes off). Swift also seems to accept that shortfalls were investigated, and so implicitly that all were properly investigated, as a matter of routine (paragraph 54) a view which can now be seen as flawed.

Such evidential biases can be structural features of a review which has limited time and resources to gather and assess evidence but the absence of victim perspectives in their evidence base is, given the terms of reference, something which might more fundamentally amount to a criticism here. It magnifies ways in which the process was vulnerable to various other processes of bias,[6] and where the PO view of evidence and processes is allowed to dominate decision-making.

As we will see later, there is also some indication in the report that PO may have sought to influence the Review’s substance by ensuring its views on plea pressure (bullying SPMs into guilty pleas as it is put) and agency (SPMs are commercial actors with the burden to prove PO failed) were taken into account. There would, it seems reasonable to assume, have been no such influence from anyone speaking for SPMs at that stage. Independent reviews of this kind naturally favour the paymasters and main points of communication with those paymasters. It introduces vulnerabilities to poor judgement which need to be carefully countered.

Most curiously, Sir Anthony Hooper, a former Court of Appeal judge and chairman of the mediation working group was also not talked to by the Review. For reasons which bear investigation, and I hope are investigated by the Inquiry, that process was seen as not being, “directly within the scope of our concern as they are second order process matters.” This phrasing bears the unfortunate hallmarks of legalistic excuse making without proper foundation. Whether it was the Swift team or the PO that ruled him out of scope is a very interesting question. Sir Anthony Hooper appears to have, at some stage during the life of the mediation scheme (between 2013 and 2015), told a senior person within Post Office that he did not think the SPMs had seen were likely to have been dishonest and that the problems the scheme was dealing with were likely to have been caused by Horizon.[7] His view of the complaints handling, as independent chair of the mediation scheme, would have been profoundly important on any ordinary interpretation of the Review’s terms of reference: it was the primary way of dealing with the complaints from 2013. That was doubly the case given very public concerns about that the mediation scheme voiced by James (now Lord) Arbuthnot MP.[8] The omission is all the more interesting as some in Post Office may have been aware of Sir Anthony’s doubts. The reasons for not speaking to him, and why Swift specifically mentions his exclusion, are worthy of probing. His exclusion is suspicious and the reasoning for doing so is unconvincing.

In these ways evidence base for the review were problematic. The Review team are naturally dependent on the Post office, and in this case PO lawyers, to provide them with relevant material. The nature of the instructions and documents provided is a matter of profound concern, given apparently key documents may have not been before the Review team, and the decisoin not to speak to Sir Anthony Hooper. As we will see in a subsequent post, the importance of the Clarke Advice, especially on the Jenkins’ Question rears its head.  A second matter is the .way in which SPM perspectives are treated as peripheral to the Review, and in particular the failure to meet any SPMs directly. This had substantive implications (Swift’s findings about training and support for instance) but also subtly diminished the ability of the review to understand and appreciate the perspective of a, indeed the, key constituency. They were central to the matters under review and yet they appear to have been treated as unreliable and inexpert.

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[1] Richard Moorhead, Karen Nokes and Rebecca Helm, ‘Issues Arising in the Conduct of the Bates Litigation, Post Office Project: Working Paper 1’ (University of Exeter 2021) <https://evidencebasedjustice.exeter.ac.uk/wp-content/uploads/2021/08/WP1-Conduct-of-the-Bates-Litigation-020821.pdf>; Richard Moorhead, Karen Nokes and Rebecca Helm, ‘The Conduct of Horizon Prosecutions and Appeals, Post Office Project: Working Paper 3’ (2021).

[2] JL Ferrari and S Coyle, ‘Fraud and Non-Conformance in the Post Office; Challenges and Recommendations, G-119 Fraud Analysis (“the Detica Report”)’ (Detica, BAE Systems).

[3] Such as Minutes of POL’s Risk and Compliance Committee showing that not all risks identified by the Ernst & Young audit had been addressed. Bates No 6 para 791

[4] Those reviews were sometimes seen by Swift to be “overly robust in rejecting anything other than operator error” (para 169). Evidence in Bates subsequently suggests on occasion Fujitsu mischaracterised PEAK records as indicating user-error rather than being unexplained, or potential or actual Horizon errors, possibly to avoid contract penalties. See, Bates No 6 181, 182, 493

[5] Bates v Post Office  Judgment No 3 ‘Common Issues’[2019] EWHC 606 (QB); Bates v Post Office Limited Judgment (No6) “Horizon Issues” [2019] EWHC 3408.

[6] Donald C Langevoort, ‘Getting (Too) Comfortable: In-House Lawyers, Enterprise Risk, and the Financial Crisis’ [2012] Wis. L. Rev. 495; Jennifer K Robbennolt, ‘Behavioral Ethics Meets Legal Ethics’ (2015) 11 Annual Review of Law and Social Science 75.

[7] Nick Wallis, The Great Post Office Trial https://www.bbc.co.uk/programmes/p09ljxwc

[8] ‘MPs Force Inquiry into Post Office Subpostmaster Mediation Scheme’ (ComputerWeekly.com) <https://www.computerweekly.com/news/2240238523/MPs-force-inquiry-into-Post-Office-subpostmaster-mediation-scheme> accessed 17 September 2022.