Swift V: Independent Reviews, breaking bad news gently
Let us turn now to two of the concerns the report does identify which Swift recommends the Post Office address. Here the report is something of a curate’s egg, it illustrates the perils of breaking bad news too gently.
Remote access, the ability to access the Horizon system remotely and later data within it, was a bone of contention until part way through the Bates litigation. The Post Office denied the full extent of remotely access until part way through the second Bates trial. It is a vital point, a system that can be remotely and secretly accessed, especially one where controls o remote access were too lax, is an insecure system and that insecurity is relevant to the fair prosecution of Horizon victims.
Swift contains an extensive section on remote access. It points to a weakness in Horizon. The system could be remotely accessed by Fujitsu, to alter/inject account entries, and this could be done without there being knowledge on the part of SPMs or [astonishingly] records of it, including through the use of fake digital signatures. The system was, in other words, insecure and this had not been disclosed to those convicted for Horizon shortfalls.
Swift took the trouble to underline the significance of these findings. They can be summarised as saying:
1. POL and Fujitsu have been maintaining, including in Parliament, that branch balances could not be remotely altered. Indeed, the Review was apparently prompted by the Government Minister (Baroness Neville-Rolfe) wanting to get to the bottom of allegations in Panorama, publicly denied by PO, that remote access was possible and widely used.,
2. The evidence suggests remote access is possible came from a whistleblower (Richard Roll who appeared in the Panorama programme) and but also, and this is what persuades Swift, from Deloittes in reports to the Post Office in 2014.
Note that what Jenkins told Swift about remote access, if anything, when they met is not discussed, although as we have discussed in a previous post, omissions in his evidence are briefly mentioned.
Swift is worth quoting on remote access for the tenor and analysis as this would (or should) have impacted on how readers of his report understood the significance of what he was saying:
1.45. It seems to us that the Deloitte documents in particular pose real issues for POL. First, both the existence of the Balancing Transaction capability [which made remote changes to transactions] and the wider ability of Fujitsu to 'fake' digital signatures are contrary to the public assurances provided by Fujitsu and POL about the functionality of the Horizon system. Fujitsu's comment we quote above seems to us to be simply incorrect, and POL's Westminster Hall Response is incomplete. To the extent that POL has sought to contend that branch data cannot be remotely 'amended' because a Balancing Transaction does not amend existing transactions but adds a new one, we do not consider this is a full picture of Horizon’s functionality. The reality is that a Balancing Transaction is a remotely introduced addition to branch records, added without the need for acceptance by the SPMR, which affects the branch's balance; that is its express purpose. POL has always known about the Balancing Transaction capability, although the Deloitte reports suggest the digital signature issue is something contrary to POL's understanding.
This shows that Post Office has been seen to be misleading others about Horizon functionality about which it had always known and that it may not have understood the faking digital signatures point. This comes close to saying, without quite doing so, that Post Office’s public position has been deliberately misleading. It is delicately put, perhaps partly because they do not need to determine whether people knowingly or recklessly misled parliament, perhaps partly to soften the blow for their client.
Given the potential for independent reviews to be opportunistically read this is a regrettable approach. A better approach would have averted to the potential that information flows on this have been misleading, potentially deliberately so, and consider the impact of that on the information flows on Horizon general and into the Review in particular. Moreover, clarity about matters of such concern is paramount if they are to ensure their Review’s lessons are properly conveyed to the client and others who might be misled by it.
An important further point is that Tim Parker chaired Post Office through the Bates litigation. In that litigation the idea that ‘secret’ remote access was possible was denied until mid-way through the second major trial of the matter, yet he was told this possible in early 2016.
The pill is sweetened in what follows next.
146. We recognise that the existence of the two matters highlighted by Deloitte are most likely to be wild goose chases, It is improbable that they have been used beyond the identified instance. However, in the light of the consistent impression given that they do not exist at all, we consider that it is now incumbent on POL to commission work to confirm the position insofar as possible. Accordingly we make a recommendation to that effect.
The first sentence is a surprising claim in the light of Richard Roll’s evidence to the Panoroma programme to which the Review refers. This indicated there were “lots of errors” when they “went in the back door and made changes” (para. 87). They do not evaluate those claims event though they do report, “We have been provided with various correspondence between POL and the BBC in which POL complains about the reporting of the BBC. We do not propose to address any of that material.” (para. 88)
Given that the Swift Review has spotted that Post Office has misled others about this functionality; given the concerns of the SPMs; given Deloitte’s view that further checking of the impact of bugs on accounting errors could be expected; and given Roll’s statements to Panorama, it is surprising that the mollifying wild goose suggestion was made. It may simply reflect the client-friendly structuring of the Review which I have commented on in earlier posts, it may be a response to lobbying by Post Office, or be it may be a genuine view at the time. Roll’s view is treated with careful disdain (at para. 137 Roll’s comments are minimised as ambiguous and unclear. “It is difficult to deal with or respond to those comments as a result.” (para. 136). A somewhat strange approach given the much more detailed description of Roll’s allegations garnered from Second Sight (para 142, footnote 8). and given they recognise in another section of the report a plausible basis for Roll’s statements, “that Fujitsu would use the functionality to correct system bugs without drawing them to the attention of POL or SPMRs in order to avoid and form of contractual penalty” (para. 142) and that Second Sight appeared to hold evidence of what Roll’s allegations were which the Swift Review did not appear to seek (para 145, footnote 8).
It is against this background that they note the problem with Gareth Jenkins evidence discussed above. This shows they understand the materiality of the problem of remote access to potential appeals and defences and is an indication that they have spotted some of the deficiencies in evidence provided to the Courts by Jenkins that Clarke too spotted and yet appear to be downplaying them somewhat rather than drawing them together to draw the kinds of conclusions that Fraser J and the Court of Appeal do in Bates and Hamilton. An important question is why?
Pressuring to Plead Guilty
A second area of strong concern voiced by the Swift Review is Post Office prosecution practice around charging and plea. The Review is plainly concerned that SPMs may have felt improperly pressured into pleading guilty to false accounting in the absence of evidence for theft. Again, the emphasis in the text is striking:
this issue is one of real importance to the reputation of POL, and is something which can feasibly and reasonably be addressed now ….Cartwright King were not asked to consider the sufficiency of the evidence when undertaking their disclosure review. We do not think it is safe to infer that any advice Cartwright King gave on POL's position on any appeal must have involved a full evidential review. The allegation that POL has effectively bullied SPMRs into pleading guilty to offences by unjustifiably overloading the charge sheet is a stain on the character of the business. Moreover, it is not impossible that an SPMR would have felt pressurised into pleading guilty to false accounting believing it to be less serious when they might not otherwise have done so.
The way the Review rehearses some arguments against their own view (that Cartwright King have already reviewed these cases and the view that false accounting is not necessarily less serious than theft) suggests to us that they may have faced some resistance on this recommendation. The ‘not impossible’ part may have emanated from Brian Altman QC advising in March 2015 (he says, we are told, it is not helpful to say theft and false accounting charges are of different seriousness). In this way the Review seems to suggest Altman may have already advised on the pressure to plead concern. It is not clear why he was asked to advise or by whom, although the date suggests it comes shortly after Paula Vennells's appearance before the Select Committee where she denied any evidence of miscarriages of justice.
Altman’s advice on this point seems rather questionable for the reasons given by the Review team in para. 14. A theft charge in the context of these cases was, and was likely to be perceived as, more serious (as I think any criminal practitioner would have said). There are three possibilities here: I am wrong; Altman may have been mistaken/his advice taken out of context; or his judgment here may have been influenced by a desire to protect the prosecutions and PO’s reputation rather than advise independently and fairly (which in advising on a prosecution he is arguably obliged to do).
Swift’s response is to say inappropriate pressure to plead needs to be reviewed, but only after advice on whether, “the bringing of a charge without sufficient evidence to produce a realistic prospect of conviction could be said… to cast doubt on the safety of the conviction.” They suggest Altman might advise (para 108) and supervise any subsequent review of those convictions (para 109).
That suggestion will be the focus of the next post.
 Bates No 6, 539
 They view this as applying to 18 cases (para. 100).