The case for the prosecution
What does a 'profoundly sorry' PO do to round off Phase 4? Often, it blames others and it roundly hacks off the Inquiry Chair.
The Post Office submissions at the end of Phase 4 were published yesterday. There was some controversy. Sir Wyn Williams has said he’s going to ignore significant parts of them because they draw on evidence (a criminal KC, Jonathan Laidlaw) that they had no permission for and that this was made clear to them in September (when their first attempt to get such evidence before the Inquiry was rebuffed). Williams points out one expert witness is enough and he’s an expert himself, given his prior practice as a barrister and judge in the criminal courts.
The Post Office, to the obvious displeasure of Sir Wyn, seem to have ploughed on and included such evidence anyway. Following process and respect for the judge? That’s for the little people.
It’s worth spending a few minutes noting what they say though. There are some important mea culpas, and I will get to them but there are also significant attempts to limit responsibility for the Post Office, and for individuals within it, notably the Board. There is also, to put it in colloquial terms, a distinct whiff of the Post Office still not getting it.
The point of interest I noted them making were as follows.
1. What the Inquiry heard were failures to investigate reasonable lines of enquiry were not always, in fact, unreasonable or always required. This seemed principally to be because when Post Office cases were brought by independent prosecutors (such as in Scotland) those prosecutors didn’t direct require further investigations, or judges didn’t direct further disclosure when asked to, or “independent counsel” didn’t pull them up on it and nor did Cartwright King. The point appears to be that their standards of investigation were often (not always) in line with prosecution practice generally. They may gain comfort from this point, but I don’t think anybody who has seen the evidence before the enquiry would do so. I am regularly approached by people, including very senior practitioners, who are deeply worried by the sometimes poor standards of prosecution and court practice. They suggest the Post Office cases are emblematic of bad practice, rather than unique.
2. For a body of cases admissions in interview as well as sometimes other circumstantial evidence are indicative of guilt and so excuse the need for disclosure of Horizon problems. This seems to be the primary basis for the Post Office line most visible in Nick Read’s letter (accompanied by a note from Peters & Peters) to the Lord Chancellor but also very visible in this submission: we think they might be guilty really. To which the response of most of those I talk to is along the lines of Harvey Weinstein thought the women fancied him.
3. It was sometimes perfectly reasonable to make plea conditional on repayment of alleged shortfalls and their refusal to accept any blame for Horizon. The Court of Appeal in Hamilton did indeed accept the former was the legal situation. To my mind, this is a legal position fraught with conflict-of-interest; rather than a point in the Post Offices favour, I would regard this as a weakness in the Court of Appeal’s decision and the law on which they (properly) relied.
4. They suggest false accounting and theft could be properly charged in many cases if a sophisticated view was taken of the relationship between theft and false accounting. A trouble with this is the view appears to have escaped the head of their own criminal department. As with Bates, at times the submissions here veered into the theoretical rather than actual; whilst they say Mr Wilson may have been confused, I would say they are trying to look beyond what actually happened to provide a justification as to what could have happened if they were given the benefit of substantial doubt and without any evidence to support it.
5. They basically concede the handling Mr Jenkins was completely inappropriate. Whilst they suggest “it is not inherently improper for prosecutors to suggest amendments and clarifications to expert reports” (a theoretical point) they concede that, “the partisan way that Mr Jenkins was instructed to attack or discredit a defendant’s case, as opposed to reviewing the evidence and forming an independent expert opinion, represented a regrettable and improper understanding of the role of an expert on the part of POL’s criminal law team.”
6. In a point which underscores their view at point 2 above, they say, that while some interviews were “unfair and inappropriate” that was “the exception rather than the rule”. They say interviews were PACE compliant (an insufficient basis for saying the interviews were fair) and any other problems in the interviews could have been resolved at court. Not if people are bullied into pleas of course. In a way this might be an implicit admission that interview evidence often hasn’t been tested but it forms the basis of their “they might be guilty” response.
7. They invite the court to “form its own views on the credibility of Mr Scott” (Post Office’s former director of security). I’m pretty sure the Inquiry didn’t need such an invitation and can see a bus even without anyone ringing its bell. They suggest that Post Office’s response at the time to the suggestion he had invited the shredding of documents was rapid and appropriate. This is something we will hear more about when Susan Crichton comes to give evidence. One interpretation of the evidence before the enquiry is that Crichton did not feel supported by Post Office in her challenging of Scott and left the business (Scott, it may be remembered, says Crichton encouraged him to deal with disclosure under the radar).
8. Although they claim to be straining against page limits on their submissions they spend a good many words highlighting why they think a black woman, whose conviction has been quashed, was in fact safely convicted. If we need one sign of a terrible culture in Post Office then this is it. No doubt if pushed they will blame their lawyers for it. The hypocrisy of them making their points here and then warning the Inquiry “to exercise caution” (para 38.5) in making findings is quite breathtaking. It is also the sort of warning off of judges that went on in Bates to Fraser's considerable anger.
10. That passage in their submissions is immediately followed by this, “None of the observations set out above are intended in any way to detract or resile from the apologies that POL has already made”. Insincerity is a drug, and the Post Office appear addicted to it.
11. Against their particular points they do, it should be noted, make a wide and general admission:
40. Whilst the particular facts of every case are unique, it is clear from JLKC's expert report that the nature of POL's failures were all too regrettably consistent. In short, his view is that the evidence has broadly demonstrated that POL failed in a large number of cases by way of: (i) inappropriate questioning or approach in interview; (ii) failure to pursue reasonable lines of inquiry based on what was known at the time; (iii) inappropriate charging decisions based on what was known at the time; (iv) inadequate consideration / conduct of disclosure; (v) the way in which expert evidence was obtained; and (vi) improperly making the acceptance of a plea conditional on not criticising Horizon and/or making repayment.
41. For some Postmasters" only one of these types of failure occurred; for others there were two, three, four, or even five such types of failures. Whilst there is obviously not a direct correlation between the number of different types of failure on the part of POL and the impact on each of the Postmasters (and their families) — indeed, just one failure is obviously one too many — cases where there are multiples or even many multiples of failures are obviously particularly egregious in terms of POL's governance and accountability. So, whilst POL recognises the differences between the cases, and recognises its particular culpability where there were multiple such failures, its apology to every one of these individuals is the same: it is profoundly sorry.
12. Audits [criticising the enquiry is not being really audits) were inherently limited not in an objectionable way except for the absence of “further adequate investigatory function”. Something closer to "any" would have been a better word than further.
13. Suspension and termination processes were “robust” but the paperwork suggests that appeal processes were run in good faith. That is, except for the failure to provide any mechanism for the disclosure of evidence and, ahem, the abolition of appeals as part of the “network transformation” process.
14. The Cleveleys case handling was flawed but not sufficient to alert Post Office to the truth of the allegations being made against Horizon (a joint expert had, on an evidence base limited by the PO basis expressed measured concern about Horizon) . Importantly though, they concede, anxiety in the business about this was directed at commercial interests rather than a proper investigation being carried out into the system (para. 70). And they appear to concede that the enquiry may find Mandy Talbot’s suggestion that, “neither she nor POL had anything to hide from public view” here was unconvincing (para. 84.1.2).
15. On Lee Castleton’s case, more ‘profound’ apologies are offered for a litany of failures on the helpdesk and so on. They are prepared to blame the nameless person who took the decision to issue proceedings but not, in the main, the way in which the case was fought. They do seem to blame “POL’s in-house lawyers” for interpreting the decision as vindicating Horizon when it did not. They defend Mr Dilley and Mr Morgan against criticism for their handling of disclosure and the case more broadly, urging the enquiry should be slow to criticise them. They say “any such decision to continue litigation rests with POL alone”. This is true, but Mr Morgan in particular was responsible for, indeed suggested, the strategy adopted to presenting the case. If the Post Office was wrong to treat Castleton as vindicating Horizon, what should also be pointed out is that the strategy developed by Mr Morgan show them the court would accept they could proceed to enforce Horizon shortfalls without the need for vindication. It's the difference between vindicating Horizon and bombproofing it. Castleton showed them that SPMs signing the accounts was enough so long as Post Office didn’t provide them with the evidence to challenge it. This is the Bates flat earth strategy in microcosm.
16. Keen Inquiry watchers will have seen the suggestion that Mandy Talbot was at the heart of a what, the submissions the Post Office admit was, “a much more coordinated understanding and approach to cases involving challenges to Horizon than had previously been understood….” Whilst they also state Talbert was “clearly a key part of POL’s approach, the strategy appears to have been led by more senior employees… Mr Smith, Mr Hulbert and Mr Baines.”
17. That admission is followed by this important claim:
“based on the evidence currently before the Inquiry it does not appear that these issues were raised at Board (or any executive group below Board level), but that will obviously be an issue of considerable importance in phase 5/6.”
18. There is a significant submission that Fujitsu kept PO in the dark about Horizon problems (para 86 onwards). It is said they clearly understood the limitations of Horizon data (ARQ data in particular) with evidence supporting the claim that Fujitsu kept their concerns in-house, in ways which impacted on their approach to draft witness statements (prepared by Penny Thomas and Andy Dunks) and with failure to identify fully and frankly problems with the unreliability of electronic point of sale code. Errors were said to be “endemic” and in 2008 occurring 35 times a week with over 1800 events known to have caused discrepancies which were downplayed. A change proposal document in 2008 acknowledged the problems and that they, “invalidated, ‘certain statements made within the current witness statement’” (para. 95). Post Office say there was no evidence that Fujitsu acted upon this concern. And that in 2009 rather than being told there was a “widespread and long-standing problem,” they were told there had been “an isolated occurrence” in 2007 with a financial imbalance corrected and the software correction made across the entire estate. This they describe as “a seriously misleading account” accepted by some of Fujitsu’s witnesses as such (para 96).
19. On remote access they continue the refrain that Fujitsu’s ability to do this emerged during the Bates trial. They concede that some individuals knew about remote access in 2004 and 2010 as well as possibly 2007. They do not avert to the fact that their then chairman was told in the Swift report (2016) that hidden remote access was possible and that Swift also told them that the Post Office had not been accurate in its communications about it (not to put too fine a point on it the implication may be they had been lying about it). They maintain the view that Paula Vennells was reassured in 2015 that remote access without the post masters knowledge was not possible. This is, to put it mildly, a surprising claim to make given the well-known analysis of this clause by Mr Justice Fraser in the Bates Trial (paras 520-526).
So in sum, the PO accepts quite a few important failures but not all. Sometimes they blame the courts, or the lawyers, or the (they would say reasonable, I would arch my eyebrow) standards of prosecutors generally, or the lower and middle- managers. Or Fujitsu. Or an unreasonable tarring of the their investigators and lawyers with too casual a brush of incompetence of impropriety. But they make a point of defending the Board, and some of the more senior lawyers (in private practice). That scene then is set for Phase 5 and 6 when we will be hearing more about them.