This is what whistleblowing looks like

January 12 2024

Why has no-one called  the subpostmasters whistleblowers?

My GRIP article here –

The victims of the UK Post Office scandal are whistleblowers – and should be recognised as such

The full article is below –

The UK Post Office subpostmasters have been called many things over the years:

  • thieves, crooks and fraudsters (often garnished with appalling racial epithets) by Post Office investigators and managers;
  • victims by those campaigning for them, including MPs;
  • heroes by some; and
  • the “skint little people” by the dramatist, Gwyneth Hughes, telling their story in the recent TV drama.

But the one thing they have not been called, surprisingly because this is what they indubitably were, is “whistleblowers”.

Why has no one called them this? They did not call themselves that. They did not send an email marked “Whistleblowing”. They did not refer to any internal policy or press a button on the corporate website marked “Making a Whistleblowing Report” (even assuming the Post Office had such a procedure).

They weren’t even Post Office employees. But the substance of what they did was to blow the whistle on a flawed accounting system. And, subsequently, on flawed, badly understood contracts (see the March 2019 Bates Common Issues judgment) and the behavior of its internal investigators and lawyers, whose conduct is currently being reviewed by the Williams Inquiry.

It is all too easy for organisations, focused on drafting whistleblowing procedures, to forget what whistleblowing is for.

It is the substance of the message which is what makes something a whistleblowing. Not the how of its communication or the status of the messenger. If someone is telling you that something is – or may be – wrong, then rather than worry about how to categorize them, or what legal arguments you can use to justify ignoring them, you need to listen, investigate and not go after the messenger.

It is the difference between taking a “tick-the-box / does this fit the procedure?” approach and understanding what the point of whistleblowing is and why it matters.

The Post Office did not treat the subpostmasters as whistleblowers because this would have required it to accept that there was something which needed investigating – and doing so properly. It would also have made it impossible for it to demand the money it wanted. But at some more fundamental level it simply did not recognise that this was what was happening.

This is not surprising. It is all too easy for organizations, focused on drafting whistleblowing or, as they are often now called, “Speak Up” procedures, on understanding the finer points of the latest EU Whistleblowing Directive, if they have operations within the EU, or regulatory requirements or the precise remit of the Public Interest Disclosure Act 1998 to forget what whistleblowing is for.

It is not meant to be an intellectual legal categorization exercise for employment lawyers or HR personnel. Too often it devolves into an assessment of whether an individual has brought themselves within scope of the relevant law and what legal arguments might be used against them to protect the organization from an employment claim and the payment of damages.

Nor is it meant to be another process or procedure to be proudly displayed to one’s regulator or talked about in the Annual Report, a token of how “transparent” and “compliant” the organisation likes to present itself as being.

One of the hardest things for organizations – especially large ones – to do is see what is really going on in their organization. Partly it is because there is so much information and, paradoxically, despite its quantity it can too often be silo’ed. But partly it is because the information collected or focused on is about what is going well: profits made, targets met, new customers, new contracts etc …

But what you also need to know is what is not going well: complaints, demands for information from regulators or other outside bodies, legal actions, internal investigations, disciplinaries, grievances, reasons for departures, system problems, faults, monitoring reports, whistleblowing claims and so on. All of these are signs that the organization’s health is not what it should be.

Whistleblowing reports do not always come neatly packaged as such. The person raising an issue may not even realise that that is what they are doing. They may only have part of the picture, or get some of it wrong, or not understand the implications. Or miss out key facts which can only be teased out when they are spoken to. They may do so for self-interested reasons.

But none of that really matters. A concern raised – in whatever context – is a warning that something is or may be going wrong. It is a chance to look at it properly before it becomes a crisis to be managed. It is something to be welcomed because it tells you something that you might not otherwise have spotted. Or it helps you connect seemingly random bits of information and understand what that tells you.

Who tells you and what their motives may be are less important than what they are telling you, certainly until you have investigated and established the facts in a robust and reliable manner.

What organizations need is the skill to realize that they are being given clues needing proper investigation. And the sense to realise that this – proper investigation and resolution of the concerns raised – is the point of having all these procedures, processes, policies, training, Whistleblowing Champions and the rest.

Those subpostmasters were whistleblowers. It is a mark of how poorly understood the importance and purpose of whistleblowing is that it has taken two decades after the first whistleblowing legislation, passed at around the same time the Horizon scandal started, ironically enough, for their concerns to start being properly understood and addressed.


Photo: author’s own.

A constitutional outrage? Or a resolution of sorts?

January 11 2024

The announcement of a law to overturn the subpostmasters’ convictions has provoked some concern amongst m’learned friends, on constitutional grounds. Are these concerns valid? Why is the government in this position?

The Dilemma

If every convicted subpostmaster in the last 25 years applied to the Criminal Cases Review Commission (“CCRC“) to have their convictions reviewed and referred to the Court of Appeal, even if they started tomorrow, it would taken an inordinately long time to deal with them (even if the Post Office did not object, which it has been doing for some). Many subpostmasters would likely die before their cases are heard; their lives would still be blighted in the meanwhile. They would have to wait for the convictions to be quashed before getting compensation. Some may simply refuse to get involved with the justice system. Who can blame them, given their experiences thus far.

There are other questions too. Who pays the costs? What about those who pleaded guilty because they were bullied into it? What about those who have died? Or those who paid money they did not owe in order to avoid prosecution? Do they get the money extorted from them under false pretences repaid?

This matter has lasted a quarter of a century. It is unconscionable to drag it out still longer. Speed is essential if justice is to be done. And it is justice which is needed now – not endless legal arguments.

Could there be a mass appeal via the normal legal process? Possibly. But would it be any quicker? Where are the resources to do it?


The main concern has been the worry about setting a precedent: the executive and legislature should not interfere with the judicial process. If these convictions are overturned by Parliamentary fiat, what is to stop a future unscrupulous PM using a large Parliamentary majority to absolve friends rightly convicted? The boundaries between the executive, legislature and judiciary are important ones. It is not daft to worry about a rush to breach them. They exist for good reasons.


The legal system

A touch of humility from the legal fraternity is needed. More than a touch, in fact. This miscarriage is in large part due to multiple failings over years by lawyers and the legal process, starting with the Law Commission (which recommended the computer law change – explained here and here),via investigators, in-house prosecutors, members of the external Bar, defence lawyers, judges, those supervising or reviewing or even noticing the activities of those bodies with statutory prosecution powers (was anyone doing this? A question for the Ministry of Justice, perhaps), the CPS (to the extent it was involved), the lawyers responsible for non-disclosure, those who failed to blow the whistle (in breach of their professional duties and those owed to the courts), those advising the Post Office’s Board on its corporate law obligations, those relating to prosecutions and civil litigation and those owed to the Williams Inquiry and ending with the judiciary which did nothing about a senior retired Law Lord advising on how to get rid of the judge hearing the Bates litigation for no reason other than the Post Office’s annoyance at not getting its own way.

The legal system does not come out of this story well, however much praise is now due to those lawyers who have worked tirelessly to expose the scandal and help its victims. It is, frankly, a bit much for it to ignore all this in the rush to preserve constitutional proprieties. Doing right is what is needed now, followed by extensive reflection on its own part in this abysmal affair.

How might this be done?

It is not correct to say that there is no Parliamentary interference with the judicial process. The Attorney-General has always had the power to discontinue a prosecution in the public interest – nolle prosequi – and, in exercising this power, is answerable to Parliament not the courts. It is true that this power is only exercised before a court judgement. After, the normal route is an appeal against conviction or, exceptionally, a pardon. But note one important fact about these options: in both, a crime has been committed. But it is decided that either the wrong person has been convicted or that, for reasons of public policy, even though they had committed it, the law was unjust (e.g. pardons of soldiers for cowardice in war-time or gay men for now lawful sexual behaviour). There was a crime though.

No prima facie case

Here, we cannot say this. This is not overturning convictions because the wrong people were convicted. But because there never was any crime. There never was any money missing. The alleged “missing” monies were figures plucked out of Horizon’s behind. If this had been known at the time, would there have been prosecutions? Could there properly have been any? Wouldn’t the A-G have issued a nolle prosequi order, if the prosecutions had not been halted by the Post Office? In effect, what is being proposed now is a retrospective nolle prosequi, a finding that the prosecutions were, as the Court of Appeal has already ruled, an affront to the conscience of the court. They should never have happened because there never were any crimes to be prosecuted (as some of the Post Office’s own documents revealed to the Williams Inquiry now show). As for those prosecuted on non-Horizon evidence, based on what the Inquiry has uncovered about the conduct of Post Office investigative/prosecuting staff, no reliance can be placed on any of their work.

Why this option?

For years the criminal justice system has been underfunded. Plenty have warned of the consequences; these have been dismissed as special pleading, alarmist or unimportant. The CCRC was seen as so unimportant that it has a part-time Chair with eight other jobs, including Head of the Judicial Appointments Commission (the CCRC’s conflicts of interest policy having been lost in the post, presumably). It is why, when the Andy Malkinson case – itself one of the most serious miscarriages of justice of recent times, involving as it does, the conduct and professionalism of the CCRC itself – hit the news last summer, we were treated to the spectacle of its Chair promoting her holiday home business in Montenegro.

We see the result of this under-resourcing now: an inability to follow normal processes in a timely way; unpalatable options.

Why the rush to act? Why – because of the endless delays and denials by government and its wholly owned entity, the Post Office, only finally shamed into action by a TV drama and the consequent public outrage.

Underinvestment, a lack of professionalism, denial and delays. There are some lessons in there for governments. And the legal world. Perhaps they might heed them this time. Perhaps.


Photo by Tingey Injury Law Firm on Unsplash

Garbage In, Garbage Out

January 10 2024


Foolish to believe that computers and their software are infallible. Even more foolish to change the presumption as the Law Commission recommended some 25 years ago. That change must now be reversed, as I argue here –


Law on computer evidence must change in wake of UK Post Office Horizon scandal

The full article is below –

One of the less appreciated aspects of the UK Post Office Horizon scandal is that it was made possible by a legal change in 1999 on the admissibility of computer evidence. That change was made following a flawed Law Commission analysis which showed two things:


  • how poorly lawyers understand technical evidence, especially software and digital evidence generally;
  • the arrogance of those who do not know what they do not know.

It was an ignorant arrogance not confined to the Law Commission. Its recommendation effectively reversed the burden of proof and made it practically impossible for a defendant to prove that computer-based evidence was not accurate. There was simply no understanding of how complex computer systems operate nor the importance of their reliability.

MPs who passed the relevant law treated this change with a frivolity which would be mildly amusing were it not for its baleful consequences. They made the mistake of thinking that because computer technology had become more complicated, thus making it more difficult to prove reliability, the answer was not to bother at all because this would be “impractical”.

The idea that it was precisely this complexity which made it imperative to find a way of ensuring and proving that it could be relied on did not – apparently – occur to them.

The relevant Minister, Paul Boateng (a solicitor) treated it as a trivial change, commenting about eight-year-old children being the only ones to understand computers. There was simply no understanding of how complex computer systems operate nor the importance of their reliability nor the vital necessity for a whole range of people and groups to be able to rely on and trust their reliability.

That was then. Now – more than two decades later with the knowledge of the Post Office Horizon scandal (and others) arising because of this change – is the government going to look at this again?

No. In 2022 the Justice Ministry said there were no plans to review this (despite in 2020 a paper having been prepared by lawyers and IT professionals setting out some detailed proposals as to how the law on computer evidence might be reformed). Having a law which is at odds with how society works today, which has the potential for prejudicial consequences and which undermines the trust essential to the working world is absurd.

Why? The relevant Minister has stated that the presumption that what a computer says is accurate “has wide application”. This is to repeat the error made in 1999. Then it was “impractical” to expect people to prove their evidence was reliable because this was too difficult. Now it is too much effort to review it because it is used so widely so it is again too difficult.

But it is precisely because it has wide application that it is imperative that the law catches up with the world as it is now, that it be based on a proper understanding of IT. We are in a digital world which is only going to become more so. Laws which do not reflect that and which are based on ignorance (or laziness) are unpardonable.

This not an issue which only matters when someone is prosecuted. The reliability of computers matters to customers: of banks, insurance companies, pension companies, investment firms. It matters to every one operating in the financial sector. It matters in relation to monitoring. It matters in relation to disclosure and discovery. It matters to customers of entities in a wide range of sectors. It matters to regulators of entities in a wide range of sectors. It matters to patients. It is hard to think of any commercial sector or activity where it does not matter. This is only going to become more important with the increasing use of AI.

If the law says that you don’t need to prove that your systems are working properly, in a court battle, this risks undermining the need to do so, rather than reinforcing it. If your customers and counterparties assume that your systems are reliable and they turn out not to be, how will they react on being told that, too bad, the law says they are and it is up to them to prove otherwise?

Having a law which is at odds with how society works today, which has the potential for prejudicial consequences and which undermines the trust essential to the working world is absurd. And will become absurder still as AI technology and its use expand.

Directors of companies have a duty to “promote the success of the company”. Directors of regulated companies have additional duties, particularly in relation to the technology and systems they use and the information which is captured, stored and derived from them. They need to be able to show their regulators – and other stakeholders – that their systems work effectively, are reliable and that the information coming from them can be trusted.

The government needs to look at this again. And this time involve and listen to IT professionals and others who really understand how computer systems work and how they can go wrong. It could do with listening to those who understand the consequences of such failing.

Fortunately, this time the Law Commission is led by someone who certainly does understand this. Mr Justice Fraser was the judge who decided the Bates vs The Post Office litigation which blew this scandal open. He was less than impressed with the Post Office’s factual statements about Horizon. He is now the new Chair of the Law Commission. Time for the government to stop finding excuses for inaction.


Photo by Markus Spiske on Unsplash