May 19 2024

This week, according to this report in the Sunday Times, the government will finally announce payment of compensation to the victims and their families of the blood contamination scandal. The scandal started in the 1970’s. Three-quarters of the victims are dead. No-one has been held accountable. Other countries facing the same issue have managed to pay compensation and hold some of those responsible accountable. Inordinate delays after scandals seem to be an example of British exceptionalism at its worst. Given the glacial progress of the British state when it comes to acknowledging, let alone remedying its failures, the subpostmasters can – presumably – expect proper compensation sometime in the 2050’s.

The report by retired judge, Sir Brian Langstaff, will detail the how’s and why’s in excruciating and painful detail. We can add this report to many similar others about the NHS. Take these, for example:

– the Francis Report into the Mid-Staffordshire Trust.

– Northwick Park Hospital: 2 inquiries into maternal deaths 2002 – 2005, then baby deaths. Its maternity unit was described in 2020 as “a risk to patient safety“.

– Morecambe Bay: deaths of babies in its maternity unit between 2004 – 2013. James Titcombe, whose son, Joshua, died because of inadequate care, is the Alan Bates of this scandal, having campaigned tirelessly since on patient safety.

– Shrewsbury and Telford: a 2017 inquiry described care so poor that 15 women and 40 babies died.

– East Kent Hospitals: serial failings here – a damning 2016 inquiry leading to 23 recommendations, only 2 of which were implemented; 24 maternity investigations from 2018 onwards; a prosecution in 2021 for serious failures in care leading to the death of a week old baby. Over a 4-year period 130 babies suffered brain damage as a result of poor birth care.

– Nottingham University Trust: between 2010 – 2020 babies suffered brain damage or still births; mothers and babies died with the unit described as “chaotic” and “dangerous“. An independent review has been established.

– And, finally, an All Party Parliamentary Report on Birth Trauma, published last week, stated that good care for pregnant women “is the exception rather than the rule“. Remarkably, this report was not the lead story in newspapers.

Columns will be written about how it is that such negligence, malpractice, cruelty and indifference can happen in a seemingly civilised society in the late 20th and early 21st century. It is the right question but put the wrong way round. Why wouldn’t these behaviours be found among people who consider themselves professional and civilised?

As CS Lewis put it:

“The greatest evil is not now done in those “sordid dens of crime” that Dickens loved to paint. It is not done even in concentration camps and labour camps. In those we see its final result. But it is conceived and ordered (moved, seconded, carried and minuted) in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice.”

It is easy to be cruel to someone when they are only a name on a document, simply the object of a process.

We can see the truth of this every day in the Post Office Inquiry. The only change to C S Lewis’s aperçu is that women have shown themselves to be quite as capable as men of these failings. Jane McLeod, the former General Counsel at the time of the Bates litigation, which blew open the whole scandal despite the Post Office’s expensive and extensive efforts to suppress it, has added cowardice to the list of misbehaviours highly trained, well-remunerated professionals (with a Code of Conduct whose spirit they are meant to follow) are capable of.

There are common themes which are found in all such scandals, whether in the NHS or the Post Office or any organisation you care to name: organisations and managers who find it hard to take criticism or learn lessons or listen to whistleblowers, who become obstinately wedded to one view, regardless of the evidence and who become defensive when challenged, whether from arrogance or a belief that because their purpose is noble, so must the practice be. Add to this, indifference to the human beings the organisation deals with – often seen as a nuisance, unjustified grumblers, on the make or simply obstacles to be processed and got out of the way.

Alisdair Cameron, the Post Office’s CFO, described this attitude well in a November 2020 document entitled “What Went Wrong”. He added:

“We should have been tackling these issues 10 years ago.”

This is a statement which can be safely said to apply to pretty much every scandal you’ve ever heard of, those you haven’t and those yet to come.

Theresa May, who set up the blood contamination inquiry in 2017, said this:

“I think what you get is a sense that it is more important to maintain the institution as a blameless institution than it is to accept a mistake and to look for the truth, the justice and accept the mistake. And the problem is, of course, with that it means that when the truth does come out, the institution looks even worse.”

Quite. Sir Wyn Williams could do no worse than use that as the opening paragraph of his report, when he finally comes to write it.

Photo by Hush Naidoo Jade Photography on Unsplash

April 10 2024

Scandals and misconduct do not come out of nowhere. When people misbehave there is usually a clue, often more than one, usually ignored (even if carefully collected and correctly filed) or hand-waved away as unimportant (see the Angiolini Report on Wayne Couzens, for instance). The same applies to scandals involving organisations and actions (or a lack of action) by many people. There were warnings; there were whistleblowers; people were told. Coupled with this is a failure to take this information seriously, a failure to investigate properly or at all, a determination to ignore evidence and, often, a decision to remove, ignore or badmouth those raising concerns. Out of these two ingredients are our scandals made.

This is the case in the Post Office scandal and – this is critical – very much earlier than 2013 when the independent investigators, Second Sight, were telling senior managers some uncomfortable truths. The understandable focus on this period is making us forget there were explicit warnings of the issues much earlier on – and to people right at the top of the Post Office. This became clear from Alan Bates’ evidence yesterday at the Williams Inquiry (during the morning hearing – here – from about 1 hour in until 1:52).

Two key pieces of evidence came out.

The Letter

The first was a letter he sent in August 2003 to the then Chair of the Royal Mail, Allan Leighton. (The Post Office was still part of Royal Mail.) Mr Bates’s contract had been terminated following extensive correspondence with managers from 2000 onwards in which he pointed out that “the Horizon system cannot be relied upon to give 100% accurate figures” (a letter dated 19 December 2000), he could not check the data being produced by Horizon (nor seemingly could anyone else) and therefore could not be legally held liable for so-called shortfalls if the transaction data in Horizon could not be checked and verified. He also says that he was not the only one facing problems. In that correspondence, copied to the Chair, he described – in essence – the two problems which are at the heart of the scandal:

(1) Horizon data was unreliable; and

(2) the Post Office did not properly understand its own contracts with subpostmasters. It acted as if all losses were the responsibility of the subpostmasters whereas in fact it was only ones caused by their negligence, carelessness or error. This faulty understanding lay behind the decisions to prosecute or bankrupt some subpostmasters, such as Lee Castleton.

It was Mr Justice Fraser’s judgment in the Bates litigation in 2019 which spelt out how right Alan Bates had been: Horizon was unreliable and the Post Office’s understanding of its own contracts was wrong. It should not have taken 16 years, two exceptionally long, detailed judgments and endless, ruinously expensive litigation for this to be established. Allan Leighton was alerted to these issues in 2003: a full decade before the Second Sight investigation. Various Post Office managers from 2000 onwards had also been told repeatedly of both the Horizon problems and the contractual issues but had never addressed them.

Why did Mr Bates contact the Chair? In his own words:

“I thought it was well worth trying to write to the Chairman to make him aware of what was going on because he may well have not known…..hoping that he might be able to undertake some sort of review into it and look into the case for us and take it on board a little more seriously.“

“I can’t force them to read it but if you don’t write to them then they’ll never know.“

Allan Leighton could not have been expected to look into these matters himself. But there should have been a proper investigation into what Mr Bates was saying. There wasn’t. The inadequacy of the response makes this clear. It was simply a justification of the decision taken, a polite “we’re right, you’re wrong; no we’re not going to explain anything or answer your questions.” brush-off. In part, this was because there was no proper investigations team within Royal Mail. What was called that was in reality a debt recovery team. It had neither the authority, capability, willingness or independence of mind to investigate concerns or complaints to the organisation.

It is worth noting that when asked why he thought his contract had been terminated Mr Bates said:

“They didn’t like me standing up to them, in the first instance; they were finding it awkward; and I don’t think they could answer these questions. I think they had a feeling I was going to carry on in a similar vein going forward.“

His answer summarises succinctly why whistleblowers are mistreated by organisations, why challenge is so unwelcome and why an investigation, so that you can answer the questions put to you, is so essential. Any person, any organisation, any sort of body or ideology unwilling to be challenged is a red flag, a sign of a poor culture and one well on its way to becoming a toxic and, often, a dangerous one.

The Loss Authorisation Form

Mr Bates had rolled over in a suspense account the shortfalls he could not explain. After 2 years, the Post Office wrote this sum off using a Loss Authorization Form which stated that the loss “was attributable to Horizon system/software/equipment/training failure.” It was a standard template, a document which came to light in disclosure. By 2002 the Post Office had in place a form – and procedure – for writing off sums attributable to a variety of causes, one of which was the “Horizon system“. Yet it continued to claim that Horizon was “robust” etc., (what does “robust” even mean here?) even while it had recognized from an early stage that losses might be caused by it and be written off. Look not at what organisations say but at what they do – especially when they think no-one is looking.

Had there been any sort of proper investigation into what Mr Bates had been saying, had his letter to the Chair been taken seriously – as should have happened – the scandal would very likely never have happened, or not to the extent it has.

The majority of the miscarriages of justice happened long before Ms Vennells became CEO and for a long time after Allan Leighton had been informed of the problems.

As Jason Beer KC said, in August 2003:

“many people had yet to be terminated, many people were yet to be prosecuted, many people were yet to be convicted and many people were yet to go to prison.”

When you strip away the reports, the millions of documents, the interviews, the evidence, the court cases and judgments, the lawyers, the documentaries, the dramas, remember this. At the heart of all these scandals – whether in the police, the post office, the NHS, childrens’ homes or elsewhere – are people (often some of the most vulnerable) whose lives have been ruined, people who have been harmed, people who have suffered and whose suffering could and should have been stopped if only those who had the power and the responsibility to do so had paid attention to the clues waved under their noses and acted. This failure to do so and the accompanying lies – by so many bodies from government down – has degraded trust in our public and private institutions. There is still far too much resistance and denial by those responsible for the problems. It will be quite the effort to rebuild that trust. There is little sign that the scale of the task or its overriding necessity are fully understood.

Photo by Alexander Lyashkov on Unsplash