January 4 2024

In episode 1 of Mr Bates vs The Post Office, there is a scene in which Alan Bates’ wife tells him she has a job.

“Teaching?” he replies.

“No. Cleaning houses.”

They need the money to make ends meet. They have lost their savings and business.

He gives her a look – of love, gratitude & a hint of humiliation at what they’ve been reduced to and then – quietly but with determination – he says:

“I’ll get those bastards.”

It is a wonderful piece of writing and sublime, subtle acting, especially by Toby Jones. It captures both the humiliation inflicted on innocent people by the powerful and the former’s determination not to be ground down. It is about the subpostmasters. But like all good drama, including that based on real life, it shows something universal.

Those sentiments have been echoed before. They will, I am sorry to say, be repeated in the future. Because abuse of power is hard to eradicate. The powerful have no interest in doing so; the powerless find it hard to do so.

This abuse of power by the state or its organs has happened so many times before. This story about the Post Office is not an appalling one-off. It is only the latest of a series of scandals going back at least 60 years.

In so many ways, the misbehaviours exhibited by the Post Office are similar to those exhibited by the Coal Board in the Aberfan tragedy, by the police in Hillsborough, by the government in the blood contamination scandal and Windrush, by the NHS in numerous medical scandals, and in many others.

See https://www.cyclefree.co.uk/the-price-of-indifference/.

The substance may be different but the misbehaviours by the powerful are so very similar:

– the refusal to listen to concerns
– the lies and cover ups
– the stingy callous approach to apologies and compensation
– the refusal to accept responsibility
– the avoidance of accountability.

There are two behaviours above all which are repeated. The first is the arrogance of indispensability.

It is this which leads to the abuse of power which lies at the heart of the actions taken. The Post Office’s conduct over nearly two decades might best be described as a rampage of extortion with menaces, based on lies.

It is enabled by those who allow such organisations to behave as if they are unchallengeable. As if they are “Too Big To Fail” or “Too Important To Fail“.

It is abetted by such organisations being put by voters on a pedestal of some kind or trusted too blindly: the Post Office as a twinkly, trusted “Postman Pat-At-The-Heart-of-The-Community” who could not possibly do any wrong. Or the NHS. Or the police – who have often confused the vital importance of policing as a function with the importance themselves as an institution so making it much harder to challenge bad policing.

In this, these organisations have echoed the stance taken by much of the City in its pre-financial crash glory days, when it gave the impression that it was so lucrative and therefore indispensable that it could do whatever it wanted with little real regard for the rules. It was an attitude enabled by politicians so delighted at the large tax revenues that they ignored the dangers of the overmighty barons of that time.

And the second?

It is an indifference to ordinary people, to the human consequences of misbehaviour, to the impact on others.

This quote from the above article explains so much about the Post Office’s and government’s obduracy about putting this right.

“There is the indifference which can be one of the causes of a problem. But what is often worse is the indifference shown to victims after problems have arisen. It is hard to understand the callousness of some decisions. Perhaps it is made easier by forgetting or ignoring those who are affected.

It feels like indifference to those on the receiving end. But perhaps its impulse is less the effect on the victims but more a desire to save face by those responsible……

It harms an institution’s self-image and, often, of senior people within it. “We got it wrong.” is hard to say. If “we get it wrong” what sort of a “we” are we, really?”Avoiding the shame of having to admit that your actions or inactions have been responsible for the suffering of others is what drives this defensiveness and indifference.”

• You see this in the evidence given by Post Office staff in the Williams Inquiry.
• You see it in the evidence given by the Post Office’s internal and external lawyers.
• You see it in the response at Board level, which also manages to suggest that criticisms of its staff are somehow unacceptable and unfair and unkind, as if they were the true victims. The combination of arrogance and narcissism must be hard to bear for those who really have suffered.
• You see it in the response by the government. It gives the impression of being a random passer-by at the scene of accident caused by complete strangers ineffectually using a hankie to mop up blood and expecting huge thanks. In reality, it is the owner and funder of the Post Office and without its say-so and money the Post Office would cease to exist overnight.

What you also see in those other cases is how those responsible for harm done to others got away with it, were not made accountable, suffered no adverse consequences.

We are seeing that in this case too. Look at all the senior people in the period between 2000 – 2012 (when Paula Vennells was appointed CEO) when prosecutions were happening despite the knowledge that senior people in the Post Office, Fujitsu and government knew about Horizon’s difficulties and deficiencies. Look at how they have flourished in well paid jobs with their time in charge of an organisation at the heart of the worst miscarriage of justice in English history airbrushed away or ignored.

It feels as if this is more of the same: the powerful abusing the powerless. Because they can. Because they know they are untouchable. Because even if disciplinary or civil or criminal proceedings are brought, those Post Office prosecutors, investigators and lawyers, external lawyers and Fujitsu employees and others will benefit from the protections and rights and compliance with the rules and a fair trial which the Post Office denied the subpostmasters. We know why they should get those protections. But to those who have suffered as a result of their actions, it must feel like yet another unfairness to be added to those they’ve already endured, another example of how the powerful benefit at the expense of the powerless.

Will those who did wrong be held to account this time?

What about those others who set up the structures or took decisions or made laws which enabled this scandal to happen: the Ministers, the civil servants, the Law Commission, the MPs?

What sort of accountability should they face?

January 1 2024

This evening there is the first episode of a four part drama – Mr Bates vs The Post Office. It is a must see, if only in the hope that it will bring home to a wider public the scale and human impact of what has rightly been called the worst miscarriage of justice in English legal history. It is to be hoped that such public interest might put pressure on politicians to put right – and without further delay – matters which are – or should be – an affront to the conscience of the British state.

It is shaming to see from the evidence given during the statutory public inquiry headed by Sir Wyn Williams how so many from my own profession behaved so unprofessionally, incompetently and potentially worse, both during the events which are the subject of the Inquiry and during the Inquiry itself.

If there is one thing to learn from it, it should be a reminder that practising law or carrying out investigations without any understanding of the ethical underpinning of one’s work and the necessity of ensuring that this informs everything you do is wrong. This is not what true professionalism requires. The question is never “Can I do this?“. But “Should I?“.

It is correct to say that this is the worst miscarriage of justice. But this description underplays the nature of the scandal. In reality, this is not just a scandal about the Post Office exploiting some flawed accounting software.

• It is a scandal about the development of flawed hardware and software systems, a flawed governmental and corporate procurement process and a flawed adoption and rolling out process.
• It is a scandal about how the Post Office, a state owned body with unlimited resources and its own prosecution service, operated with no effective corporate governance or Ministerial control or supervision and exploited flawed software, flawed contracts and the civil and criminal legal systems to extort money it was not owed from subpostmasters.
• It is a scandal about how the legal system failed – and continues to fail – to understand technical evidence.
• It is a scandal about how the legal system has failed for far too long those accused and convicted of crimes which did not happen. As the government’s own Compensation Advisory Board has said: “the justice system itself is called into question in the current circumstances.”
• It is a scandal about a failure of Parliamentary and Ministerial governance.
• It is a scandal about how the state fails to put right its mistakes and compensate those harmed by those mistakes.

Ultimately, it is a story about the abuse of power.

There are so many aspects to it that it can be hard to get your head round all of it. But these articles are an attempt to summarise some of the key issues. A work-in-progress, obviously. But I hope helpful.

1. An overview

2. The Business Secretary’s role

3. Compensation

4. Revelations from the Williams Inquiry

5. Ministerial and corporate governance of the Post Offiice

6. The reliability of computer evidence and how the Law Commission got this wrong

7. What Parliament did and did not do

May 7 2023

Remember the De Lorean fiasco? To provide jobs in Northern Ireland, the then government paid the bouffant-haired car designer to set up his factory there. It collapsed a few years later amidst missing money and fraud. Arthur Andersen, the auditors, who admitted missing obvious fraud signs, were banned from government work and sued. It was only when Blair won that the ban on AA was lifted and a risible settlement agreed. (Doubtless entirely coincidentally, AA had provided free advice to Labour in opposition. A “scratch my back and I’ll scratch yours” approach to favours has never restricted itself to one party.)

Fast forward a quarter of a century. Fujitsu, whose Horizon accounting system used by the Post Office, was responsible for the largest miscarriage of justice in British history, has suffered no similar penalty. Indeed, no penalty at all. Far from it. It has been rewarded with more lucrative government contracts; it has not paid any compensation; no company official has been held responsible.

Why? Well, one answer is that AA’s failures harmed the government. Whereas Fujitsu and the Post Office only harmed some lowly sub-postmasters and mistresses. A cynical take. But an accurate one. The brutal reality is that being in public ownership or a public service does not automatically mean an organization behaves well. Worse, it often means that when it causes harm to others, its primary interest is to protect itself – even at the expense of those it has harmed. This is not new. See how the Aberfan families were treated in the decades after the loss of their children. Or the victims of the blood contamination scandal or many other NHS scandals or Windrush.

This story shows a state – and many of its key functions: the Post Office, owned by the state, the criminal justice system, run by the state, and the responsible Ministers and civil servants – to be malign, incompetent, indifferent to the damage caused, defensive and determined (behind all the paraphernalia of inquiries, reviews, assessments) to delay the allocation of responsibility, effective consequences for those responsible and proper, timely compensation for those harmed. It is no consolation – nor anything for the rest of us to be proud of – that some judges, some lawyers, a few persistent journalists and 1 MP – James Arbuthnot – have battled and are still battling to ensure justice.

There has been a book, a podcast, a heartbreaking Panorama documentary. The Times has written some scathing editorials. The inquiry grinds on, lawyers argue about different compensation schemes, the police investigation into possible perjury by Fujitsu personnel has been announced. But nothing seems to happen. Meanwhile yet more postmasters die – 59 so far. Is that the plan? To wait until everyone is dead, then quietly bury whatever report is produced while those responsible get away with it and carry on making money? Apparently so.

It is cruel. It adds a further injustice to the original one. It displays a contempt for the people who have suffered and are still suffering. It displays an indifference to the human consequences of people’s acts and omissions, something all too easy to forget amongst the mass of wrongdoing patiently unearthed by courts and inquiries. That cruelty consists in holding out the promise of compensation while making the process of getting it long, complicated and difficult. Meanwhile, those responsible, both for the injustice and the delays, suffer nothing, withhold evidence from the inquiry and/or, grotesquely, award themselves bonuses and lie about it. On its website the Post Office says it wants “to remain one of the most admired institutions in the public sector”. “Remain“? “Most admired“? Both delusional and arrogant.

Why has this scandal not been taken more seriously?

• The very diffuse nature of the tragedy over two decades. Lots of individual stories, all heartbreaking. But no one event or place to focus on. No image. No buried school or trapped fans in a football pen or burnt-out tower. No anniversary. So it is easy for it to fade away into a complicated background, something to do with accounting and IT and legal stuff. No-one is going to sing their heart out for that. No Royal is going to visit and lay flowers.
• Worse – this was not just the wrong people convicted of a crime. There was no crime.  It is hard to get your head round the fact that hundreds of people were investigated, tried and convicted for crimes that never happened. How can this possibly be?
• The people to whom this happened come from all backgrounds, all over the country, of all ages. It makes it worse but also means they have no obvious representative to speak for them, no-one to whom they – collectively – matter.
• No political party has taken up their cause. All the major parties had Ministers responsible for the Post Office who failed to ensure that it behaved competently and then, when the scandal erupted, failed to ensure that it was handled properly. So they hide behind their pathetic claims that they weren’t briefed or didn’t realise or delegated or assumed that others were doing their job and are shocked and appalled and oh dear … blah blah .. and very sorry etc.,. What is the point of these junior Ministers if all they can do is hand-wringing avoidance of responsibility?
• Far too many groups behaved badly. What makes this so hard to comprehend is the overwhelming scale. Look at all those responsible: Fujitsu, those who developed, oversaw and sold Horizon, Post Office management at all levels, internal investigators, in-house lawyers, external lawyers, IT staff, those knowing something was wrong but saying nothing, Ministers, civil servants advising them, prosecutors, the judges’ ruling that the computer evidence should be believed (one of the stupidest judicial rulings made). All these, through their actions and omissions, are responsible; many continue to be responsible for the delays in giving the victims adequate compensation while they are still alive. Easier to forget or not engage at all.

Among all these failings, two deserve very close scrutiny.

The lawyers

There were obvious problems with the Post Office being its own prosecutor, the confusion between the role of investigators and prosecutors, the failures of those investigators, a lack of clarity about the duties owed and to whom by the in-house lawyers, failures to make proper disclosure, withholding key evidence, failure to speak up, conflicts of interest for the lawyers advising on the compensation schemes, lack of honesty, failure to understand or challenge the accounting and technical evidence (a persistent problem for the legal system – see the Sally Clark case) and so on. Bluntly, the Post Office ruined innocent people by lying, manipulating and subverting for its own commercial advantage the English justice system. Its lawyers were central to that. Many of those involved should be ashamed of – and deserve censure for – their unprofessionalism and behaviour.

The approach to the technical (in this case, computer) evidence

There is a tendency (not confined to the Post Office) to believe there is one technological system which will provide the answer to a problem; and believe only what that technology tells you. Both are foolish, dangerous impulses. (A lesson for us on the cusp of a new technological revolution.) When combined with working back from your desired conclusion (“we’re going to find fraud with our shiny new toy”), miscarriages of justice are all but inevitable. (Something for Holyrood to consider before proceeding with its judge-only rape trial pilot designed to increase convictions.)

What now?

3 people: the PM, the Chancellor, the Business Secretary need to stop hiding behind endless inquiries and legal to-ing and fro-ing and make it a top priority to get compensation paid promptly.

• Those MPs trying to help their constituents need to badger them until they do.
• The inquiry into responsibility must be uncoupled from the assessment and payment of compensation.
• Fujitsu should be given no government contracts until they pay compensation.
• The Post Office’s senior management needs replacing by honest capable people. A public explanation is needed for why it awarded itself a bonus scheme for complying with an inquiry set up to investigate its own failings and why it lied about it in its public accounts.

Meanwhile, remember the words of Desmond Ackner QC, Counsel for the Aberfan families, to the official inquiry. They apply as easily to Horizon as to a slag heap.

This was a slow growing man-made menace, fed by the indifference of those who should never have permitted its existence. That is the horror of this disaster. There can be no more bitter reminder of the truth and wisdom of George Bernard Shaw’s condemnation –

“The worst sin towards our fellows is not to hate them. It is to be indifferent to them. For that is the essence of inhumanity.”

Photo by Kutan Ural on unsplash.com.