What Reputation?
April 26 2024
In which inquiry into which institution (and, for a bonus point, when) were the following failings reported?
– warnings or concerns raised by junior staff were ignored or hidden away
– senior staff and colleagues were aware but turned a blind eye
– complainants, both internal and external, were treated as troublemakers
– a tendency to close ranks against those raising concerns
– missed opportunities: all too many moments when something could have been said, should have been said but was left unsaid
– retaliation (or threats of it) against staff
– a culture of deference: both to senior staff and to the institution
– viewing the protection of the institution’s perceived reputation as more important than dealing with its failings.
No: not the Post Office Inquiry – though all these factors, and plenty more – outright lying (by omission, at the very least), a veritable epidemic of amnesia, an inability to read or understand any sort of written document and a quite remarkable failure to understand that work in a paid job involves actually doing things, ideally useful ones – could, on the evidence of the last fortnight, be added to the list.
No – all these were the findings of an inquiry into the Gosport War Memorial Hospital in 2018 where over very many years 450 patients had their lives shortened because of the unjustified actions of clinical staff. It is a reminder that such behaviour is not a one-off, not confined to any one atrociously run institution.
That affair had something else in common with the Post Office matter. 12 different sorts of investigations over 27 years failed to uncover the full facts or lead to effective action. How can this be? Well, different bodies with different agendas, powers, without access to all the information and sometimes lacking the relevant skillset do not result in the ideal investigative set up.
But in truth, institutions do not always really want to know about their failings. Such investigations, reviews, audits and reports are often designed to create the impression of feverish activity while uncovering nothing and giving the desired – but usually false – reassurance. So it was with Gosport Hospital – and so it was with the Post Office.
And so it has been in pretty much every other scandal, failing or other disaster: whether it is at a Boeing, a police force (too many to mention), NHS trusts (again too many to mention), charity, government department or any of the bodies where serious problems have been uncovered. The same problems, the same human failings recur in very different organisations and sectors. They recur in how mistakes happen or problems arise and, crucially, in how such organisations and those working in them respond to such mistakes and problems when they do happen.
Not if. When. Things do go wrong. But this is rarely the reason scandals happen. They happen because of how those organisations, their leaders, staff working in them and those advising them behave in response to failure, problems and mistakes.
Of all the WTF moments at the Post Office Inquiry in recent days, the revelation that the Post Office’s response to the suicide of a subpostmaster (Martin Griffiths, under stress because of discrepancies he blamed on Horizon and after having been made to repay money stolen by robbers who beat him up) was to appoint a media lawyer to advise it as he lay dying in hospital and then to “drip feed” compensation payments to his widow to buy her silence is one of the worst. The cynicism, the exploitation of grief and weakness, the bullying, the determination to avoid scrutiny, to prevent the facts – even when a tragedy happens – coming out are bad enough. That this was done by senior executives with the help and advice of professionals, none of whom seem ever to have asked themselves whether what they were doing was right makes it infinitely worse.
One of the key executives involved – Angela Van Den Bogerd – gave evidence at the 2019 “Common Issues” trial in the Bates litigation. Mr Justice Fraser said of her that she had sought to mislead him and, in future, he would only accept evidence from her if it was “clearly and incontrovertibly corroborated by contemporaneous documents“. This is the judicial equivalent of “Liar, liar, Pants on fire.” There was no investigation by the Post Office into her conduct following that trial, no adverse effects for her at all. On the contrary, she received a bonus for her work.
Organisations and professionals behaving like this show us who and what they really are. They have no reputation worth preserving.
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
