Analysis: The Post Office scandal is not over yet

The Post Office scandal involves miscarriages of justice involving hundreds of innocent people who were wrongly convicted of theft, fraud and false accounting. It has been going on for over 20 years, with the Post Office accused of a cover up after it repeatedly failed to disclose key evidence.

The Post Office Horizon IT Inquiry and court cases have heard that at least 60 subpostmasters have died without seeing justice or compensation, and at least four took their own lives.

We are now conducting a three-year study, funded by the Economic and Social Research Council, to examine the role of lawyers in the scandal, explore the subpostmasters’ experience of the criminal justice system, and to determine what implications the scandal has for lawyers’ ethics and the legal sector more widely.

So how did the scandal start, and why is it taking so long for the victims to get justice?

Horizon
In 2000, the Post Office introduced the Horizon IT system across its network of franchises and branches. Horizon flagged accounting shortfalls, indicating that money was missing. The Post Office used Horizon evidence to take punitive action against subpostmasters and employees, including suspensions, termination of contracts and criminal prosecutions.

But reliance on Horizon was misplaced as shortfalls were often caused by errors and bugs in the system. As problems with Horizon began to emerge, rather than admit them, the Post Office defended its IT system, doubling down and holding the line that Horizon was “robust”.

Over many years, the Post Office, aided by its lawyers, engaged in what looks like a cover-up due to repeatedly failing to disclose what they knew about problems with Horizon across a number of court cases. Hundreds of innocent people lost their livelihoods, their homes and some were imprisoned as a result.

Requests for information about the reliability of Horizon by subpostmasters facing criminal prosecution were denied by Post Office lawyers. Evidence that should have been disclosed in criminal proceedings was not disclosed.

Unable to get evidence to help them, subpostmasters were often advised by their own lawyers to plead guilty to lesser charges (such as, false accounting rather than theft) to escape a prison sentence.

Sometimes, this strategy was successful and sometimes not. There are many harrowing stories of the devastating impact of prosecutions and the sanctions that followed on innocent men and women who felt they had no choice but to plead guilty to something they had not done.

Disclosure failings
In April 2021, 39 former subpostmasters had their convictions quashed at the Court of Appeal. The court concluded that the Post Office should not have prosecuted them in the first place and found the Post Office’s conduct “an affront to the conscience of the court”. Such comments by the Court of Appeal are damning and rare.

The Court of Appeal’s judgment in 2021 built on findings in a High Court case in 2019, where the failings of Horizon were exposed. The judge in that case also found the defence by the Post Office to be aggressive, excessive, misleading, and otherwise unsatisfactory.

It included an application to unseat the presiding judge, whom the Post Office considered was biased. Even in those High Court proceedings, the Post Office failed to disclose critical information about the problems with Horizon.

A number of internal reviews clearly showed that Horizon was flawed and yet this information was either ignored or suppressed. A legal opinion from lawyer Simon Clarke from 2013 criticising the reliability of a key witness used in the Post Office’s prosecutions, only came to light in 2020 during the criminal appeals. Clarke was a barrister working for the main solicitors firm paid to prosecute subpostmasters. In spite of the concerns it raised, his advice led to surprisingly little evidence being disclosed.

The Post Office’s dogged stance that “all was well” with Horizon was used to cover up an ever-increasing volume of evidence that all was far from well. Disclosure failings persisted throughout the criminal prosecutions, during the High Court case and during the criminal appeals.

And the scandal isn’t over yet.

Recent developments at the long fought-for Post Office Horizon IT inquiry reveal the Post Office’s ongoing difficulties with disclosure. The inquiry was established to examine the implementation and operation of Horizon.

Inquiry Chair, Sir Wynn Williams, has recently referred to the Post Office’s “grossly unsatisfactory disclosure failings”, and further requests for documents from the Post Office will now be made under threat of criminal sanction for non-compliance.

A Freedom of Information request by campaigner Eleanor Shaikh in May unearthed a Post Office document which used offensive and racist terms to categorise subpostmasters under investigation. The document had not been given to the inquiry, despite its obvious importance.

Meanwhile, the Post Office’s late filing of over 4,000 documents, the evening before Gareth Jenkins was due to give evidence to the inquiry, led to the proceedings being adjourned. Jenkins is a Fujitsu engineer whose role in the prosecutions and civil litigation will be under intense scrutiny for failing to disclose Horizon technical failures to the courts. Hearings in phase four of the inquiry are now set to continue in September.

The Post Office has been at pains to say that it is intent on “righting the wrongs”. They have a long way to go to do this. Disclosure failings continue and the provision of compensation to subpostmasters has been unduly slow. Progress on appeals is also painfully inadequate.

Links

• Article in The Conversation
• Dr Karen Nokes’s academic profile
• UCL Laws

Image

• Credit: iStock / alice-photo