Thread by @nickwallis

TM there is little evidence of any investigation into Horizon in many of these cases - they had no meaningful way of defending themselves which caused unmitigated prejudice. We say there is no reason for the court to doubt those concessions [by the PO].
[TM turns to G2]

TM the PO concedes in 39 cases there was abuse of process. in the context where the respondent [PO] concedes they could not have a fair trail. Some saw their marriages break up, some suffered bankruptcy and some are dead having gone to their graves with their previous...

… convictions extant.

There has been extensive damage to these people of previous good character caused by unfair recovery of alleged debt and unfair trials on behalf of the respoindent to assess or address the defects in that software and the implication for so many...

… blameless individuals.

5 points

1. unfair recovery of money
2. failure to investigate Horizon
3. failure to disclose what was known about H’s inadequacies
4. improper conditions placed on plea deals because they absolved H from responsibility cannot be divorced from....

… point 2 and 3
5. collatoral motives of the prosecution

TM we say the approach of the PO was unitary. The “business” was more important than justice [I PARAPHRASE!!!]

TM when the first signs of H reliability emerged. There were concerns about legacy Horizon - we put before the court recently disclosed minutes of board minutes from 1999 and 2000 as legacy H was being rolled out. They’ve only just come to light so they’re not in the bundle.

It’s six pages long. Let’s start with PO Board meeting 20 July 1999 - those minutes towards the top of the second page there is a description of the incidents occurring with legacy H in prep for its rollout across the branches. Schedulled for 23 Aug 1999. Acceptance needed by...

… 18 Aug 1999.

One incident in the high category and 29 medium category which stopped the acceptance.

"Members were concerned that a number of technical issues remained unresolved… these are critical issues"

Then we have board meeting from 14 Sep 1999. We see that when the board met in July the H prog director was

unforunately 3 high profile incidents - training, lock ups and screen fixes and quality of data recording had not been resolved.

In September it is noted that training had been sorted, but technical issues and data integrity had not.

We go to December where there are 3 high severity problems and 20+ medium severity.

On 30 Nov 1999 the CEO reported “traffic light has turned to amber for this milestone…"

Then in Jan 2000 - the rollout of H is due to commence on 24 Jan - but system stability, accounting integrity and provision of support to offices. Still a problem, but will not prevent rollout.

So it’s plain from the very outset there were difficulties with the integrity of H...

…. which went to the highest level of governance within the Post Office

LJH we note it says “recommence’ in these minutes. Has H already been part rolled out by this stage?

TM yes.

TM we see a replication of these difficulties when the PO adopts Horizon online. [I am going to call legacy horizon lH and Horizon Online Ho]

Justice Picken - this wasn’t disclosed in the civil litigation

TM it seems not my lord.

TM we say this is not a situation where SPMS reporting accounting difficulties were a dawning realisation for the PO, tehy were on notice at the highest levels about accounting problems BEFORE it was rolled out. Far from recognising SPMs might be genuine about problems with H

TM what this institution did, what this business did was that it chose to disblieve the complaints of SPMs of previous good character. it demanded they repay every penny of the apparent shortfalls with the threat of prosecution and on many cases even repaying did not stop...

… a prosecution.

TM can we move to the relationship between G1 and G2 - both legally and factually, and a disctinction.

The distinction between a fair trial abuse [he goes to case law…]

Whilst the two grounds can be considred objectively, the overlap is countenanced [he goes into more case law]

These are not regular proceedings - we say there is a close relationship between those that underpin limb 1 and those that underpin limb 2 - there shouldn’t be an artificial distinction which found a concession on ground 1 and ground 2. So now on to why enforcement of unfair...

… contract terms is within the purview of this court. The prosecutorial decision taken by the CPS, but when the prosecutor is also the complainant pursuing civil recovery as well as criminal prosecution a distinction is entirely inappropriate.

[essentially flying blind here as of course we dont’ get sight of the arguments being made on paper, but it seems that TM is making the argument for the G2 arguments to arguable atmo rather than the substance of them]

[the argument appears to be necessary because the PO might be trying to make a distinction between its prosecution and its business interest, which TM is not having - quoting an email from Jarnail Singh (a PO prosecutor) who links the business and public interest in a decision...

… not to pursue a prosecution]

TM takes us to PO board meeting minutes from 12 Jan 2012 re media interest in the Po story and SPM challenges to the integrity of H.

He reads: "The business has also won every criminal prosecution in which it has used evidence based on H systems integrity”

TM the PO assumed the SPM was responsible for each shortfall and then sought to recover or prosecute on that basis and that much was found by Fraser J...

… in 462 of Common Issues judgment:

here you go: bailii.org/ew/cases/EWHC/…

Also quotes 566 of the judgment - there is no separate mechanism established at any stage for dispute - unless the Post Office can find the day and time when a fault occured the Post office will not provide assistance.

TM that’s the practical manifestation of that attitude.

TM it’s an enduring, pervasive and unjustified approach from the respondent to fault.
This correctly outlines the PO’s approach from the introduction of H onwards.
It was for the SPM to prove it was H or it was their fault. That approach infected each and every stage of the...

… prosecutorial process [he goes to case law]

Justice Farbey asks if there’s a pincer effect - you’ve got civil contract and criminal procedure and the business is front and centre of that effect
TM yes and the same attitude goes through all the operation of the business which is a resitatnce to the idea that H may...

… be to blame for the problems in post offices we were seeing all over the country

LJH does POL or whatever it may be still conduct its own prosecutions

TM no my lord

LJH I suspected that may be the case.

[They largely stopped in 2014. I reported government’s confirmation to parliament that PO had no more intention of prosecuting anyone again last year: postofficetrial.com/2020/06/the-ho…]

TM has gone back to Fraser J judgment where he notes a Royal Mail engineer confirmed a phantom transaction in 2001 after making site visits to witness them for themselves. Fujitsu noted this happened in 2000 and notes his surprise at Angela van den Bogerd (post office witness)

… was not shown this important fault before she gave evidence.

[it’s in the H issues judgment - paragraph 209 - judgment here: bailii.org/ew/cases/EWHC/… Fraser J says this is v v important]

[and v surprising that AvdB professed no knowledge of it]

TM going on to point out that Fraser J notes Fujitsu refused to countenance anything other than user error.

TM we say Fraser J was right and the Fujitsu conclusion, as Fraser J rules was wholly wrong.

TM making the point how early this error came up, how Fujtisu;s conclusion is extraordinary as is the PO’s acceptabce of it without further investigation

“It had commission this software programme and it wasn’t fit for purpose."

TM the lives of SPMs were irreperably ruined, some took their own lives and still the PO refused to undertake an independent investigation as we see from the board minutes in 2010.

Justice Picken asking if prosecutions jumped after H came in. TM saying they did. JP asking if he is making that point. TM says yes it is in their submissions.

LJH you are saying the SPMs aren’t simply of good character, they are peopl the PO has chosed itself to represent it.

LJH we lock our doors when we go out to stop possible thieves come in, but it’s very odd for an organisation to put people in a position of trust and then lose that trust en masse

TM Yes. [he rturns to his theme] Far from choosing to convene an independent invesitgation...

… the PO report (internally) in 2010 that any investigation would need to be revealed to the courts and that would require all prosecutions to be stopped. investigations into H were therefore stopped.
TM we say that is shameful and culpable.

TM the PO refused to beleive what was self-evident - that H was faulty, therefore they had to beliece that all the SPMs wereguilty, despite having all the evidence before them.
TM in 2013 an internal PO email from an SPM reporting a phantom cheque - threatening to go to his MP...

… wondering what to do. Andrew Winn from the PO responded saying the claim could not be investigated “my instinct is we have enough on”
[this came up in the civil litigation too - but TM is flagging that Andy Winn was also involved in criminal trials]

TM they have a blief in H which they refuse to be shifted on, despite all the evidence and so the conclusion is it must be the fault of the SPM.
TM what Fraser J says in the H issues judgment is where he analyses the PO’s motivation in these issues...

… and calls it “dreadful complacency bordering on fearfulness of what might be found were they properly investigated”

(par 219 - bailii.org/ew/cases/EWHC/…)

[I’ve been buried in this story for a decade - it’s only when you hear it spelled out in court over a period of more than an hour that the litany of horror visited on these SPMs by the PO]

TM on to our 2015 panorama in which the PO sent out an email to SPMs saying it wholly rejects our allegations based which are based on partial and misleading information.

[hmmm…]

[TM onto the receipts and payments mismatch bug which was covered in extensive detail in the Horizon issues trial and judgment. He is quoting a lot from HI judgment.]

[par 428 in the HI judgment deals with it all]

TM the PO was a public body that assumed the role of the prosecutor - as an institution is was awar for lH to malfunction and it was aware of problems with Ho rollout as well.

[TM goes to HI judgment on Ho rollout - par 455]

"455. Legacy Horizon had, as has been explained, started life originally as something rather different to what it became, having initially been intended as a tri-partite project involving payment of benefits. It did not unfold in this way and became rather different...

… Horizon Online also did not have a happy birth. The pilot for it had to be stopped, and Fujitsu put it on what was called “red alert”. Mr Godeseth described this as “very serious”. The biggest issue was with Oracle, which was what Mr Godeseth was...

… working on and hence knew the most about, but he explained that there were other problems going on at the same time. Some of these problems were put to him – and it must be remembered that this was a pilot scheme...

, with some problems to be expected – and they included cash being short on one day by £1,000 because a transaction for £1,000 did not show up on the online report facility; cash withdrawals being authorised on screen yet the printed receipt being...

… declined (the customer very honestly brought the cash back next day having noticed the receipt wording); a similar problem with a cash deposit; and remming in figures all being doubled up. These are all somewhat – and indeed markedly - similar to some of the problems alleged

… by the different claimants’ witnesses in this litigation. These all occurred during the pilot scheme.”

TM the PO should have had adequate mechanisms in place to ensure any material assisting the defence case should be in their hands and they should be told...

… by the different claimants’ witnesses in this litigation. These all occurred during the pilot scheme.

[TM going back to failures around mismatch payments bug]
TM they should not be proceeding on the basis of fear that prosecutions could be undermined….

… Fraser J called this a “most disturbing” document.

TM reads from HI judgment 457

"To see a concern expressed that if a software bug in Horizon were to become widely known about it might have a potential impact upon “ongoing legal cases” where the integrity of Horizon Data was a central issue...

… , is a very concerning entry to read in a contemporaneous document. Whether these were legal cases concerning civil claims, or criminal cases, there are obligations upon parties in terms of disclosure. ...

… So far as criminal cases are concerned, these concern the liberty of the person, and disclosure duties are rightly high. I do not understand the motivation in keeping this type of matter, recorded in these documents, hidden from view; regardless of the motivation,...

…. doing so was wholly wrong. There can be no proper explanation for keeping the existence of a software bug in Horizon secret in these circumstances.”

TM points out this information reached senior PO execs at the time.

TM the knowledge that there was a live issue with H whilst there were prosecutions taking place would have changed the behaviour of a responsible prosecutor.

TM we see at a high level discussion of a bug and we also see at a high level in the PO the concerns about how this might affect perception of the integrity of H
TM the failure to disclose was systemic and consisteent across the business...

… it was not confined just to those who were prosecuting.

TM moving on to specific failures of PO disclosure as examples. eg when there was a scheudle of sensitive material created by the PO to withhold one item which was to exclude the letter because it could be used...

… as mitigation by blaming H. It was withhelf from the court and the defendant.

TM notes Rob Wilson [PO head of legal?] being told about payments mismatch and also noting how prominent the PO solicitor Jarnail Singh was in prosecuting SPMS and his knowledge of H errors.

TM we say those failures are rendered all the more egregious by the inability of SPMs to make their own investigations into their own discrepancies. [quotes Fraser J again]

TM so defendants were unable to make their own inquiries and were reliant on a business that was...

… complainant, investigator and prosecutor which was institutionally resistant to anything which could discredit the business.

As Fraser J says “extreme sensitivity” bordering on “institutional paranoia” re any crit of H. TM goes to internal report which spells out this...

… sensitivity quoted in Fraser J judgment again.

TM this means that the attitude of the PO to H - in cases where reliability of H the prosecution could NEVER be impartial.

[Big point]

TM moves on to plea deal conditions which were secured for an institutional objective of convicting and acquitting H - gives examples of PO saying they will only accept a plea deal if SPMs sign a document absolving H from criticism.

TM the respondent used the leverage of plea negotiations to acquit (where the defendant's objective was to remain at liberty) to protect H and its own reputation.

TM it was their overrinding institutional objective. The PO should never have been prosecuting these cases and it is an affron to justice that they were doing so.

TM on to what he says is his final point.

TM notes PO objective of securing losses through their proceeds of crime act order activity AND their decisions to charge people with theft without evidence, just to secure a false accounting guilty plea.

[ie via plea bargain - eg “we’ll drop the theft charge if you plead guilty to false accounting]

TM we say the PO has not brought up anything so far which mitigates the PO’s behaviour in prosecuting the SPMs. We say a fact-specific anaylsis would help examine what actually...

… happened, it’s not needed. There is more than enough evidence that these private prosecutions was an affront to the public conscience. They did not get a fair trial because of lack of investigation and non-disclosure. The PO has given no indication on why failts in H...

… and their knowledge of them had no bearing on their thinking. Why they ignored the complaints from SPMs people of good characted about H.
TM the reality was that the PO COULD NOT act impartially when it came to its prosecutions because it was so institutionally dependent on H

[TM has finished his opening speech. Justice Farbey is asking about case law in the context to appellants who pleaded guilty - wants guidance from TM on how he thinks the judges should proceed]

TM do not take it into account against the appellants. These

… prosecutions were because of failures of investigaiton and disclosure - hte appellants guilty pleas were not surprising given they were not even able to carry out their own investigations. Without a failure on G1 these appellants would not be before the court. In effect...

… the defendants had no choice and the fac they pleaded guilty should not be held against them.

[Justice Picken reading some more case law which appears to support TM’s position. TM finishes]

[Sam Stein QC for 5 appellants on his feet.]

SS failures in disclosure would affect a plea.

I represent Mr Darlington, Mr Holmes (deceased), Ms Shaheen and Ms Lock and AN Other (missed that last name)

SS "The PO has turned itself into the nations most untrustworthy brand…” we will never now know the full extent of the H system faults, but not only have this v high number of appellants suffered, but so have so many SPMs up and down the country. There has been a cut off...

… in the info supplied to the appellants, there is also a gap in info from Royal Mail Group. This court cannot therefore know the whole history of the H system. There will be no full examination of all documents at all times. May we therefore just observe that the PO H IT...

… inquiry is excluded from looking at the PO prosecutions. so it won’t be looking at the matters before this court. SPMs and many appellants are dismayed there will not be a proper examination. But as TM said there was a general hostility to SPMs - the people who are for...

… the rest of us are at the heart of the community.

SS important to note that Fraser J did not have all the info which this court has. That is important because his comments and his rulings were drawn from a lesser subset of material than this court has.

SS now suggests he goes to various pars within Fraser J

LJH I’m not sure shouting par numbers at us is going to make the point in the way you want to make it

SS okay lets’ go to Fraser J Common Issues judgment par 8...

"8. The different Claimants all had different experiences with Horizon over different periods of time. However, there is at least one common theme. At the time, these accounting...

…. shortfalls that came to the notice of the Post Office were pursued as exactly that - shortfalls - with the relevant Claimants. The Post Office’s stance both then, and now, was and is that the Claimants were responsible for these...

…. shortfalls, and that the shortfalls represented actual amounts of money missing from the Claimants’ accounting. An alternative way of putting what may amount to the same point, but using the approach of the pleadings…

… , is that the Post Office maintains it is for individual sub-postmasters to prove that the shortfalls were not their individual responsibility, and failing proof of that by an individual sub-post-master, then the shortfalls were their individual responsibility and the...

… sub-postmaster in question would have to pay the relevant sum to the Post Office and face the consequences."

“222. There can be no excuse, in my judgment, for an entity such as the Post Office, to mis-state, in such clearly express terms, in letters that threaten legal action, the extent of the contractual obligation upon a SPM for losses. The only reason for doing so, in my judgment..

… , must have been to lead the recipients to believe that they had absolutely no option but to pay the sums demanded. It is oppressive behaviour."

"564. These problems led to what Mr Green described as a “debt trap”. The sequence would go as follows. The Horizon system would show that there was a discrepancy at the branch, which so far as the SPM...

… was concerned would have arisen through unexplained shortfalls and discrepancies. These were challenged through the Helpline. That SPM disputed that the sums were due. Because of the way that the Post Office approached such ...

… disputed items, these were treated as due and owing by the SPM to the Post Office in any event, in other words as non-disputed debts. The most that a SPM could expect from the Post Office was time to pay off the amount, over 12 months…

… , deducted from their future remuneration. The only alternative the SPM would have would be giving notice themselves, which would bring to an end their appointment as a SPM, and they would in any event…

… (so far as the Post Office was concerned) still owe the disputed sum. Accordingly, the SPM effectively had no option but to accept the offer of time to pay - it was their only real alternative. This scenario is amply demonstrated by the position in which...

… Mrs Stockdale found herself. She was told matters were being investigated, but then sums said to be due were demanded from her in any event. The most she could obtain was time to pay."

SS also raises the NFSP issue in par 591 of the judgment.

He says this shows:

SS "The potential of a union, the NFSP, providing assistant to the Subpostmasters had been fettered by the Post Office."

[for more on how the NFSP utterly failed its members in their direst hour of need, read this:

postofficetrial.com/2019/04/common…]