Thread by @nickwallis

Late yesterday afternoon, at the University of Law in London, the barrister Paul Marshall delivered one of the most important speeches on the Post Office Horizon Scandal to date.

postofficetrial.com/2021/06/marsha…

#PostOfficeScandal

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Mr Marshall pulls every detail of this appalling story out of the mud and connects the dots between the Post Office, Fujitsu the legal system and government. He explains why people are culpable and under what laws. He says:

"Post Office lawyers knew…

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… of information that would have provided a defence to defendants. Other lawyers knew of information that would have enabled convicted defendants to launch appeals to the Court of Appeal long, long before March 2021. I hope…

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… that some of them may end up in prison for perverting the course of justice.”

Barristers do not often express such sentiments about fellow members of their profession. I urge you to read the full text. I’ll post the link to the recording when I get it. Meanwhile…

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… on Seema Misra and Gareth Jenkins, the Post Office and the law:

“In 1997 Lord Hoffmann, universally regarded as a clever judge, loftily declared that no one needs a degree in electronics to know whether a computer is working or not. The Bates group civil litigation…

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… incurred colossal cost in exposing the fallacy of Lord Hoffmann’s observation. The law treats computers like machines. But computers are not machines – or at least they are not only machines…

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… Part of the present problem is that technology advances so rapidly that our means of dealing with it cannot keep pace. There is more regulation covering the design of a toaster than there is of someone who writes and sells computer software…

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… At a more concrete level, in 2010 at Mrs Seema Misra’s trial, prosecuting counsel opened and closed the case for the Crown by telling the jury that, were there to have been a problem with the Horizon computer system, any such problem would have been manifest…

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… and obvious to a Horizon computer terminal operator. That’s, in effect, Lord Hoffmann’s point. It’s wrong.

The Law Commission expressed a similar view in two reports to Parliament in 1993 and 1997. The Commission recommended that safeguards…

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… for evidence derived from computers in legal proceedings be removed.

Until 2000, a person relying on computer evidence at a criminal trial was required to prove that the computer was working properly. The Post Office Horizon scandal tracks exactly…

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… the period since the removal of protections previously provided by the Police and Criminal Evidence Act 1984.

The mischief of the prosecution’s contention was that, by sleight of hand, it put the onus on Mrs Misra to explain to the jury the problems she…

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… encountered with Horizon. All she could actually do was point to shortfalls she had experienced at her Horizon branch terminal – that is, all she could show was that the cash…

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… that she had received didn’t match the balancing figure on the Horizon computer screen. In leaps it had escalated to £75,000.

She called the police and suspected her colleagues of theft. The transcript of her trial shows that she was close to taunted…

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… by the prosecution for her being unable to point to identifiable problems: ‘Mrs Misra says that there must be a fault with Horizon, but she can’t point to any problem she actually had’.

The jury was invited to infer that the only cause of the discrepancy…

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… must be theft. That should never have happened. Had her trial been conducted properly, the Post Office should have been required to prove that the Horizon system was working at the time she experienced shortfalls…

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… As we now know from Mr Justice Fraser’s 2019 ‘Horizon Issues’ judgment , the Post Office could not have done so. Mrs Misra went to prison. She was 8 weeks’ pregnant and it was her son’s 10th birthday. On being sentenced she collapsed.

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… The problem with the Post Office’s litigation and prosecution of its postmasters is that, for 20 years, the Post Office gave wholly inadequate disclosure of known problems with its computer system. The most astonishing aspect of this to anyone technically half-literate…

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is that, until 2019, the Post Office declined to disclose the Fujitsu Horizon Known Error Log. In the massive group litigation (Bates v Post Office), it had three lines of objection to disclosing the Known Error Log (KEL) – a central log maintained to record…

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… as its name suggests, errors in a computer system, their impact, and fixes undertaken to correct them.

To start with, the Post Office’s solicitors, in correspondence questioned whether the Known Error Log existed at all. Mr Justice Fraser concluded that it did…

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… Once the existence of the Known Error Log was established, the Post Office’s leading counsel submitted to the court that the KEL was irrelevant and the claimants’ demand for its disclosure was “a red-herring”….

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… Mr Justice Fraser concluded that the KEL was likely relevant to the claimants’ claims.
Once established as existing and likely to be of relevance, the Post Office’s final contention was that, however relevant it might be, very regrettably it could not disclose it…

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… because it was not the Post Office’s Known Error Log, but rather Fujitsu’s.

Mr Justice Fraser’s response to this, was to point out that, in fact, as a matter of contract between the Post Office and Fujitsu, the Post Office was entitled to the Known Error Log…

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… The importance of the KEL is impossible to overstate. The judge found it not to be a red-herring, but, on the contrary, fundamental in revealing the true and full extent of Horizon’s unreliability over time…

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… the bugs identified in the system, their effects on branch Horizon accounts, and the fixes that were implemented.

In case you are not already disconcerted, Mrs Misra, on no less than four separate occasions in the course of her prosecution…

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… requested that the court order disclosure by the Post Office of Horizon error records.

Three different judges dismissed each of Mrs Misra’s applications. In the last application, at the end of her trial, her defence counsel submitted…

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… that she couldn’t have a fair trial without further disclosure.

The trial judge disagreed and said she could have a fair trial without it. 10 years later the Criminal Cases Review Commission concluded that Mrs Misra didn’t receive a fair trial. Why? Because…

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… she was not given proper disclosure by the Post Office.

This ought to be a matter of acute concern to the judiciary, to the legal profession and also to the public.”

There’s more…

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"It may come as a surprise to you to know that in September 2010, a month before Mrs Misra’s trial, a significant number of senior employees of Fujitsu and senior employees of the Post Office held a high level meeting at which a bug was discussed…

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… called the “Receipts and Payments mismatch” bug. This bug, it was acknowledged, would cause a postmaster’s receipts and payments to appear to balance at the terminal but not do so on the Post Office’s main servers. In short…

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… an error caused by this bug would not be apparent or obvious to an operator.

It was recorded in writing that this might present a problem for the Post Office in its “ongoing legal cases”. A senior Fujitsu employee and computer engineer who was present…

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… at that meeting gave evidence a few weeks later at Mrs Misra’s trial.

He said nothing about it. If you are not deeply shocked by that you ought to be. Mr Justice Fraser described the bug as having been kept “secret”….

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… If you have been following me, disclosure of that bug would have undermined statements made by the prosecution, both in opening and closing its case against Seema Misra….

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… “

Here’s what Mr Marshall has to say about the Post Office’s pursuit of Lee Castleton:

"Lee Castleton invested his life savings in acquiring a branch Post Office in in Yorkshire in 2003…

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… Recognising the systemic risk that it was shouldering, the Post Office with its lawyers devised an extremely adverse contract that shifted the risk in the [Horizon] system to postmasters. This was achieved by a contractual term that provided…

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… that a Horizon account balance stated by a postmaster to the Post Office was an “account” in law. An “account” is analogous to acknowledgement of a debt due. The legal effect is that once stated, the burden is on the paying party, if they want to dispute…

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… the account for any reason, to show why the account is wrong. The postmaster was contractually required to make up, out of their own funds, any shortfall. If a postmaster’s account was wrong, not by any…

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… fault of theirs but because the system had failed, as a matter of contract it was down to the postmaster concerned to show and explain why…

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… That presented the hapless postmaster with an insuperable evidential and legal problem.

The first occasion on which the Post Office was required to positively prove that the Horizon system worked properly was in 2019. It then failed dismally…

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… The trial judge described the Post Office’s contentions that Horizon was robust and reliable as the 21st century equivalent of maintaining that the earth is flat.

In 2006 Lee Castleton was sued for a shortfall…

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… l shown at his Horizon terminal of about £26,000. He was careful and knew he had not made mistakes.

Mr Castleton was unrepresented by lawyers at his 6-day trial in 2006. He had run out of money to pay for legal representation. He…

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… had called the Horizon helpline many, many times, complaining that he had problems balancing his accounts.

That cut no ice with either the Post Office or with the judge. Mr Castleton was persuaded to accept that the balance that he had provided…

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…. to the Post Office was in law “an account”. He accepted that at the outset of the trial. He was doomed from the word go.

In law, the essential feature of an account is that it is the result of agreement. It took 13 years for Mr Castleton’s concession to be shown…

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… by Mr Justice Fraser in 2019 to have been wrongly made. That is because there was no agreement of the account.

There was no contractual mechanism for disputing the Horizon computer figure. The contractual term was…

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… , in effect 'agree the Horizon figure or stop operating your Post Office’. Neat, but utterly unreasonable and oppressive.

The contractual provision had the purported legal effect of transferring the risk of Horizon failure to hapless postmasters. It is unsatisfactory…

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…. that for 20 years it went unexamined. Most postmasters could never have afforded to instruct a barrister of sufficient experience to challenge the Post Office. Lee went like a lamb to the slaughter.

The trial judge, without hearing any expert evidence…

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… , rejected Mr Castleton’s defence that the Horizon system might not have been working properly. The judge concluded that it was working properly. You may ask yourself how he arrived at that conclusion. You will remain mystified…

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… if you take the trouble to read the judge’s judgment: Post Office Ltd v Castleton [2007] EWHC 5 QB.

The Post Office obtained a costs order against Mr Castleton for £321,000.

The costs order made against him caused Lee Castleton to become bankrupt.

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… The Post Office obtained a costs order against Mr Castleton for £321,000.
The costs order made against him caused Lee Castleton to become bankrupt.

For several years he and his family were…

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… rendered almost destitute. They lived in accommodation without a hot water boiler because he could not afford one. Ask yourself how many postmasters the Post Office’s solicitors will have shown that hopelessly flawed…

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… reported High Court judgment to, to make them think twice before taking on the Post Office.

The judgment in Mr Castleton’s case is now shown to be wrong in virtually every respect, both as to the law and as to its facts.”

There’s so much more of this…

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… in Mr Marshall’s speech. Make yourself a cup of tea and spend 20 minutes reading it. It is honestly worth it.

postofficetrial.com/2021/06/marsha…

#PostOfficeScandal

Thanks for reading this far - if you want to give your compliments to or ask a question of Mr Marshall, his handle is: @PaulMar72224296