Thread by @nickwallis

Good morning from the first Post Office Horizon IT inquiry open hearing. It is being held at Juxon House in London in the shadow of St Paul’s Cathedral. Proceedings start at 11am.
#PostOfficeScandal

Already, Howe and Co, who are representing 151 Subpostmasters have made a submission to change the name of the inquiry to the Post Office Inquiry, to ensure the inquiry looks at all aspects of the PO and govt’s behaviour - not just the IT system.

I am sitting next to my colleague from Panorama (Tim) to my left and the NFSP to my right. We are separated by clear perspex screens. On Tim’s left is Tom Witherow from the Daily Mail.

Everyone at the International Centre for Dispute Resolution (ICDR) is being super-lovely and helpful but it feels quite weird to be cheek-by-jowl with the participants to this inquiry rather than watching from the sidelines.
Lord Arbuthnot is directly in front of me...

… he is sitting next to @RichardMoorhead. Behind me are the Met Police. Next to Lord A are the Fujitsu people, and then next to them, Gwyn Hughes, screenwriter for the ITV Drama about the scandal.

@RichardMoorhead Nearer the front are Hudgells, How and Coe and the Post Office. Second Sight are behind me to the right. @JoHamil73963257 is here, of course, UKGI, BEIS, the CWU and Mischon de Reya (repping Paula Vennells).

We’re underway. Sir Wyn Williams is here and making introductory remarks. Calls it the first “truly open session of this inquiry”. Now doing housekeeping. I’ve written a brief preview of today’s hearing here: postofficescandal.uk/post/your-titl…
and you can follow it on youtube...

… here:

youtube.com/channel/UCgijU…

Sir Wyn has just said (about 3 mins ago) that I can live tweet, but only on a three minute delay in order to match the 3 min delay on the youtube channel, which effectively makes this impossible.

Best watch it on youtube, until we can resolve this (which is unlikely to be today).

Sir Wyn has drawn attention to what I predicted would be the key battleground in my preview - Legal Professional Privilege. He recognises it “has the potential to be particularly problematic”...

… Sir Wyn (SW) appears to have taken the view that if he asks a party to waive privilege they should do so. If they refuse he will “have to determine whether that participant is entitled to rely upon such privilege…"

“… and if so, what consequences, if any, flow from such reliance.” - which is about as heavy as he can get because the inquiry cannot force the PO to waive privilege.

Oral submissions are about to start...

… by the way if this is all new to you, can I recommend a book I’ve got coming out later this month called The Great Post Office Scandal. You can buy it here. It’s basically the whole story up to now. bathpublishing.com/products/the-g…

Neither BEIS, Paula Vennels, Fujitsu or the Post Office wish to make any oral submissions (you can read their written submissions for this hearing here: postofficehorizoninquiry.org.uk/key-documents/…)

(Vennells isn’t here btw)

The Met is not going to speak either. It’s very hard as-live-tweeting on a three minute delay. Let me know if it’s of any use.

Sam Stein QC is on his feet for Howe and Co and 151 SPMs. Howe and Co wrote to the PO CEO recently demanding immediate redress for his clients (read it here postofficehorizoninquiry.org.uk/key-documents/…). He has had a reply...

… the reply from the PO says “Post Office Ltd has been in contact with the Government in this regard and will continue these discussions on the group litigation settlement figures.”

This is a LONG way away from the “full and final” point on the litigation settlment...

… the government was peddling last year (see here postofficetrial.com/2021/04/settle…)

Sam Stein (SS) is calling on the inquiry to compel the govt and PO to properly compensate their clients immediately. Reckons SW has the power to do so. Also wants the inquiry to be aware that PO etc might seek to use the inquiry to delay payments etc...

… and requests SW is wise to that.

[NB everything I write "in quotes" is a direct quote - taken from either my notes or the live transcription laptop I’ve been provided with. Everything else is a summary of what is said or is going on in the room.]

A reminder that this inquiry is being streamed with a 3 mins delay on youtube:

SS has been making essentially the same points as outlined in Howe and Co’s written submissions. They want the inquiry renamed the Post Office Inquiry, they want a separate, public hearing to discuss the issue of privilege - with SS noting that the PO is already dragging its...

… heels on even coming to a decision as to whether it will seek to claim privilege on documents.

Also SS makes it clear that the Post Office is a “creature” of government and that “we believe the evidence will show that BEIS was eihter aware or should have been aware of the substatial failings of Horizon before its imposition on SPMs throughtout the period of time…"

“… over 20 plus years of this scandal. Any investigation of POL must necessarily ben an investigation of BEIS”

SS is done. Tim Moloney QC for Hudgells solicitors is on his feet. Doesn’t take long - just points out that “The Convictions of the Core Participants...

“… that we represent were quashed in April which is some seven months ago and yet no decision has been made in relation to privilege and we’d ask Post Office to heed your encouragement in respect of that decision-making that you gave this morning, sir."

Calum Greenhow from the NFSP joins us by remote link.

“As a postmaster throughout this whole period this provide me with a unique perspective of the years under consideration. … it is by sheer luck we have not been caught up in this predicament like so many of our…"

“… colleagues over the years… I have personal interest inthis case anda deep desire to [unclear] what went wrong and how so many people were impacted in the manner they were. We cannot escape the reality. The Govt of teh day said therre wasn’t anything wrong, the Royal...

… Mail Group and Post Office said there wasn’t anything wrong. ICL Pathway [later subsumed into Fujitsu UK] said there wasn’t anything wrong. The criminal justice system convicted these people. These four groups are such behemonths that this full situation has very much been…"

“… likened to David versus Goliath.”

It’s a really good speech, and it does make you wonder where the NFSP were whilst all these Subpostmasters were being prosecuted.

“In a recent snap poll on a Facebook page I asked colleagues a question. The Post Office are making a great additional of [unclear] consultations but do you are feel you are being listened to? Not a single colleague replied [that they felt they were]. Quite simply…"

“… can postmasters areound teh country have faith in the resetting of the relationship between [SPMs and the PO] whilst those who funded the GLO strategy remain in post.”

[The GLO was the group litigation Bates v Post Office - more here: postofficetrial.com/2019/01/articl…]

Speech over. No mention of the NFSP’s culpability in the scandal or any invitation for the inquiry to consider it.

Oral submissions from Core Participants over. Now on to interested parties.

Second Sight’s Ian Henderson takes the floor.

Short submission from Ian Henderson - he says “Our professional fees were paid directly by Post Office who also supported our appointment… Our terms of appointment were quite clear. They included unrestricted acces to documents held by Post Office, uncluding documents…"

“… subject to confidentiality and legal professional privilege and no limitation in the scopr of work deemed necessary by Second Sight. Our work started in the summer of 2012. Initially Post Office were co-operative and appeared committed to the agreed goal to seek the…"

“… truth irrespective of the consequences. As our work progressed the attitude of Post Office changed. We understand largely based on legal advice. IN your opening remarks you touched on the question of legal professional privilege. Under the agreement…"

“… between Second Sight and the Post Office, we are subject to a non-disclosure agreement and also terms of confidentiality. That constrains what I can both today and also going forward, and I would ask that you consider discussing with Post Office how Second Sight…"

“… can be released from those obligations if we are fully to support this Inquiry. We do not consider it appropriate that we express an opinion on the scope of the inquiry…but in our view the inquiry should be wide-ranging and include looking at the legal advice…"

“… provided to Post Office.”

Prof @RichardMoorhead from the Uni of Exeter is now on his feet. Making a strong case for individual cases to be examined so it is possible to see who, knew what when and on the issue of privilege he says:

“Post Office and Fujitsu should waive this morally. I dont’ see who they can come to the inquiry and claim to be co-operating without doing so. Given the problems [unclear] including the conduct of legal [unclear]… would include the abuse of privilege I do not see how they…"

“… can come out and say well we’re not sure about privilege.” Also I would argue privilege has been effectively lost in large part. The confidentiality has been punched full of holes over recent months. Even if I am wrong about that, there’s a strong prima facie case for…"

“… saying crime fraud exception, or as its more accurately considered iniquity is likely to vitiate privilege here. Iniquity is evident in abundance, including the litigation and prosecution of shortfall cases… I would adhere to to the need to lift any extant NDAs…"

“… and similar agreements that would impact on the evidence of witnesses.”

Moorhead turns to corporate governance and the failings evident, which he says go wider than the Post Office and into corporate Britain.

"You will have seen a submission from a group of GCs [General Counsel - top in house lawyers] and others with great practical knowledge of lawyering and governance. That came about after they signed up for a whole day and one night with me talking about POL."

"They took on this penance because they see the same governance problems evident in POL too often in other boardrooms. There is a critical public interest in this issue…."

“… So, my lord, You need to understand what lawyers did, but also how they were led, what the incentives and relationships and culture were. Ultimately lawyers may have contributed to that culture but it is not likely they were solely or mainly responsible for it."

By way of example, @RichardMoorhead zeroes in on something which came up in the civil litigation: "There is one potentially telling moment where, when dealing with remote access, Paula Vennells says, in effect, she needs to be able to say that remote access is impossible…"

“… The willingness within the organisation to have facts fit preferences does not come from the lawyers but it may be helped by them, through commission or omission."

More on that here: postofficetrial.com/2018/11/day-9-…

Moorhead finishes with:

"Mrs Vennells says in a letter to an MP, now a government minister, in 2015, “Through our own work, and that of Second Sight, we have found nothing to suggest that, in criminal cases, any conviction is unsafe.”…"

“… That statement is, we can see now from Hamilton, one that was palpably false, whether Mrs Vennells knew it or not. It is a statement made by the senior manager of POL, and very likely indeed, with the assistance of lawyers directly…"

“… reviewing or drafting the letter, or indirectly, through previous advice which is being used here. Lawyers and managers were involved and responsible. Lawyers and managers are mutually responsible…"

“… for this irresponsibility. You must investigate them both if the lessons are to be learned and similar problems are not to occur again. They cannot hide behind privilege whilst shifting blame.”

The MP Moorhead to whom Vennells wrote is George Freeman. Here is the letter...

… attached to a letter written by Baroness Neville-Rolfe to Andrew Bridgen MP. Vennells’ letter was written in June 2015:

data.parliament.uk/DepositedPaper…

[I am grateful to Prof Moorhead for the link.]

Prof Moorhead finishes by saying: "Considering the Horizon saga without considering the lawyering would be a bit like considering Watergate without considering the White House Tapes. Telling, perhaps vital information will…"

“… be missing. The abuses of power. The injustice… who did it and why will not be properly understood. Sir, to discharge the inquiry’s remit you must do the equivalent of listening to those tapes.”

He finishes. We take a break.

We are back after the break. Sir Wyn is going to give some preliminary thoughts on whether to have a separate hearing on privilege before we finish. First we have our final speaker, Paul Marshall [who wrote one of the seminal texts of this scandal: postofficetrial.com/2021/06/marsha…]

He begins: “Under the rubric of withholding material necessary for an appeal, in a witness statement made by him in Oct 2010 filed for Mrs [Seema] Misra’s criminal trial, mr Gareth Jenkins a very senior Fujitsu computer [unclear] architect of the Horizon system, stated, among…"

“…. many other things two facts. First he stated, and I quote:
“Any transaction that is recorded on Horizon must be authorised by a user of the Horizon system who is taking responsibility for the impact of such transactions on the branch’s accounts.” Secondly he said…"

“… this and I quote:
“There are no cases where external systems can manipulate the branch’s accounts without users in the branch being aware and authorising the transactions.”
Both these statements are a matter of fact wrong.”

Marshall cites the Horizon judgment in Bates...

… v Post Office and how the trial which led to the judgment unpicked it all. On this point Marshall concludes:

“The fact of remote access attracts only a single sesntence in the Court of Appeal’s April 2021 judgment, but its importance is great. Its importance was…"

“… certainly recognised by Mrs Vennells. Implications of the Post Office having before 2019 accepted that access to branch accounts was possible with Postmaster authority or knowledge and manipulation of those accounts both possible and also happened as a fact without any…"

“… record having been kepy by Fujitsu or the Post Office is too obvious to state. That fact alone would have rendered every convcition over the relevant period arguably unsafe… and in any event would have afforded an obvious defence both to civil claims and criminal...

… prosecutions.”

Marshall goes on to deal with the unconscionable delay to justice pointing out speedy access to justice is a legal human right, and the reason for the delay needs to be explained by the prosecuting authority. He demands an explanation for his former...

… clients Seema Misra, Janet Skinner and Tracy Felstead… from the Post Office for what he calls their attitude of “aggressive delay and denial”.

We come to an end of the submissions. Sir Wyn says he will deal with the issue of privilege in a written statement in the next...

… two days. He might consider it necessary to have a hearing between 6 and 17 December.

"It is crucial, as I said at the start, this issue is determined one way or another this year.”

HEARING ENDS.

Housekeeping follows….

I am reporting this inquiry thanks entirely to the donations of some very generous people who contributed to a crowdfunding campaign I ran earlier this year. I am grateful to them. If you want to get involved, please buy. my book! You will get the definitive account of this...

… scandal so far, you can join the secret email list which will keep you abreast of the inquiry and other developments in the scandal and 10% of all the income from the book will be put into a fund to help Subpostmasters who are still struggling. Link in the next tweet...

Here you go. Many thanks in advance.
bathpublishing.com/products/the-g…

Just a final note - I got ahead of myself - in Paul Marshall’s submission just now. He said something which I know @RichardMoorhead has raised as a potential concern. I’d like to ensure it is in the public domain:

“Given the emergence of the shredding advice...

“… [see my report on the Post Office’s shredder in chief here: postofficetrial.com/2021/03/day-2-…] shortly before the Court of Appeal hearing in March this year, one is bound to ask as to whether [Simon] Clarke…" [author of the Clarke Advices on shredding etc and an opinion on Seema…]

[…Misra’s conviction in which the PO did not release to him their prosecution file] “… had intentionally had withheld from himi the prosecution file. I have also referred to this in the contact of Second Sight’s requets for prosecution files that were refused, it seems…"

“… by the Post Office general counsel [Chris] Aujard and the select committee the following year. The second reason I refer to this is that the very restrictive nature of the review of at least Mrs Misra’s prosecution is not well known. The Post Office has made much…"

“… of undertaking reviews of its prosecutions following teh Clarke advice in 2013 in the light of what I have said there is an obvious serious and substantial question of the thoroughness and completeness of those reviews. Had the Second Sight interim report been disclosed…"

“… to Mrs Misra in 2013 or 2014 it would have put any competent lawyer on energetic enquiry. The only additional thing I shall say on this point is that Mr Clarke in early 2014 advising the Post Office against disclosing the Second Sight interim report to Mrs Misra…"

“… expressly relied upon the written advivce by my learned friend Brian Altman QC. The day after I received Mr Clarke’s Advice in November 2020, I raised with Mr Altoman the question as to whether given an issue in the appeals with the adequacy of disclosure…"

“… given by the Post Office and that he appeared to have advised the Post Office on its disclosure obligations there might be an issue of an apparent conflict of interest.”

ENDS - right. I’m off. Thanks for reading.

@threadreaderapp unroll pls