Thread by @nickwallis

Good morning from the Salvation Army Cafe at the northern end of this bridge. I’m settled here ahead of Day 4 of Phase 2 of the inquiry, being held at the International Dispute Resolution Centre (IDRC), in Juxon House, near St Paul’s Cathedral in London.

#PostOfficeInquiry

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This is an epic tweet thread which I’ll turn into a blog post in due course…

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I am catching up on the transcripts of the past few days and will pick out anything of interest. I was here for the opening day on Tuesday, but missed Wed and Thu.

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Wed was the second day of Jason Beer KC’s opening statement. Yesterday was the turn of Sam Stein KC, Tim Moloney KC, Ed Henry KC for the former Subpostmasters they represent and Catriona Watt, who represented the NFSP.

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I live-tweeted most of Catriona’s statement yesterday (and regrettably got the spelling of her name wrong in the process, apols). If her statement is anything to go by it looks as if the organisations jointly responsible fiasco will all be

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using this enquiry as a finger-pointing bottom-protecting exercise.

I’m just spinning through the transcripts of Wednesday, in order to pull out the interesting bits for this tweet thread, then I’ll be off to the IDRC to tweet the opening statements made by:

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1) UK Government Investments (govt organisation ‘owned’ by the Cabinet Office which has a director’s seat on the Post Office Board, currently held by…

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… business expert Tom Cooper (read about my only interaction with him here: postofficetrial.com/2019/06/kelly-…)

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Cooper has been on the board since 2018 and therefore was the main back channel to the government during its disastrous litigation against the Postmasters, which has precipitated its need to be propped by the taxpayer.

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2) Department for Business (BEIS) Owns the Post Office - culpable in the way it let the PO go rogue over 20 years whilst pretending that as an “arms length company”, the govt was in no way responsible for what it was doing (despite being its only shareholder).

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3) Fujitsu - designed, built, rolled out and operates the Horizon system. Recently told the BBC it’s board had no idea there were serious issues with Horizon and that it has nothing to apologise for - bbc.co.uk/news/business-…

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4) Post Office - wants to use the inquiry to ‘listen and learn’. Accepts it might get some criticism. Given some of that criticism appears to involve suggestions at least one of its senior execs might have been involved in a conspiracy to pervert the course…

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… of justice, that it something of an understatement.

Okay 'quick' review of the week so far:

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Day 1 of Phase 2 started with an attempt to get the inquiry adjourned by the Subpostmasters because it transpired the Post Office still hadn’t disclosed all the documents in its possession. This failed, although…

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… the Post Office was put on notice by the inquiry chair Sir Wyn Williams that if he got the slightest hint the PO was playing silly buggers, he’d be onto them. Read two write-ups of that here:

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Daily Maiil: dailymail.co.uk/news/article-1…

Computer Weekly: computerweekly.com/news/252525926…

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The Post Office recently gave me this statement about the issue, saying:

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“Post Office has been fully transparent and cooperative with the Inquiry over disclosure. We have already passed to the Inquiry over 95,000 documents to date but we have also regularly reported to them the challenge we face in respect of historical data particularly…

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…. in respect of hard copy data going back some 25 years situated in over 200 locations and on multiple data repositories. This is not an uncommon issue for large corporations or organisations. At the Inquiry, the Chair did not criticise Post Office in respect of its…

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… disclosure noting the challenges that the organisation faces. We will of course continue, as we have done to date, to provide necessary disclosure and be transparent with the Inquiry.”

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The remainder of the day was taken up by Jason Beer KC, who told us Tony Blair was made explicitly aware of serious problems with Horizon before it was anywhere near finished. He was also told by a big boss at Fujitsu (via the British Ambassador to Japan)

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that binning the project would cost jobs, threaten the flotation of Fujitsu UK and put a serious dent in Britain’s reputation around the world.

Blair told his ministers not to bin Horizon. With disastrous consequences.

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We also found out how Horizon (which still didn’t work at the time it was rolled out) was green-lit by the Post Office board. More here: postofficescandal.uk/post/why-was-h…

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Day 2 of Jason Beer’s presentation focused on the training provision to Subpostmasters, identification of errors with Horizon, branch “audits”, Second Sight’s reports, legal advice from Brian Altman KC, the decision to try to recuse Mr Justice Fraser and lots lots more…

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Beer informed us one of the inquiry’s witnesses will be Brian Trotter, who was perhaps the dimmest of the dim bulbs (though it was a close-run thing) on display from the Post Office side during Bates v Post Office litigation. The judge, Mr Justice Fraser, said Trotter…

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‘was accused of being evasive in some of his answers. I do not accept that he was being evasive, but he certainly seemed extremely nervous about giving evidence before me that he thought might be unhelpful to the Post Office.”

It’ll be good to see him back.

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Beer described Justice Fraser’s judgments in Bates v Post Office as the “bedrock” of the inquiry’s own investigations and gave a potted history of how Bates v Post Office came about, giving due credit to the Justice for Subpostmasters Alliance.

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Beer also set out some figures re the settlement to that litigation which I have been told about but not seen. The PO gave the 555 claimants £57.75m - that’s not new, what is new is that Beer told the inquiry £15m was earmarked for legal fees

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…and £42m went to the SPMs, but because the legal fees and success fees for the litigation funders were so large, the Postmasters only ended up with £10.5m to share between the 555.

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[Since that day Alan Bates, founder of the Justice for Subpostmasters Alliance has fought tooth and nail to get proper recompense for the 555, and he has succeeded. Earlier this year the govt set aside funding and found a way to essentially re-open the settlement…

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… to give the Postmasters their due. This is almost unprecedented. Bates’ achievements throughout this scandal are almost beyond heroic]

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After lunch Beer went on to preview the Second Sight investigative work between 2012 and 2015, the 2013 Clarke Advice (something I tried to get out of the Court of Appeal in 2020 - postofficetrial.com/2020/12/applic…),

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the Brian Altman KC advices from 2013 - 2015 which have yet to see the light of day (PO wouldn’t give them to me under FOI), the 2016 Swift Review (extricated from the govt by Eleanor Shaikh only this August and published…

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…. here postofficescandal.uk/post/secret-20…) and Brian Altman’s advices from 2016 onwards which also haven’t seen the light of day.

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[Altman’s role in the Court of Appeal hearings between 2020 and 2021 also need investigation, but I am not sure the inquiry is going to do that]

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Beer then went on to namecheck m’colleague Rebecca Thomson’s seminal investigation for Computer Weekly in 2009 which put the Horizon Scandal into the public domain (read it here: computerweekly.com/news/224008923…

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… questions raised by MPs, and the Ismay report which still makes my blood run cold (see my book and read the report itself here journals.sas.ac.uk/deeslr/article…)

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Beer also referred to the Cartwright King Sift Review, (CK sift review) which was set up after the Simon Clarke (of Cartwright King) realised Second Sight’s interim review fatally holed all the ongoing Post Office prosecutions.

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The Review was set up to see if any previous prosecutions should be reviewed or Subpostmasters should be told if their convictions might be unsafe. The Post Office has refused to give me

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anything but the bare bones of information regarding the Sift Review. The inquiry will “ask to what extent this exercise was truly independent and whether it was sufficient in its oversight.”

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And then we come to the Post Office’s attempt to pervert the course of justice:

Beer said that after recognising Second Sight’s conclusions, Simon Clarke “advised that there ought to be a single central hub to act as the primary repository for all Horizon-related issues…

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“…Participants were apparently informed that they should bring all Horizon-related issues that they had encountered into that meeting. Minutes were to be taken at the meeting. They were to be centrally retained and …

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“…. disseminated to those who required the information. At some point between the conclusion of a conference call on 31 July 2013 and a subsequent advice that he wrote, it became unclear to Mr Clarke as to whether and…

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“… to what extent material was either being retained or centrally disseminated in accordance with those instructions. Information was relayed to Mr Clarke, and we can see that in his subsequent advice….

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“…. He refers to the conference call to which I've referred, and says: "At some point following the conclusion of the third conference call, which I understand to have taken place on the morning of Wednesday 31st July, it became unclear as to…

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“…. whether and to what extent material was either being retained centrally or disseminated. The following information has been relayed to me:
"i. The minutes of a previous conference call had

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“… been typed and emailed to a number of persons. An instruction was then given that those emails and minutes should be, and have been, destroyed: the word ‘shredded' was conveyed to me.

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"ii. Handwritten minutes were not to be typed and were to be forwarded to POL's Head of Security.

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"iii. Advice had been given to POL which I report as relayed to me verbatim [then in italics]: "'If it's not minuted it's not in the public domain and therefore not disclosable.

"'If it's produced it's available for disclosure - if not minuted then technically it's not.’

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"iv. Some at POL do not wish to minute the weekly conference calls.”

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“… That information was clearly of concern to Mr Clarke and so he wrote the shedding advice. That advice contained trenchant criticisms. He made it clear that there was a duty to record and to retrain material but could not be abrogated. He explained that…

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“… to do so would amount to a breach of the law and, in the case of solicitors and counsel, serious breaches of their respective codes of conduct. Mr Clarke advised that where such a decision was taken, partly or wholly…

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“… in order to avoid future disclosure obligations, it may well amount to the crime of conspiracy to pervert the course of justice. Further, that if contrary advice was given, his own advice would itself become disclosable….

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“…. Mr Clarke set out in strong terms that the only proper way forward was for the conference calls to be minuted properly, these minutes to be centrally retained and made available to all those who properly required access to them.

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“… Further, he emphasised that individual investigators with knowledge were bound by both a duty to record and to retain information and to inform the prosecutor, the Post Office, about it. He emphasised the need for a mechanism to permit the collation of all…

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“…. Horizon related bugs, defects, complaints, queries and Fujitsu remedies arising from all sources into one location. His conclusion was that any advice to the effect that, if material is not minuted or otherwise written…

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“… Further, he emphasised that individual investigators with knowledge were bound by both a duty to record and to retain information and to inform the prosecutor, the Post Office, about it. He emphasised the need for a mechanism to permit the collation of all…

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[oops sorry - stick to the numbering]

“…. down it doesn't fall to be disclosed, was wrong, and represented a failing fully to appreciate the duties of fairness and integrity placed upon a prosecutor's
shoulders.”

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Beer said the inquiry will “seek to establish what it was that the Post Office had destroyed and look into whether there was a culture of not recording information, of document destruction and of withholding important information from disclosure.”

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Then Beer went into the Detica report, the then Post Office Director of Comms Mark Davies’ appearance on the Today Programme with James (now Lord Arbuthnot) and former Subpostmaster Jo Hamilton…

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… the BIS Select Committee hearing on 3 Feb 2015 and the sacking of Second Sight on 10 March 2015. [During this phase the PO was at the height of its paranoid batshit denial phase, leaning on journalists, making palpably false statements…

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… to parliament and in public and generally acting like an arm of state gone rogue. Paula Vennells was running the show at this time, but I would LOVE to know what Jo Swinson and her civil servants were up to]

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Beer then turned to the Altman advices. Brian Altman KC advised the PO right up until 2021. He was “formerly the most senior prosecution barrister in England, known as the
First Senior Treasury Counsel”

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Altman considered the CK Sift Review a possibly conflict of interest as (in Beer’s words) they were “essentially marking their own homework”, but Altman decided “there is benefit in Cartwright King and its internal counsel identifying and engaging in the review of

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“impacted cases, as they are familiar with their case files and intimate with the process.”

He went on to say: "But it seems to me it will be wise for me to dip sample some of their work in due course, and I may have to devise some criteria of my own for those cases I

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feel I should review personally."

Beer goes on to describe just how involved Altman got in deciding whether or not the PO may or may not have miscarriages of justice on its hands, who should be told and when.

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He also appears to have been the person responsible for telling the PO not to mediate with

Subpostmasters with convictions, one of the key elements to the setting up of the 2013 mediation scheme - a scheme the JFSA and MPs would only agree to if those with

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convictions would be accepted on it. Beer notes a meeting in which…

“[Mr Altman] advised considerable caution in relation to mediation cases involving previously convicted individuals (Seema Misra has already indicated an intention to be

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within the scheme)….

“The concern is that lawyers acting for those individuals may be using the scheme to obtain information which they would not normally be entitled to in order to pursue an appeal.”

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[That is damning. They might find out stuff which would give them grounds for an appeal?! That must be sailing very close to the wind legally - there is an obligation to hand over any material which might make a conviction unsafe, not actively try to…

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… stop applicants to a mediation scheme from getting hold of it, in case, shock horror, they use it to mount an appeal of their conviction.]

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Beer says the inquiry will look into all this. Beer continues “By late 2013 Mr Altman was also advising the Post Office on their investigative or prosecutorial roles. On 19 December he provided written advice entitled…

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"Review of Post Office Limited Prosecution Role”… An earlier draft of this advice had been circulated by him and commented on. In the advice, Mr Altman concluded that he had seen no evidence to suggest that Post Office exercised its investigations and…

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“… prosecution functions in anything other than a well organised, structured and efficient
manner, through an expert and dedicated team of in-house investigators and lawyers supported by Cartwright King…

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“Solicitors and their in-house counsel, as well as external counsel and agents when required. He concluded that there was no good reason to recommend that the Post Office should discontinue its prosecution role….

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“He did, however, make some recommendations for improvements.”

[Brian Altman’s role as lead counsel for the PO in the 2020/2021 appeals process at the High Court has to be investigated, surely? He had a possibly conflict of interest - acting for

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the PO which was in the position it was in partly because of advice hehad given?!]

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Beer then goes into an internal legal debated within the Post Office whereby Cartwright King had apparently asserted that theft and false accounting were equivalent offences, yet Sir Anthony Hooper, a retired Court of Appeal Judge working for the Post Office…

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… mediation scheme working group had told Second Sight that false accounting was a lesser charge. Altman wanted to make sure the PO’s position on the matter was defensible and concluded

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“the so-called 'equality' of the offences is an unnecessary and unprofitable focal point
of attention. The other issues raised by the letter have greater force and are defensible.”

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Then Beer deals with the Swift Review (postofficescandal.uk/post/secret-20…) and Post Office Chairman Tim Parker’s decision to hide it from the Post Office Board.

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[As a result of the Swift Review Altman was invited back in again to find out whether Swift’s assertion that allegations the Post Office went about leveraging unevidenced theft charges in order to bargain guilty false accounting pleas out of Subpostmasters really was…

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“a stain on the reputation of the business”. ]

Altman reviewed eight high profile convictions and concluded: “Not only is there no evidence of such a policy, there is positive evidence that such that each case was approached both by internal and external lawyers…

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“professionally and with propriety and, unquestionably, case specifically…. Not only have I found absolutely no evidence of the existence of any such policy, I have also not discovered any evidence in the cases that I have been invited to…

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“review that theft (or fraud for that matter) was charged without any proper basis to do so and/or in order only to encourage or influence guilty pleas to offences of false accounting.”

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[I am pretty sure I have seen a document whereby a PO prosecutor threatens to slap a theft charge on a false accounting charge if the Postmasters being prosecuted doesn’t indicate they’ll plead guilty. Not sure how proper that was]

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Beer then goes to some 2019 advice provided to the PO when it was in the process of heading towards settling the High Court action. This:

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“addressed the risk to the safety of convictions if Post Office entered into settlement with
any of the claimants in the Group Litigation. The advice, dated 17 July 2019 [ie after the PO failed to get the judge recused] was as follows:

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“1. Any admission of wrongdoing by the Post Office to convicted Claimants was to be avoided "as is any public apology that risks misinterpretation or the implication of an admission of fault”.

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2. There was "a real risk of Post Office taking an approach which could be interpreted as incongruous with the processes it instituted as a prosecutor”.

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3. Settlement would invite critical scrutiny not only of Post Office's prosecution function but also of its prosecutorial decision making function during the pre-trial and trial processes.

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4. Settling or seeking to settle "may be viewed as a sign of weakness, a lack of confidence in both its civil and criminal cases by the convicted claimants, as well as the CCRC, who may then be encouraged to investigate 'the technical aspects' of the case

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heard the Horizon Issues Trial evidence and seek to appeal or to make a reference, which will potentially open the settlement agreement (or the rationale underlying it) to consideration or questioning by the Court of Appeal as part of any appeal/reference …

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hearing.”

5. There was, in Mr Altman's judgment, "some risk to the safety of convictions of including convicted claimants in any settlement agreement or package”.

Well, quite.

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Finally we find out more about Lord Neuberger’s involvement in the decision to ask Mr Justice Fraser to recuse himself from the Bates v Post Office group litigation, something the Post Office recognised internally was “the nuclear option”

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[see my post on Neuberger being named back in Jan this year here: postofficescandal.uk/post/recusal-t…]

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Beer says: “On 14 March 2019 Lord Neuberger provided an eight-page written advice entitled "Bates and Others v Post Office Limited Observations on Recusal Application”….

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“Lord Neuberger advised that there were reasonable grounds for the Post Office to bring an application to recuse the judge, and that the Post Office "has little option but to seek to get the Judge to recuse himself at this stage”…

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“Lord Neuberger is subsequently noted to have attended a Post Office Board Meeting and provided advice… It was noted that Lord Neuberger could not represent
the Post Office because he was formerly a member of the judiciary…

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“Shortly afterwards, Lord Grabiner is noted to have given strong advice in conference that the Post Office should pursue the recusal application.”

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[So the biggest legal beasts in the land wanted to s*** on Mr Justice Fraser - as… what? a legal tactic?! Neuberger saying the PO had “little option” suggests so.]

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“Lord Grabiner explained that in his view if there is no recusal application made then the Post Office will lose the series of trials set up in this matter. Without a recusal application, Post Office is stuck with this judge. An appeal on the law may correct some of…

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“the very significant errors in the Common Issues Judgment, but then the case will be sent back to this Judge who has demonstrable apparent bias against Post Office and hence the firm conclusion that Post Office…

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“will lose and the financial impact of that will be substantial. Recusal is therefore essential, and Lord Grabiner asserted that in the face of legal advice from Lord Neuberger …

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that recusal should be applied for, and the quantum of damages that Post Office will pay…

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“out on a loss, then it was Lord Grabiner's view that there was a duty on Post Office to seek recusal. Lord Grabiner stated that in his view, the Board of the Post Office had no option but to seek a recusal.”

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This is absolutely amazing stuff. Wish I’d been there on Wednesday now. Yesterday we had opening statements from the Subpostmasters representatives, and the NFSP which you can read…

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here: postofficehorizoninquiry.org.uk/hearings/openi… …

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Let’s see what today brings. Proceedings start at 10am - first up is BEIS. Let the finger-pointing continue…

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Thanks for reading all this, my reporting, alongside that of @Rebeccathomson_ at this inquiry is crowdfunded. You can make a donation (and be signed up to the secret email newsletter here: postofficescandal.uk/donate/

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@Rebeccathomson_ Many many thanks. Live-tweeting of the inquiry is imminent!

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