Post office counters injustice inquiry prompts claim for consultation on terms of reference
Here is a curious story but deserves a little attention. This long-running scandal remains stubbornly below the radar but at last the Inquiry is getting under way. The trouble is that the Terms of Reference and set-up of the exercise is felt by those affected to be too narrow and fails to provide safeguards to ensure that all the relevant evidence emerges. In a letter-before-claim, the campaigners demand consultation about the terms of a re-launched Inquiry. This is an interesting use of consultation – but makes a lot of sense. So many high-profile investigations (such as on the Hillsborough tragedy, Grenfell Towers, or the Manchester Arena bombing etc) collapse into bitter recriminations about the shape and scope of Public Inquiries. A degree of consultation about such terms of reference may sound bureaucratic, and would clearly be of greatest relevance to key stakeholders and the families of victims. But it would do wonders to convince hurt and angry people that the cards were not being stacked against them. Consultation is versatile and can often be an effective confidence-building measure. Might a Court support such a claim? I suspect not ….
The subpostmasters were blamed for unexplained accounting losses, with some sent to prison, because of errors in the government-owned Post Office’s Horizon system, which is supplied by Fujitsu. They are calling for the current inquiry to be stopped and restructured.
Following a December 2019 High Court ruling that vindicated subpostmasters, prime minister Boris Johnson promised an inquiry. However, the Post Office Horizon IT inquiry, chaired by former High Court judge Wyn Williams, which was subsequently announced does not have the status of a statutory inquiry, meaning it cannot compel witnesses to attend. This has been described as a “whitewash” by subpostmasters and “a cynical cop-out” by campaigning peer James Arbuthnot.
The Justice for Subpostmasters Alliance (JFSA), which campaigns for justice for those affected by the Horizon scandal, wants the inquiry to be made statutory, with powers to call witnesses under oath and demand documents, amid fears the current plans will allow the government to “brush it under the carpet”.
JFSA founder and former subpostmaster Alan Bates has sent a formal legal letter, known as a pre-action protocol letter, to Paul Scully, the minister responsible for the Post Office in the Department for Business, Energy and Industrial Strategy (BEIS), informing BEIS of plans to take it to court over the current inquiry.
“Please treat this letter as a pre-action letter within the pre-action protocol for judicial review,” reads the letter from JFSA solicitors Howe & Co.
“Our client intends to challenge the decision dated 9 March 2021 of [BEIS] refusing to pause the current non-statutory Post Office Horizon IT Inquiry, to re-establish this inquiry as a Statutory Inquiry and to hold a consultation on the terms of reference, to take account of pressing matters of public importance, including inter alia the question of abusive prosecutions of subpostmasters.”
The letter to BEIS is the first formal step in seeking a judicial review, where a judge will review the lawfulness of the current Horizon inquiry, but not be limited to that alone. This could see the current inquiry paused.
“Mr Bates believes that a non-statutory inquiry (even with revised terms of reference) would not enable obvious and significant matters of public concern to be properly investigated. This is because, inter alia, a non-statutory inquiry has no power to compel the attendance of witnesses or compel the production of evidence, and nor does it take evidence under oath,” reads the letter.
“It is unlikely that witnesses from the Post Office or Fujitsu would voluntarily give evidence as to those parties’ involvement in the scandal, their knowledge of the flaws in the Horizon system at the time that the demands for payments to the subpostmasters were made or their role in the prosecutions of hundreds of subpostmasters on unreliable and potentially perjured evidence.”
According to a JFSA email to subpostmasters, BEIS has until the middle of April to decide “as to whether or not to volunteer to restructure the current whitewash [inquiry] as a statutory inquiry, and if not, we will have to apply the court.”
“For years now the Post Office, BEIS and teh giovernment have demonstrated time and again that they can’t be trusted and it only seems to be the judiciary capable of bringing them to account,” added the email.
A Computer Weekly investigation in 2009 revealed the stories of subpostmasters who suffered losses they said were due to errors in the retail and accounting software they use in branches, known as Horizon. The Post Office denied this, and around 900 subpostmasters were prosecuted for theft and false accounting, with some being sent to prison, in what has become one of the biggest miscarriages of justice in UK history (see timeline below).
Subpostmasters were proved right in the High Court in a multimillion-pound group litigation action against the Post Office.
In a letter sent on 3 February, the JFSA, also through its solicitor, requested a meeting with prime minister Johnson to discuss concerns over the weakness of the inquiry in its current form.
Had it not been for the group litigation action against the Post Office, which subpostmasters funded, the harrowing stories of subpostmaster suffering and damning evidence against the Post Office might never have emerged.
Bates said the only way to get to the bottom of the scandal is through disclosure and the calling of witnesses under oath. During two trials in the group litigation, which Bates led, evidence became known that had previously been denied.
For example a document, the Known Errors Log, emerged in court, which revealed thousands of Horizon bugs. Previously the Post Office had denied any errors and even that the Known Errors Log actually existed.
The judgments made by Judge Peter Fraser in the High Court were damning of the Post Office’s attitude to possible Horizon errors causing unexplained losses. He said the Post Office was wrong to blame subpostmasters and that it had been oppressive in its tactics to get subpostmasters to pay back apparent shortfalls.
The Post Office conceded and agreed to pay £57.75m to subpostmasters and apologised for its behaviour. There were immediate calls for a full public inquiry.
It was also after the judgements that the Criminal Cases Review Commission (CCRC) sent 47 cases of potential wrongful prosecution of subpostmasters to the Court of Appeal to potentially have their criminal records quashed. This has since risen to about 50, including six that have already has their convictions quashed at Southwark Crown Court.
This week has seen the appeals of 42 former subpostmasters heard, with judgments expected on Friday 23 April. The latest revelations in the Court of Appeal during the hearing will strengthen calls for a statutory public inquiry into the Post Office Horizon scandal. These include evidence that Post Office staff were told to shred documents that could undermine its stance that Horizon was robust, as well as a document that revealed a lawyer working for the Post Office had informed it that a Fujitsu witness had misled the court during prosecutions of subpostmasters.
Without legal disclosure, this might never have been known.
During the hearing Sam Stein, a QC representing five subpostmasters appealing for their criminal records to be quashed, referred to the current government inquiry. He said: “The Post Office Horizon IT inquiry is of itself limited. It is limited through its own terms of reference to excluding the Post Office Limited’s prosecution function or matters of criminal law. That means, sadly, that the Post Office IT inquiry, a non-statutory inquiry, will not be examining the matters that are before this court.”
Article originally appeared on Computer weekly.
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