January 2024 – Cyclefree

Time to stamp this out

20 January 20240Comments

At the heart of most scandals is a conflict of interest, often more than one, which has been allowed to develop, not mitigated or managed, or simply ignored. Being able to recognise these is essential to good public administration. It is essential to good legislation (an article could be written about the policy corruption inherent in governments funding lobby groups to promote policies the government wants, then consulting with only these groups who, unsurprisingly, agree wholeheartedly with the policies suggested. Scotland seems peculiarly prone to this form of cronyism.)

It is essential to good corporate governance. Many of the finance sector’s problems came from multiple conflicts of interest. Little wonder financial regulators spent so much time after it insisting on properly stringent conflicts of interest policies. If you have weak guardrails, maintaining good – or even broadly acceptable – conduct is much harder. Ethical blindness develops. Before you know it, you have a culture like that at the Post Office where investigators received bonuses for how much money they recovered from postmasters, regardless of any other considerations.

So I was intrigued to see on the Post Office’s website this information about one of its recently appointed Board members. In March 2023 it appointed Simon Jeffreys as a non-Executive Director and Chair of the Audit, Risk and Compliance Committee. It states that he is also “Chair of the Audit and Risk Committees of Emerging Markets Investment Trust plc, SimCorp A/S, a listed Danish financial services software company, and the Crown Prosecution Service.“

The Crown Prosecution Service?

On the CPS’s website in the section marked “The CPS Board” it says Mr Jeffreys is a non-executive director and the Chair of the CPS Audit and Risk Assurance Committee. He was appointed in December 2018. It goes on: “Outside of the CPS he chairs the boards of Aon UK and Henderson International Income Trust.” No mention of his role as Chair of the Post Office’s Audit, Risk and Compliance Committee.

Why not? Surely the CPS website has been updated since March 2023 when Mr Jeffreys joined the Post Office’s Board. Why, yes, it has: to reflect the appointment of Stephen Parkinson as the new DPP in November 2023. So why is Mr Jeffrey’s role with the Post Office not mentioned? Mr Jeffreys has not hidden it. It is on his LinkedIn profile. Surely the CPS has not forgotten this or tried to hide it? It has been told, hasn’t it? And approved it?

This is not just a bit of admin. It matters. Why? Given:

the possibility of prosecutions arising from the Horizon matter and the Williams Inquiry, whether of current or past Post Office staff or the Post Office as a corporate body;
the CPS has reportedly instructed Tom Little KC to advise on this;
the possibility of breaches of S.21 of the Inquiries Act in relation to the Post Office’s continuing disclosure failings in the Williams Inquiry, breaches which are criminal offences;
the Post Office having a history in this matter of aggressively challenging those authorities which seek to hold it to account (see its failed attempt to get the judge ruling against it in the Bates litigation to withdraw on the grounds of perceived bias – yes, bias – every scandal needs its ironic moment);
these are risks the Post Office faces and, therefore, something the Post Office’s Audit, Risk and Compliance Committee, which Mr Jeffreys chairs, will surely need to be briefed on and consider; and
the separate obligations the members of the CPS Board have – and regardless of how impeccable Mr Jeffreys’ professional conduct may be ….

How can it be appropriate for Mr Jeffreys to be on the Board of both entities and Chair of their respective Risk and Audit Committees?

There is no suggestion at all that Mr Jeffreys has been involved or in any of the matters which might be the subject of prosecutions. Nor that he is doing or might be doing something unlawful. The problem is that it creates the perception of a potential conflict of interest. It may create an actual conflict of interest in future. But even the existence of a perception of a conflict of interest should have made all those involved realise that this appointment was unwise. What was the CPS thinking when (if?) it approved it? The Post Office and the CPS should consider whether he can continue in either or both of these roles.

One other point. Look at how many other roles these directors have, important ones too. They do not have day-to-day operational responsibility but these supervisory committees matter. They are meant to be one way in which tough external scrutiny is applied, challenge made, questions asked. They require consideration, time and attention. The papers need careful reading, often between the lines. When challenged at a June 2023 Business Select Committee about the directors’ bonuses (specifically, the misleading statements made about these being approved by the judge heading the public inquiry) the Post Office’s current Chair, Henry Staunton, replied: “No Board member is going to read every page of a 200 page report” (see the answer to question 55, page 15).

No, chum: that’s precisely what they are paid to do. If directors want the money and glory, they should do the work. It is precisely this culture of entitlement – what Matthew Syed calls a “cultural pathology” in his blistering Sunday Times article – which allows bad behaviour to flourish, stops questions being asked, inhibits challenge or just basic curiosity, treats these jobs as comfortable, well-rewarded sinecures for a parade of part-timers, rather than necessary controls.

The Post Office’s senior independent director, Ben Tidswell, appointed three years ago, has just resigned. The government is looking for his replacement. It is a part-time post: 2 days a week at a salary of £40,000 p.a. Given the Post Office’s current challenges, how can a director – even one without day-to-day operational responsibilities – really fulfil properly his or her corporate legal responsibilities? This approach seems to follow a pattern. After all, it was Mr Staunton’s predecessor, Tim Parker, Chair 2015 – 2022, who thought he need only spend one and a half days a week on this job. This was during the time when much of the most egregious behaviour for which Ms Vennells is now being blamed occurred. Perhaps he was too busy with one of his other jobs, Chair of HM Courts and Tribunals Service, part of the Ministry of Justice (“ensuring justice for everyone” its mission statement). How did that job go, Tim?

Let’s look at one step which was taken during Mr Parker’s Chairmanship. After the third “Common Issues” judgment in the Bates litigation, the Post Office sought to get Mr Justice Fraser to recuse himself. In making the application, the Post Office’s barrister, Lord Grabiner KC, said:

“This is regarded as an extremely serious application to be making. It was made at board level within the client and it also involved the need for me to be got up to speed from a standing start. And I am not the only judicial figure or barrister that has looked at this… It has also been looked at by another very senior person before the decision was taken to make this application.”

That “very senior person” turned out to be Lord Neuberger, former President of the Supreme Court. Would it be too cynical to wonder whether Tim Parker’s role as Chair of The Courts and Tribunals Service had anything to do with this?

That was then. The Williams Inquiry may get to the bottom of what went on. But now the CPS and the Post Office should think again about who they have on their Boards and why. As always, the question to be asked is not: “Is this legal?” But: “Is it wise?”

A constitutional outrage? Or a resolution of sorts?

11 January 20240Comments

The announcement of a law to overturn the subpostmasters’ convictions has provoked some concern amongst m’learned friends, on constitutional grounds. Are these concerns valid? Why is the government in this position?

The Dilemma

If every convicted subpostmaster in the last 25 years applied to the Criminal Cases Review Commission (“CCRC“) to have their convictions reviewed and referred to the Court of Appeal, even if they started tomorrow, it would taken an inordinately long time to deal with them (even if the Post Office did not object, which it has been doing for some). Many subpostmasters would likely die before their cases are heard; their lives would still be blighted in the meanwhile. They would have to wait for the convictions to be quashed before getting compensation. Some may simply refuse to get involved with the justice system. Who can blame them, given their experiences thus far.

There are other questions too. Who pays the costs? What about those who pleaded guilty because they were bullied into it? What about those who have died? Or those who paid money they did not owe in order to avoid prosecution? Do they get the money extorted from them under false pretences repaid?

This matter has lasted a quarter of a century. It is unconscionable to drag it out still longer. Speed is essential if justice is to be done. And it is justice which is needed now – not endless legal arguments.

Could there be a mass appeal via the normal legal process? Possibly. But would it be any quicker? Where are the resources to do it?

Unprecedented?

The main concern has been the worry about setting a precedent: the executive and legislature should not interfere with the judicial process. If these convictions are overturned by Parliamentary fiat, what is to stop a future unscrupulous PM using a large Parliamentary majority to absolve friends rightly convicted? (That faint echo you hear is Owen Paterson, Boris Johnson and those MPs rushing to say that the Standards Committee’s findings could be ignored because, well, just because.) The boundaries between the executive, legislature and judiciary are important ones. It is not daft to worry about a rush to breach them. They exist for good reasons.

But.

The legal system

A touch of humility from the legal fraternity is needed. More than a touch, in fact. This miscarriage is in large part due to multiple failings over years by lawyers and the legal process, starting with the Law Commission (which recommended the computer law change – explained here and here), via investigators, in-house prosecutors, members of the external Bar, defence lawyers, judges, those supervising or reviewing or even noticing the activities of those bodies with statutory prosecution powers (was anyone doing this? A question for the Ministry of Justice, perhaps), the CPS (to the extent it was involved), the lawyers responsible for non-disclosure, those who failed to blow the whistle (in breach of their professional duties and those owed to the courts), those advising the Post Office’s Board on its corporate law obligations, those relating to prosecutions and civil litigation and those owed to the Williams Inquiry and ending with the judiciary which did nothing about a senior retired Law Lord advising on how to get rid of the judge hearing the Bates litigation for no reason other than the Post Office’s annoyance at not getting its own way.

The legal system does not come out of this story well, however much praise is now due to those lawyers who have worked tirelessly to expose the scandal and help its victims. It is, frankly, a bit much for it to ignore all this in the rush to preserve constitutional proprieties. Doing right is what is needed now, followed by extensive reflection on its own part in this abysmal affair.

How might this be done?

It is not correct to say that there is no Parliamentary interference with the judicial process. The Attorney-General has always had the power to discontinue a prosecution in the public interest – nolle prosequi – and, in exercising this power, is answerable to Parliament not the courts. It is true that this power is only exercised before a court judgement. After, the normal route is an appeal against conviction or, exceptionally, a pardon. But note one important fact about these options: in both, a crime has been committed. But it is decided that either the wrong person has been convicted or that, for reasons of public policy, even though they had committed it, the law was unjust (e.g. pardons of soldiers for cowardice in war-time or gay men for now lawful sexual behaviour). There was a crime though.

No prima facie case

Here, we cannot say this. This is not overturning convictions because the wrong people were convicted. But because there never was any crime. There never was any money missing. The alleged “missing” monies were figures plucked out of Horizon’s behind. If this had been known at the time, would there have been prosecutions? Could there properly have been any? Wouldn’t the A-G have issued a nolle prosequi order, if the prosecutions had not been halted by the Post Office? In effect, what is being proposed now is a retrospective nolle prosequi, a finding that the prosecutions were, as the Court of Appeal has already ruled, an affront to the conscience of the court. They should never have happened because there never were any crimes to be prosecuted (as some of the Post Office’s own documents revealed to the Williams Inquiry now show). As for those prosecuted on non-Horizon evidence, based on what the Inquiry has uncovered about the conduct of Post Office investigative/prosecuting staff, no reliance can be placed on any of their work.

Why this option?

For years the criminal justice system has been underfunded. Plenty have warned of the consequences; these have been dismissed as special pleading, alarmist or unimportant. The CCRC was seen as so unimportant that it has a part-time Chair with eight other jobs, including Head of the Judicial Appointments Commission (the CCRC’s conflicts of interest policy having been lost in the post, presumably). It is why, when the Andy Malkinson case – itself one of the most serious miscarriages of justice of recent times, involving as it does, the conduct and professionalism of the CCRC itself – hit the news last summer, we were treated to the spectacle of its Chair promoting her holiday home business in Montenegro.

We see the result of this under-resourcing now: an inability to follow normal processes in a timely way; unpalatable options.

Why the rush to act? Why – because of the endless delays and denials by government and its wholly owned entity, the Post Office, only finally shamed into action by a TV drama and the consequent public outrage.

Underinvestment, a lack of professionalism, denial and delays. There are some lessons in there for governments. And the legal world. Perhaps they might heed them this time. Perhaps.

Abuse of Power

4 January 20243Comments

In episode 1 of Mr Bates vs The Post Office, there is a scene in which Alan Bates’ wife tells him she has a job.

“Teaching?” he replies.

“No. Cleaning houses.”

They need the money to make ends meet. They have lost their savings and business.

He gives her a look – of love, gratitude & a hint of humiliation at what they’ve been reduced to and then – quietly but with determination – he says:

“I’ll get those bastards.“

It is a wonderful piece of writing and sublime, subtle acting, especially by Toby Jones. It captures both the humiliation inflicted on innocent people by the powerful and the former’s determination not to be ground down. It is about the subpostmasters. But like all good drama, including that based on real life, it shows something universal.

Those sentiments have been echoed before. They will, I am sorry to say, be repeated in the future. Because abuse of power is hard to eradicate. The powerful have no interest in doing so; the powerless find it hard to do so.

This abuse of power by the state or its organs has happened so many times before. This story about the Post Office is not an appalling one-off. It is only the latest of a series of scandals going back at least 60 years.

In so many ways, the misbehaviours exhibited by the Post Office are similar to those exhibited by the Coal Board in the Aberfan tragedy, by the police in Hillsborough, by the government in the blood contamination scandal and Windrush, by the NHS in numerous medical scandals, and in many others.

See https://www.cyclefree.co.uk/the-price-of-indifference/.

The substance may be different but the misbehaviours by the powerful are so very similar:

– the refusal to listen to concerns
– the lies and cover ups
– the stingy callous approach to apologies and compensation
– the refusal to accept responsibility
– the avoidance of accountability.

There are two behaviours above all which are repeated. The first is the arrogance of indispensability.

It is this which leads to the abuse of power which lies at the heart of the actions taken. The Post Office’s conduct over nearly two decades might best be described as a rampage of extortion with menaces, based on lies.

It is enabled by those who allow such organisations to behave as if they are unchallengeable. As if they are “Too Big To Fail” or “Too Important To Fail“.

It is abetted by such organisations being put by voters on a pedestal of some kind or trusted too blindly: the Post Office as a twinkly, trusted “Postman Pat-At-The-Heart-of-The-Community” who could not possibly do any wrong. Or the NHS. Or the police – who have often confused the vital importance of policing as a function with the importance themselves as an institution so making it much harder to challenge bad policing.

In this, these organisations have echoed the stance taken by much of the City in its pre-financial crash glory days, when it gave the impression that it was so lucrative and therefore indispensable that it could do whatever it wanted with little real regard for the rules. It was an attitude enabled by politicians so delighted at the large tax revenues that they ignored the dangers of the overmighty barons of that time.

And the second?

It is an indifference to ordinary people, to the human consequences of misbehaviour, to the impact on others.

This quote from the above article explains so much about the Post Office’s & government’s obduracy about putting this right.

“There is the indifference which can be one of the causes of a problem. But what is often worse is the indifference shown to victims after problems have arisen. It is hard to understand the callousness of some decisions. Perhaps it is made easier by forgetting or ignoring those who are affected.

It feels like indifference to those on the receiving end. But perhaps its impulse is less the effect on the victims but more a desire to save face by those responsible……

It harms an institution’s self-image and, often, of senior people within it. “We got it wrong.” is hard to say. If “we get it wrong” what sort of a “we” are we, really?”Avoiding the shame of having to admit that your actions or inactions have been responsible for the suffering of others is what drives this defensiveness and indifference.”

You see this in the evidence given by Post Office staff in the Williams Inquiry.
You see it in the evidence given by the Post Office’s internal and external lawyers.
You see it in the response at Board level, which also manages to suggest that criticisms of its staff are somehow unacceptable and unfair and unkind, as if they were the true victims. The combination of arrogance and narcissism must be hard to bear for those who really have suffered.
You see it in the response by the government. It gives the impression of being a random passer-by at the scene of accident caused by complete strangers ineffectually using a hankie to mop up blood and expecting huge thanks. In reality, it is the owner and funder of the Post Office and without its say-so and money the Post Office would cease to exist overnight.

What you also see in those other cases is how those responsible for harm done to others got away with it, were not made accountable, suffered no adverse consequences.

We are seeing that in this case too. Look at all the senior people in the period between 2000 – 2012 (when Paula Vennells was appointed CEO) when prosecutions were happening despite the knowledge that senior people in the Post Office, Fujitsu and government knew about Horizon’s difficulties and deficiencies. Look at how they have flourished in well paid jobs with their time in charge of an organisation at the heart of the worst miscarriage of justice in English history airbrushed away or ignored.

It feels as if this is more of the same: the powerful abusing the powerless. Because they can. Because they know they are untouchable. Because even if disciplinary or civil or criminal proceedings are brought, those Post Office prosecutors, investigators and lawyers, external lawyers and Fujitsu employees and others will benefit from the protections and rights and compliance with the rules and a fair trial which the Post Office denied the subpostmasters. We know why they should get those protections. But to those who have suffered as a result of their actions, it must feel like yet another unfairness to be added to those they’ve already endured, another example of how the powerful benefit at the expense of the powerless.

Will those who did wrong be held to account this time?

And what about those others who set up the structures or took decisions or made laws which enabled this scandal to happen: the Ministers, the civil servants, the Law Commission, the MPs?

What sort of accountability should they face?

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An Affront to Our Conscience

1 January 20240Comments

This evening there is the first episode of a four part drama – Mr Bates vs The Post Office. It is a must see, if only in the hope that it will bring home to a wider public the scale and human impact of what has rightly been called the worst miscarriage of justice in English legal history. It is to be hoped that such public interest might put pressure on politicians to put right – and without further delay – matters which are – or should be – an affront to the conscience of the British state.

It is shaming to see from the evidence given during the statutory public inquiry headed by Sir Wyn Williams how so many from my own profession behaved so unprofessionally, incompetently and potentially worse, both during the events which are the subject of the Inquiry and during the Inquiry itself.

If there is one thing to learn from it, it should be a reminder that practising law or carrying out investigations without any understanding of the ethical underpinning of one’s work and the necessity of ensuring that this informs everything you do is wrong. This is not what true professionalism requires. The question is never “Can I do this?“. But “Should I?“.

It is correct to say that this is the worst miscarriage of justice. But this description underplays the nature of the scandal. In reality, this is not just a scandal about the Post Office exploiting some flawed accounting software.

It is a scandal about the development of flawed hardware and software systems, a flawed governmental and corporate procurement process and a flawed adoption and rolling out process.
It is a scandal about how the Post Office, a state owned body with unlimited resources and its own prosecution service, operated with no effective corporate governance or Ministerial control or supervision and exploited flawed software, flawed contracts and the civil and criminal legal systems to extort money it was not owed from subpostmasters.
It is a scandal about how the legal system failed – and continues to fail – to understand technical evidence.
It is a scandal about how the legal system has failed for far too long those accused and convicted of crimes which did not happen. As the government’s own Compensation Advisory Board has said: “the justice system itself is called into question in the current circumstances.”
It is a scandal about a failure of Parliamentary and Ministerial governance.
It is a scandal about how the state fails to put right its mistakes and compensate those harmed by those mistakes.

Ultimately, it is a story about the abuse of power.

There are so many aspects to it that it can be hard to get your head round all of it. But these articles are an attempt to summarise some of the key issues. A work-in-progress, obviously. But I hope helpful.

1. An overview

2. The Business Secretary’s role

3. Compensation

4. Revelations from the Williams Inquiry

5. Ministerial and corporate governance of the Post Offiice

6. The reliability of computer evidence and how the Law Commission got this wrong

7. What Parliament did and did not do

Time to stamp this out

A constitutional outrage? Or a resolution of sorts?

Abuse of Power

An Affront to Our Conscience

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