There comes a point in many investigations when you know exactly what has happened, why and who is at fault. It may not mean its end. But the essential findings are clear, no matter what’s needed to colour in the whole picture.
What happened on Tuesday at the Post Office Inquiry was such a moment. There were two events. The first was the evidence of Elaine Cottam, eviscerated here by Nick Wallis as an “obtuse, thick-as-mince, malevolent incompetent”. She displayed the attributes we have come to expect from Post Office witnesses, both internal and external: incompetence, no understanding of her job or the systems she was supposed to be administering, a lack of professionalism, convenient memory failings, a total disregard for truth, obligations to the court – whether over witness statements in civil or criminal proceedings or in this inquiry – utterly disregarded and malice, as shown by her sly attempts to slander a Subpostmaster’s husband on no evidence whatsoever. Wallis’s description could apply to pretty much all Post Office witnesses (with rare exceptions, one of whom gave evidence on Wednesday). This has been the case ever since the March 2019 Bates litigation when Mr Justice Fraser found a number of different creative ways of saying the Post Office’s witnesses were liars, without directly using that term.
The second was the revelation that the Post Office had discovered ca. 363,000 potentially relevant emails dating back to 2012 it should have – but hadn’t – disclosed. Yet another postponement would be needed. This is not the first time this has happened. There have been seven previous occasions when the Post Office has admitted failing to disclose relevant material. Seven. In the two years since it became a statutory inquiry in June 2021. As Inquiry Counsel, Jason Beer KC said, the Post Office’s conduct is obstructing the inquiry.
This is not an inquiry-specific problem. The Post Office’s failure to disclose – right from the start – the problems with Horizon resulted in malicious prosecutions and civil proceedings against subpostmasters and the misleading of various criminal and civil courts which sought to get to grips with the extent and nature of this scandal. Now it is doing the same to the Inquiry. This is no longer – if it ever was – a result of incompetence or the inevitable difficulties of extensive disclosure. This is an organisation which is simply refusing to take the Inquiry seriously, as it has refused to take seriously any of the legal processes it has abused for its own ends.
The Post Office is not fit for purpose. It is an organisation unwilling to comply and/or incapable of complying with the requirements placed on it, whether those of the Inquiry, those relating to its accounts or those imposed by Parliamentary Select Committees. It is out of control – and has been for some while.
On Thursday we learnt from Kevin Hollinrake, Under Secretary of State in the Business Department that the Post Office has discovered “operational issues” which financially prejudiced subpostmasters and for which another compensation scheme is to be set up. Yet another WTAF moment.
These repeated failings are not just evidence of the failure to comply with the Inquiry’s requirements. They are proof that everything alleged about Horizon and how the Post Office dealt with it are true. They show in the clearest possible way that the Post Office has no clue what is going on inside the organisation and that its word on anything simply cannot be trusted. Res ipsa loquitur, as lawyers liked to say – the thing speaks for itself.
What Now?
The Inquiry Judge could issue S.21 Notices holding the Post Office in contempt of court; he can make rulings; he can even write all sorts of damning assessments in his final report. But really: why grind on with this for the next few years? The Post Office is making a farce of the inquiry. It is abusing it because its endless obstruction reduces even further the chances of the subpostmasters (and their families) finding out the truth before they die, of receiving proper compensation before they die, of ensuring that those who have committed crimes face justice and so on. It is an affront to the conscience of the inquiry to allow this to continue.
The Judge is behaving as if all parties are seeking the truth. The Post Office (and its advisors) are not even on this pitch. It is playing a quite different game – seeking to delay, obfuscate and deny, to do everything possible to ensure that the truth will never be known or so late that nothing can be done to those responsible and that it becomes merely a matter of historical interest – at best.
The Judge should – but likely won’t – say that there is little point to the Inquiry: there has been enough evidence to show that the Post Office has utterly failed at all stages to implement an effective IT system, has lied about what it knew, has abused the criminal and civil justice system, and is now abusing the inquiry process. He should say that it is only the government – as its owner – which can take steps to make proper, full compensation now. It is only the government – as its owner – which can take steps to replace the entire Board, pretty much most of its senior management and many of the staff and rebuild the entire organisation from the bottom up. It is only the government which can take legislative steps to quash the convictions of everyone prosecuted by the Post Office over the last two decades. It is only the government which can take action against the Post Office’s directors, past and present. It is only the government which can take steps to ensure that Fujitsu is banned from any government work. It is only the government which can make clear to the Post Office what it must do to comply with the inquiry properly.
He should say that given how long the inquiry has been going on and the number of Post Office failures to comply, he must now assume that the government has not made this clear. He can therefore have no confidence in the competence or good faith of Post Office staff charged with complying with the inquiry and is no longer prepared to allow the inquiry – or the subpostmasters – to be made fools of in this way.
He should, in short, tell the politicians that when they own a company it is them – as owners – who are responsible for its actions. It is now time for them to take responsibility for their creature – not dump it onto an inquiry and processes (such as prosecutions for perverting the course of justice) which will take an age, if ever, to come to a resolution.
Ultimately, this scandal arises from a failure of governance – by the Post Office’s directors, certainly – but also by the politicians to whom they were and are answerable. When a publicly-owned body fails, the responsibility rests with the elected government. As does the responsibility for fixing the problems.
How and why this governance failure happened and its implications for other state owned entities will be discussed separately.
Photo by Mick Haupt on Unsplash
