A Very British Scandal

Sunday National, 20th February 2022.

This week, the Welsh judge Sir Wyn Williams began taking evidence into what will prove to be the most widespread miscarriage of justice in British history. Between 2000 and 2014, 732 sub-postmasters and post-mistresses were prosecuted by their employer for crimes of dishonesty, ranging from theft and fraud to false accounting.  The Post Office based these prosecutions on a piece of software called Horizon. Supplied by Fujitsu, this accounting software was designed to track money coming into and going out of post office branches. Horizon aimed to reduce fraud. In fact, it would lead to a fraud on the criminal justice system of unprecedented scale.

From the turn of the millennium, postmasters were reporting unexplained discrepancies and shortfalls in the computing system. The figures recorded didn’t match their takings. When the software reported a shortfall at the end of the working day, sub-postmasters were expected to make good any difference out of their own pocket. If they disputed the figures, the Post Office sent them threatening letters. If they didn’t pay – they faced prosecution on the basis they must have pauchled the missing money.

In court, Post Office lawyers insisted that the Horizon software was infallible. But the paper trail now shows this was not true. The company knew the software was subject to discrepancies and failures. They decided not to share this information with employees they accused of theft and fraud. Hundreds of people were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and money must be missing, when there was clear and consistent evidence showing that the accounting system was susceptible to error.

Many of these men and women had given years of their professional lives to the Post Office. They undertook the cold and thankless task of opening early and closing late. And their employer broke faith with them in the most devastating way conceivable. Many spoke movingly this week to the independent inquiry about the devastating consequence these prosecutions had on their lives and those of their family.

Confronted with prosecutions, many of these postmasters had pled guilty. People can sometimes be sceptical about the idea an innocent person would plead guilty to a crime they didn’t commit. But in many cases, the calculations behind doing so are perfectly rational. The computer says thousands of pounds have gone missing from your branch. Dishonesty is the obvious explanation for the shortfall. And you’re the person with access to the till.

Your lawyers don’t have the tech-savvy to identify errors in the software. The Post Office hasn’t told you or the court that they know Horizon makes mistakes. In the absence of this evidence, who is the court going to believe? The apparently objective digital evidence which the Post Office has led against you – or your frantic protestations that you didn’t take any money dishonestly, and have no idea how the reported shortfalls accrued?

In these circumstances, the defence – “I didn’t do it” – is going to sound a little thin. And so many of these men and women did what any of us might have done: when their lawyers told them their cases looked hopeless – they pled guilty, hoped to receive a more lenient sentence, getting past the nightmare and getting on with the rest of their lives. Many found they could not do so, losing their liberty, losing their jobs, losing their savings, losing their houses, losing their reputations – some, losing their lives.

In April last year, the Court of Appeal in England reviewed over forty cases predicated on the Horizon data. The conclusions were damning. The “failures of investigation and disclosure were in our judgment so egregious” as to make these prosecutions “an affront to the conscience of the court.” By “representing Horizon as reliable, and refusing to countenance any suggestion to the contrary,” the Post Office “effectively sought to reverse the burden of proof,” forcing its employees to prove they didn’t steal.

When you think about miscarriages of justice case, you probably think about stories like Making a Murderer. When you think about factors which cause wrongful convictions, you might say dishonest evidence of jailhouse informants, false confessions given under duress, investigations marred by police tunnel vision, perhaps faulty eyewitness evidence implicating the innocent. You probably don’t think about unreliable digital evidence. This scandal should shake that uncritical faith.

The Horizon scandal should put our criminal justice systems on notice: there’s nothing more dangerous than evidence which is assumed to be infallible. Remember Shirley McKie. When a thumbprint attributed to the Strathclyde police officer was identified inside a major crime scene in Kilmarnock in 1997, the Detective Constable denied ever entering the house in which Marion Ross’s body had been found. She argued there must have been a mistake.

Convinced of the infallibility of this fingerprint identification, McKie was first suspended, then sacked, then prosecuted for perjuring herself by continuing to deny she’d set foot inside the murder house. But she was telling the truth. The print wasn’t hers, and it was the apparently objective process of fingerprint comparison which had failed.

There are Scottish dimensions to this story which were mostly passed over in the national media this week. How many Scottish postmasters were caught up in this scandal? We know Horizon was deployed here, but the full extent is not yet clear. In September 2020, the Scottish Criminal Cases Review Commission took the unusual step of writing to 73 individuals potentially affected by the scandal, encouraging them to refer their convictions to the Commission for review.

SCCRC chief executive Gerard Sinclair explained they were taking his unusual step “because we want to work out the scale of the problem in Scotland and do whatever we can to address it” reflecting that “many of those affected by Horizon will have had no prior experience of the criminal justice system” and the Commission wanted “anyone who has been wrongly convicted to know that a remedy is available.”

This week, the SCCRC confirmed they had received nine applications, and eight are being actively reviewed. If the Commission concludes there may have been a miscarriage of justice, they can refer the case back to the courts for a fresh appeal.

One quirk of the English criminal justice system is that a range of organisations are empowered to bring private prosecutions, including government departments. The Post Office, surprisingly, is one of the oldest private prosecutors going, dating back to the 16th century. It retained these coercive powers, even after being privatised by Vince Cable in 2011. But in Scotland, the Crown Office and Procurator Fiscal Service have a functional monopoly over criminal cases. If organisations like the Post Office believe the law has been broken – they must share their evidence with public prosecutors, who make the final call about whether to prosecute.

The evidence not only raises questions about whether these convictions are safe, but whether Post Office staff who stood over these baseless prosecutions committed any crimes of their own. As Private Eye has argued, there is one much larger shortfall in this case – in the accountability for those responsible for the scandal. Someone in the Post Office must have presented the Crown Office with the evidence implicating these postmasters in theft and fraud. Were they aware of the flaws in the accounting software? In disclosing the apparently damning evidence against these innocent people, did they tell Scottish prosecutors about the known glitches with the system which had been identified? If not, why not? There is a legal term for knowingly supplying partial and misleading evidence to courts. We call it attempting to pervert the course of justice.

Given the dramatic consequences for postmasters caught up in this scandal, given the shameless way the Post Office defended its indefensible behaviour, repressing evidence showing the known faults in Horizon – chalking things up to human error and regrettable failures in communication just won’t cut it. 

Crown Office and Police Scotland remain tight-lipped in response to press inquiries, but there is a powerful case for them to ask more searching questions of the men and women responsible, who set this unreliable evidence before prosecutors and set these Scottish prosecutions in train – under caution if necessary. The questions are simple. What did you know, when did you know it, and what did you do about it?

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