The postmasters criminal cases: perverting the course of justice?

by Jeremy Dawson

For Nick Wallis's book, The Great Post Office Scandal (GPOS), to which I refer, see https://bathpublishing.com/products/the-great-post-office-scandal-first.
It's described - appropriately, in my opinion - as "An extraordinary journalistic exposé of a huge miscarriage of justice"

The Williams enquiry transcripts are available under https://www.postofficehorizoninquiry.org.uk/hearings. For this piece I've looked only at 14 to 25 Feb (and not thoroughly).

Paul Marshall, in a speech to the University of Law in London on 3rd June 2021, "Scandal at the Post Office, the Intersection of Law, Ethics and Politics", see https://www.postofficetrial.com/2021/06/marshall-spells-it-out-speech-to.html says

... some Post Office lawyers knew of information that would have provided a defence to defendants. Other lawyers knew of information that would have enabled convicted defendants to launch appeals to the Court of Appeal long, long before March 2021. I hope that some of them may end up in prison for perverting the course of justice.

Subpostmasters were told that they were the only ones suffering from apparent unreliability of the Horizon system

In his GPOS book, page 64, Nick Wallis says

Over the 14-year period the Post Office was prosecuting people, dozens of Subpostmasters have reported they were told by Post Office contract managers, investigators and helpline operators that they were the only ones having problems with Horizon.

I found examples of this, too many (25) to list, mentioned individually in Nick's book (GPOS) or the transcripts of the two weeks 14 Feb to 25 Feb 2022 of the Williams enquiry.

Furthermore, of a meeting of around 20 to 25 former Subpostmasters (GPOS, pg 98), one says

'The main thing I remember was all of us saying how we'd been told that we were the only ones having problems with Horizon. The Post Office investigators told me I was the only one having problems with Horizon, and most of the people in the room at Fenny Compton had been told exactly the same thing.'

Sir Wyn Williams, in the first focus group of his Post Office Horizon IT review, in January 2021, said (see GPOS, pg 454)

he was 'not very happy' to hear Shann's account of repeatedly being told she was the only person having problems with Horizon, adding that if it was or had been replicated around the country, 'then it's not too strong for me to say that that would be reprehensible.'

Now in these accounts it is generally unclear whether these false statements were made in the context of pending or possible litigation, or (for example) simply made by lazy Horizon IT help desk staff. What I say assumes the former, and also that these false statements were made knowingly or recklessly.

The decision of the High Court of Australia (Australia's highest court) in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/41.html concerned a prosecution for attempting to pervert the course of justice.

In para 21 of the majority judgment it was said

There appears to be no reported authority in the British Commonwealth to the effect that a person who improperly influences an accused to plead guilty to an offence is guilty of attempting to pervert the course of justice.

The Post Office agreed to drop some charges if no issue was made of the reliability of the Horizon system

In the evidence submitted by Ian Henderson to the BIS Select Committee at https://committees.parliament.uk/writtenevidence/6580/html/, at para 3.3(e) he found in a particular case that "The Prosecution insisted that as part of the agreement to drop the charge of Theft, that no mention of alleged problems with the Horizon computer system would be made."

Likewise see Second Sight's Final Report, quoted in GPOS, pg 277, "We have also been told of agreements whereby no mention was to be made in court, by the defendant, of any criticism of the Horizon system".

In the appellants' submission in Hamilton (GPOS, pg 458)

plea bargain deals were routine, and that even when theft charges had been dropped, a guilty plea to false accounting might only be accepted by the Post Office 'if the defendant confirmed in writing that "there is no criticism made towards the functioning and reliability of the Horizon system." '

Again the Australian case of Meissner (above) is relevant: in para 21 of the judgment of Dawson J,

Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper.

If he alters his evidence or will not give it 'through affection, fear, gain, reward, or the hope or promise thereof' ... the course of justice is perverted.

A jury should be directed that a threat (or promise) made to a witness is ... an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence

Incentives to plead guilty although not guilty

There are two categories of this:

• Lesser sentences following guilty plea ("sentence reduction")
• Dropping of more serious charges upon a guilty plea to lesser charges ("charge reductions")

In an adjournment debate at Westminster Hall in Dec 2014 (see http://becarefulwhatyouwishfornickwallis.blogspot.com/2014/12/transcript-of-westminster-hall-debate.html) this is said

"The more it goes on, the more we will hear of sub-postmasters ending up in prison or declaring guilt for something that they have not done in order to avoid a custodial sentence. That is not how justice works in this country and it is not how justice should be seen to be working."

There is a discussion of this by Rebecca Helm, referring primarily to the postmasters, at https://evidencebasedjustice.exeter.ac.uk/false-guilty-pleas-and-the-post-office-scandal/

In a journal article the same author discusses these incentives to plead guilty in detail. See "Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial", Journal of Law and Society, 46(3), 423-447. https://onlinelibrary.wiley.com/doi/10.1111/jols.12169

The "sentence reduction" incentive is according to sentencing guidelines, see https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/reduction-in-sentence-for-a-guilty-plea-first-hearing-on-or-after-1-june-2017/ though apparently a sentence reduction of up to one-third for pleading guilty can change a prison term to a fine.

Whether or not this is an excessive incentive, it is under the control of the courts, and done according to these set guidelines. Except for the following clue as to what may actually go on.

At http://becarefulwhatyouwishfornickwallis.blogspot.com/2011/02/whats-up-at-post-office.html (under (3) Simon in Norfolk)

She intended to plead not guilty to all charges but the barrister told her that the Post Office would look for a custodial sentence if she was found guilty

The "charge reduction", on the other hand, is up to the prosecutors, not the court.

There is a Code for Crown Prosecutors at https://www.cps.gov.uk/publication/code-crown-prosecutors which says

6.3. Prosecutors should never proceed with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never proceed with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

Again, there are numerous cases of this either in the GPOS book or in the transcripts of the Williams enquiry.

Ian Henderson of Second Sight found

In some cases, those criminal charges do not seem to have been supported by the necessary degree of evidence and have been dropped prior to trial, often as part of an agreement to accept a guilty plea to a charge of false accounting, so long as the defendant agreed to repay all of the missing funds.

This is also mentioned in 3.3(b) of Ian Henderson's evidence to the BIS Select Committee (referred to above).

On page 458 of GPOS is quoted a barrister, Tim Moloney, in the Hamilton appeals, referring to

an express intention to add charges of theft to an indictment alleging false accounting if those charged with false accounting did not plead guilty

If any seeks a trial, then I will add charges of theft

So they said "If you don't plead guilty, we're going to add the theft charge and escalate it to the Crown Court and you can be facing seven years in jail".

In one case, Scott Darlington (Williams enquiry, transcript 17 Feb, pg 123) it appears that the Post Office disclosed, by mistake, advice that they did not have sufficient evidence for the theft charge which they had laid.

In para 22 of the majority judgment in Meissner v The Queen (above) it is said

If a plea of guilty ... is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.

Other prosecutor misconduct

I noticed some other (hopefully) less common examples of misconduct by prosecutors in GPOS and the Williams enquiry transcripts.

Suzanne Palmer (Williams enquiry, transcript 23 Feb, pg 56) said "they [the Post Office legal team] said if she gives evidence on my behalf they will prosecute her as well". The cases of Kellett and Meissner mentioned above show how this is clearly an attempt to pervert the course of justice.

I noted two cases recorded where the Post Office told potential witness that they could not speak to the defendant. These were Nicki Arch (GPOS, pg 358) and Lisa Brennan (Williams enquiry, transcript 15 Feb, pg 51). The lawyers' expression here is "property in witnesses": there is none. That is, neither side can "own" potential witnesses, or can be entitled to exclusive access to them. In the case Connolly v Dale, see https://swarb.co.uk/connolly-v-dale-qbd-11-jul-1995/ it was said

Interference with witnesses or potential witnesses by threat, promise or subsequent punishment is a contempt: R v Kellett, Attorney General v Butterworth. In our judgment, the concept of interference with witnesses extends to interference with proper and reasonable attempts by a party's legal advisers to identify and thereafter interview potential witnesses.

UPDATE: An enquiry report ACT-Board-of-Inquiry-Criminal-Justice-System-Final-Report-31-July-2023.pdf, which was so critical of the ACT Director of Public Prosecutions that it led to his resignation, says (at para 544, and see para 545)

Any direction to sequester a police witness from the defence would have been improper because it is a fundamental principle that no party can claim property in a witness. The principle is so critical that it is embodied in the rules governing the ethical practice of a barrister.

Postscript: Fujitsu

The following post has just appeared https://www.postofficescandal.uk/post/treasury-announces-compensation-for-555-civil-litigants.

Briefly, the Government intends to go after Fujitsu to "tackle compensation". Just to make it clear, none of the misconduct recounted above, or its consequences, can be blamed on Fujitsu. Nor can the fact that the Post Office continued to pursue subpostmasters when it was clear something was wrong, as when

• multiple subpostmasters reported the same problem
• when its own trainers or managers reported problems they couldn't understand
• discrepancies doubling when subpostmasters followed helpline instructions