Having just spent some time listening on BBC Sounds to the excellent series of programmes on what has been called the biggest miscarriage of justice in British Legal History, namely the wrongful prosescution of hundreds of innocent postmasters with no previous convictions, and their struggle for justice, I was able to see many parallels with the child abuse group actions that I have run over the years. The character and famous film, Erin Brockovich, was mentioned on more than one occasion. I see many parallels between her determined quest for justice and my own pursuits, often against the odds, and contrary to what many were saying at the time. Sadly, that is where the comparison ends with Julia Roberts.
For those of you who somehow bypassed the coverage of this scandal, back in the early millennium, arguably as early as 1999, the Post Office somewhat controversially did away with handwritten book entry accounts and trumpeted the introduction of a brand new computerised accounts system throughout its branches called “Horizon”. It introduced the many postmasters to a digitised system which would be able to produce a reconciliation between cash received and sales made at the end of each day, except that it didn’t work. When the many postmasters found it told them that there were deficits of several thousand pounds, contrary to what was thought by the postmasters to be correct, they were told that “Horizon is robust, and you must have made a mistake.” Rather than being given help, they were pursued for the balances outstanding, investigated, sacked, and prosecuted for theft and false accounting. Many went to prison, and some even took their own lives. It is thought that the total number prosecuted could amount to 750.
The Postmasters fight back
A group of unjustly treated innocent people who had received appalling treatment from the Post Office founded the Justice for Postmasters Alliance in 2009. Some had been sent to prison, made bankrupt, had their livelihood taken away from them, and had their lives ruined. Severe mental trauma was commonplace, leading to thoughts, and in some cases successful attempts at suicide. Thankfully, the leviathon that was the Post Office did not finish them off, quite the reverse, they fought back, achieving the interest of many MP’s, a successful group action, compensation, a reversal of many of the wrongful convictions by the Court of Appeal, a more generous redress scheme to fill in the inadequacies of the Group Action compensation, and finally a Public Inquiry.
There were several pivotal moments in the story. Firstly, evidence was given by a whistleblower, Richard Roll, who had worked upon the Fujitsu Horizon system. He revealed that the whole system was unstable and not fit for purpose, so as to refute the assertions made by the Post Office and the lie that no other postmasters had experienced problems it. The Public Inquiry revealed that during its infancy Horizon was independently reviewed and found to be designed by someone who had no idea about rudimentary mathematics, or the very basics of computer coding. Secondly, Horizon could be secretly entered by Fujitsu employees, who frequently had to correct coding flaws, and could alter data if they wished to do so, something which the Post Office had repeatedly denied. Thirdly, the very union who was meant to represent the interests of their postmaster members, turned against them and asserted that if there was any problem, it was not with the Horizon Computer system but with the postmasters, who were “spinning a yarn”.
How was truth covered up?
During the Public Inquiry, Sir Wynn Williams, chair, revealed culpable evidence that shows how the cover-up by the Post Office developed. In the early days, it was proposed that there should be an independent inquiry by Ernst & Young. When the internal legal department realised that it might mean severe damage to the Post Office brand, and the collapse of the many criminal prosecutions already in process or passed, the plan changed to an internal inquiry by Rod Ismay. He was instructed to produce a report “to understand the reasons why Post Office should be able to take assurance about the Horizon System, what are all those reasons of positives. [sic]” It was described by the chair as a “whitewash”, because that is exactly what it was. The Ismay report was then used to justify the continued prosecution between 2010 and 2013 of many innocent postmasters, some of whom would be sent to prison.
Child Abuse v the Post Office scandal – compare and contrast
So how does the Post Office scandal compare with a Child Abuse Group Action?
- Both involve severe injustices to individuals.
- In child abuse cases, the state, acting as a corporate parent, is meant to care for and improve the lives of children, whereas in reality, it permits them to be subjected to abuse by career paedophiles/sex offenders.
- Postmasters have been sent to prison, made bankrupt, and caused mental harm.
- The powerful take advantage of the powerless and punish them for doing nothing wrong.
- In the case of child abuse, paedophiles become residential care workers and usurp their power of manipulation to persuade young children to engage in illegal sexual acts.
- The Post Office, as quasi-employers, bullied the postmasters into untrue confessions, guilty pleas, and/or prison sentences after a trial whilst under the belief that they were criminals.
- Both offenders, i.e., the Post Office and the paedophiles, have no regard for the injurious effect their actions have on their victims. Both offenders think that they are doing the right thing and are not actually causing harm.
- Paedophiles believe that the children enjoy what is happening to them and that they are enjoying the “true love” that the sexual acts provide.
- The Post Office thought that their postmasters were stealing from the almighty edifice they thought their employers were and deserved the punishment that the Courts were meeting out.
- When opposing Group/Class Actions both Defendants use the wearing down/obfuscation process in the hope that the Claimants will run out of money/energy, and either withdraw or take a lower offer, so fed up are they with the misery that has been their past lives.
- The Nugent Care Group Action, which involved severe sexual and physical abuse of boys at the Children’s Homes St. Vincent’s and St. Aidan’s took 13 years and was delayed by repeated interlocutory attempts to strike the Group/Case out on the grounds that the cases were flawed and were out of time.
- In the case of the Post Office, there were repeated efforts to hide the truth that the Horizon system was flawed and not fit for purpose. Even when banged to rights by the High Court Judgment, and years of litigation, the Post Office made an offer without agreeing to pay their opponent’s legal costs, which meant that the Claimants were not left with their just deserts. The trial judge criticised the Post Office for its aggressive litigation tactics.
- In both cases, widespread cover-ups, whitewashing, and back covering have prevented the uncovering of the truth.
- The public inquiries both into the post office and the Independent Inquiry into Child Sexual Abuse have revealed examples of senior employees knowing exactly what was going on but using covert tactics to prevent the truth from coming out.
- The Post Office Legal Department have spent 20 years fighting claims in the civil courts, and failing to disclose documents that illustrate the weaknesses of their case. During their High Court civil case, they even tried to remove the judge in charge of the case on the grounds of bias, otherwise known as “recusal”, and accused an opposing barrister of contempt of court.
- In the child abuse arena, senior employees of children’s homes and elevated members of religious bodies have received complaints of abuse by abusers, yet moved abusive employees sideways to different institutions rather than referring allegations to the police.
- In both cases, the institutional defendant uses time delay to their advantage.
- In child abuse cases the law of “Limitation” as it is called, is on the Defendant’s side in that all claims are meant to be put in court by the age of 21, whereas many Claimants are aged between 35 and 50. Many victims/survivors fail to get justice without their cases even reaching trial. The Independent Inquiry into Child Sexual Abuse has recommended that the law be changed.
- In the Post Office case, there was allegedly an intentional tactic to draw proceedings out as long as possible in the hope that Claimants would run out of money, energy, or both. Indeed, some Claimants have died along the way, so stressful have the proceedings been. Avid film watchers may remember the scene in Erin Brocovich where the Trial Lawyer told Erin that the Defendants would bury her so deep in paperwork that she would not have the resources to continue.
- In both cases, there is an imbalance of funds to fight litigation – the classic David and Goliath battle.
- In Child Abuse cases, and in particular Group Litigation, there is no doubt that I could not have funded years of expensive litigation without the support of the Legal Aid Agency. Whilst at one time, under a socialist government of the 1970’s, Legal Aid was available for most of the population, under the conservative governments of Margaret Thatcher and others, most types of legal aid funding have been withdrawn. Thankfully, it remains for child abuse cases, but only the very poor are eligible.
- Legal Aid was not available to the Postmasters, despite some of them being driven into bankruptcy by the Post Office. They spent a year trying to find lawyers who would risk the millions of pounds involved in expensive High Court litigation and a 550 Claimant Group Action. Thankfully Freeths of Nottingham came to the rescue, a risk that I am not sure, I would have taken personally. The solicitors had to find After the Event Insurance, and work on a “No Win No Fee basis”. This meant that if the case had gone the wrong way, the lawyers would have lost millions of pounds. The Post Office used this to their advantage by offering a settlement without costs, which resulted in the Postmasters losing a lot of their compensation in legal fees and ATE premiums.
This whole debacle has not left lawyers bathed in the golden light of victory and glory. The old adage that the only winners in this type of case are the lawyers is unfair. The emotional and psychological toll, I can tell you from my bitter personal experience, is immense. The temptation to get on the soap box with the client is often too great, and a big mistake. Fighting for justice is laudable, but becoming emotionally involved in the subject matter usually results in bad decision making, and blurring of the boundaries which should exist between solicitor and client. In an ideal world that would be easy, but in the Post Office case, the glaring injustices caused by years of relying on defective computer software are immense. Sadly the computer cannot be taken to Court. The law has not developed that far yet…….