How does one explain the Post Office Horizon scandal, now described routinely as the greatest miscarriage of justice in English legal history? Is it a straightforward matter of identifying the villains for public vilification? Or is a special explanation required for justice to be miscarried on such an exceptional scale?
In fact, the scandal is at once both simple and complex: the result of culpable individual failures, but also a failure of the legal system. The Horizon IT system was often defended by the Post Office as being “robust”. It was not, but what explains the extent of the scandal was that the legal system of England and Wales was not robust either. Both the IT and legal systems were inadequate, and, with both systems, those who knew better pretended otherwise.
Between 2000 and 2014, hundreds of innocent sub-postmasters and sub-postmistresses were held to be liable for non-existent accounting shortfalls recorded on a faulty IT system. For some, this meant heavy personal losses and bankruptcy; for others it also meant criminal convictions; some of those caught up in the scandal have since committed suicide. There seem to have been around 900 convictions that relied on the now-notorious Horizon system, though nobody knows for certain.
At the heart of the scandal was a botched public sector IT procurement process; the implementation and running of the system were then mismanaged. In this respect the procurement of the Horizon system was no different from many other witless multi-million-pound IT acquisitions by state entities. Like political careers, almost all public sector IT projects end in failure.
Nor were the failures of the state entity to accept and admit that the IT system was inadequate unusual. Almost no major government IT procurement is transparent. Secrecy and supposed “commercial confidentiality” prevent information from being freely available, despite the public interest. The true horrors of public sector IT procurement in the United Kingdom will probably never be fully known.
And when the IT system faults become plain and indeed overwhelming, the urge to cover-up and evade disclosure is also common with senior managers. Lawyers are instructed to make the problems go away, often with aggressive litigation tactics being approved at director level. Nothing about how executives and advisers dealt with the Horizon calamity will surprise anyone who is aware of how the public sector and its contractors deal with (and fail to deal with) poor procurement and project management.
But what makes the Post Office Horizon scandal different from most other public sector fiascos are two features. The first is the context of a public body with an enthusiastic willingness to bring criminal prosecutions and civil claims against individuals on the basis of the outputs of its IT system. The second is how the legal system of England and Wales made it easy for those criminal and civil legal actions to succeed—and almost impossible to challenge, let alone reverse them. One system failure thereby exposed another system failure.
To begin with, it is a rule of evidence for the courts of England and Wales that computer records will be presumed to be accurate, unless the defendant can show otherwise. In effect, this means “computer says guilty”.
This presumption was not always the case, and before 1999 the Police and Criminal Evidence Act 1984 provided that in criminal cases the presumption was the other way around. But just as the world was becoming even more dependent on computer software, the government blithely accepted a clumsy and ill-informed Law Commission proposal to repeal the 1984 provision.
But what made the legal situation far worse for the Post Office defendants was that they had no real chance of accessing the internal error logs that would have enabled them to rebut the presumption and show that the computer records were unreliable. The key documents simply were not disclosed.
Post Office lawyers and managers either refused to disclose the records or did not know of their existence elsewhere in the organisation. In either case, the grim combination of the evidential presumption and disclosure failings made it impossible for the defendants to get a fair trial.
Even this might not have caused a widespread problem if prosecutions were occasional. But instead the Post Office was prosecution-happy. Almost every year between 2000 and 2014 scores, if not hundreds, of private prosecutions were brought by the Post Office on the basis of Horizon evidence. The Post Office boasted of being one of the oldest bodies to investigate and prosecute crimes, dating this practice to the 1600s. Being able to prosecute—and often—was something the Post Office took pride in.
But these were usually private prosecutions, which meant the cases did not go through the Crown Prosecution Service. These private prosecutions had no independent scrutiny and approval before the unlucky defendant was taken to court. The Post Office would then be the prosecutor in its own cause, with no external checks on its prosecution decisions.
About 900 prosecutions were brought over the course of 15 years on the basis of data which the Post Office organisationally knew to be flawed. It was only in 2014 that this routine prosecution of sub-postmasters came to an end.
The Post Office also employed an unpleasant tactic to secure convictions. A defendant would be (over) charged with theft, even though there was not sufficient evidence to make that offence out. To escape prosecution as a thief, the unfortunate defendant would plead guilty to the lesser offence of false accounting. As such, innocent defendants accepted criminal liability so as to escape a heavy sentence.
When, after 2014, it was becoming more apparent that there were serious issues with the Horizon evidence, a report was commissioned which detailed the problems, but Post Office executives rejected its findings. That word “robust” was used again and again by the Post Office as a party line about the Horizon system—to ministers, to parliament, to the media, all of whom could do little more than rely on what they were being told. The Post Office was now segueing from wrongful prosecutions without proper disclosure to full-on denialism at the highest level.
And this is how the situation might have remained but for three things, none of which were inevitable. The first was that the injustices got the attention of the blogger Nick Wallis and dogged reporters in parts of the press. Blogpost by blogpost, and article by article, the nature of the scandal was unfolded as new material came to light.
The second was that a determined group of individuals affected by the disaster managed somehow to get a “group litigation order” (GLO)—a rare form of class action, which made it possible to meaningfully sue the Post Office for the loss and damages that had been suffered. This group litigation order, however, required external funding to pay for the extensive work by lawyers—especially because of the hardball litigation strategy adopted by the defendant Post Office. This meant, in turn, that whatever monies were paid by the Post Office, a good deal of what was received would have to go to funders and lawyers.
Given the Post Office’s aggressive approach, such a claim was at best risky—there was no guarantee that it would succeed. Indeed, against a combative and well-resourced defendant there was a strong chance of failure, even with this class action. But the claimants had no real choice: this was the only way the Post Office could then be legally held to account.
The third was the greatest stroke of luck. The case was allocated to a high court judge called Sir Peter Fraser, who turned out to be more than a match for the Post Office lawyers. In two long detailed judgments in 2019—both of which are forensic masterpieces—he patiently and comprehensively dismantled the Post Office case and catalogued the Horizon errors. Without those two judgments nothing which then followed could have happened.
There had been some justice, but only of a sort
The Post Office had taken fright at the sight of this judicial juggernaut. It had hired perhaps the most expensive barrister in the land to suddenly apply for Mr Justice Fraser to recuse himself from the case for apparent bias—a bizarre legal ambush timed to undermine the hearings. The Post Office even sought advice from a retired president of the Supreme Court on how to derail the litigation. These were extreme, desperate litigation manoeuvres—but the ploys failed.
The Court of Appeal put the Post Office back in its letter box. Fraser remained as presiding judge. The Post Office rapidly sought settlement with the claimants, although because the claimants had resorted to a group litigation order, much of the compensation was swallowed by legal and other costs. There had been some justice, but only of a sort.
Elsewhere, the government has been pressed into establishing an inquiry under a retired senior judge. But still the Post Office has tried to get out of being accountable, not least with serious ongoing failures to disclose relevant information to the inquiry. The chair has had to be increasingly vocal in expressing his displeasure.
And in the criminal courts, only a small minority of the convictions have been quashed. The Criminal Cases Review Commission, which refers cases to the appeal courts, is slow and poorly resourced, and needlessly legalistic in its approach, seeming only to bring cases when it can be certain of success. This case-by-case approach means that many of those wrongly convicted face lengthy and uncertain waits as to whether they will be exonerated. The cruel irony is that far more consideration is being put into whether to reverse the convictions than was ever put into whether there should have been prosecutions in the first place.
Now, thanks to the new year television dramatisation Mr Bates vs The Post Office, politicians have realised that something must be done. The government has announced that compensation payments will be accelerated and that the group litigation settlement amounts are not the last word. Prime Minister Rishi Sunak has promised primary legislation so as to remove the convictions, apparently even in the few cases where the convictions may have been valid. Twenty-four years after the first Horizon-based prosecutions, ministers have finally acted with speed.
But the complexity of this dreadful situation demands more than these quick solutions. There must be reform of the legal system’s rules of evidence and disclosure which led to defendants being convicted on the basis of computer records alone, without any reasonable chance of rebutting those records. Private prosecutions should be abolished, and every prosecution decision should be made by an independent prosecutor. Class actions in respect of IT failures should not be a valuable vehicle for funders and lawyers, but an effective means of achieving compensation for the victims.
And one persisting problem is the arrogant secrecy and lack of accountability of those who hold senior positions in the public sector. IT and infrastructure projects will often fail, and so absolute transparency should be a minimum requirement. The only reason we know so much about the failures of the Horizon system is because of the botched prosecutions—and that information only came out because of the hard-contested civil litigation.
In the UK, the state is quick to impose criminal and civil liability and slow to remove it, even when the injustices are stark. The legal system of England and Wales, in particular, makes it easy for the likes of the Post Office to prosecute and contest cases, and makes it hard for the likes of Mr Bates to take those entities on.
Because of some strokes of media and legal luck, and because of a well-received television drama series, it may be that the surviving wrongly accused belatedly have justice. They very nearly did not. And still now you might never have heard anything about the Post Office Horizon scandal.
