Independent barristers’ review “contributed to Post Office cover-up”

Post Office: Many people’s lives were blighted

An independent review by a leading public law silk into possible miscarriages of justice caused by the Post Office Horizon computer system “was used to, and in some ways contributed to, a cover-up”, legal academics have argued.

They said the review led by Jonathan Swift QC, the government’s senior civil law counsel at the time, showed how independent reviews could be used to “sprinkle the holy water of justice on unjust and improper behaviour”.

The working paper is the latest output from the Post Office scandal project being run by the Evidence-based Justice Lab at Exeter University.

The Swift review was commissioned by Tim Parker, the then incoming chair of the Post Office, to answer concerns from the government about Horizon-based prosecutions of sub-postmasters.

Two public law barristers were selected, Mr Swift, now a High Court judge, and Christopher Knight, a barrister based with him at 11 King’s Bench Walk. Their report was delivered in early 2016.

The academics questioned the choice of public law barristers for a review concerned with “questions of criminal justice not public law”, and described its evidence base as “limited”, particularly in its failure to question Sir Anthony Hooper, a former Court of Appeal judge and chairman of the Post Office’s mediation scheme.

Sir Anthony, according to the paper, “at some stage during the life of the mediation scheme” between 2013 and 2015 “told a senior person in the Post Office” that he did not think the sub-postmasters he had seen were likely to have been dishonest and the problems were likely to have been caused by Horizon.

“Whether it was the Swift team or the Post Office that ruled him out of scope is a very interesting question.” His exclusion was “concerning and the reasoning given for it is unconvincing”.

The paper said the review was “plainly heavily dependent” on information supplied by Post Office and Fujitsu, which built Horizon, mostly via the Post Office’s legal department.

“In some, but not all, respects the report can be read as being rather credulous with respect to that information.”

It went on: “Such evidential biases can be structural features of a review which has limited time and resources to gather and assess evidence but the absence of victim perspectives in their evidence base is, given the terms of reference, something which is a more fundamental criticism here.

“It magnifies ways in which the process is vulnerable to various other biases, where the Post Office view of evidence and procedures is allowed to dominate decision-making.”

The academics said that whether the handling of the review was “merely poor decision-making or something more sinister” was something that could be explored in the ongoing inquiry chaired by Sir Wyn Williams.

Describing independent reviews as “difficult”, they said they would not want to “overly emphasise criticisms of the authors”, as responsibility for the inadequacy of their evidence base might “largely, but perhaps not totally” lie elsewhere.

The way the review’s work was reported to Parliament appeared to be “at least arguably, misleading” in suggesting there was no systematic problem, when its conclusions suggested “both specific and systematic problems” with the operation of Horizon.

“As we can see, the capacity for independent reviews to be misrepresented, and for senior lawyers’ judgements to be used to sprinkle the holy water of justice on unjust and improper behaviour can lead to serious problems. They help create a legality illusion.”

The working paper said: “The report was used to, and in some ways contributed to, a cover-up of systemic and operational weakness and a failure to face up to a lack of honesty in the organisation.

“People bear responsibility for the processes and the judgements they take within them, and those judgements were flawed. There is no room for complacency when so many people’s lives were blighted.”

The authors were Professor Richard Moorhead and Rebecca Helm, associate professor, at Exeter University, and lecturer Karen Nokes at University College London.

    Readers Comments

  • Jeff Smith says:

    As an ex IT employee of RM/POL (as they were then) I am aware that the Board received regular (possibly monthly) Risk Assessment Reports from the Horizon Programme Manager within CSC, from the Information Security team and, presumably, from Fujitsu. It would be surprising if they did not list the issues and important faults. A FoI should be carried out to uncover the Board’s awareness.
    It was also well known that Horizon and thousands of faults, as do all computer systems.

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