I’ve obtained a letter to Sir Wyn Williams, written by the barrister Paul Marshall. Sir Wyn is the retired judge who chairs the Post Office Horizon IT Inquiry. Paul Marshall represents, in his words, “some of those most grievously affected by the Post Office’s conduct”.

The letter is dated 9 January 2024. Whilst recent government announcements, prompted by an ITV drama series, may come to supersede some the concerns expressed in the letter, we should bear in mind that Marshall was writing more than four years after the Bates v Post Office High Court settlement which set in motion the haphazard compensation schemes various groups of Subpostmasters need to negotiate in order to get their hands on the money (and earnings potential) which was stolen from them.

This letter is evidence the Post Office and government continued, at least until very recently, to say fine words in public whilst, behind-the-scenes, playing games with peoples’ lives.

It’s a long letter, so I’ll divide the issues it raises into a series of blog posts.

Subpostmaster claimants in Bates v Post Office with criminal convictions

In this extract Marshall is outlining the case of someone with a criminal conviction who was a claimant in the civil case Bates v Post Office. Having had their conviction quashed, they pursued compensation. They initially accepted a paltry amount because of the Post Office’s claim that despite their conviction being quashed, Horizon evidence was not “essential” to their case. The Post Office and government would therefore count this individual as having settled their claim and accepted full and final compensation. I have added links and comments in square brackets for clarity where appropriate. Marshall writes:

“I have recently been asked to represent, and have agreed to represent, someone in the “Overturned Convictions” scheme…

I shall refrain from naming the individual concerned. In December 2022 they entered into a settlement agreement in the course of a mediation in which they were legally represented (not by me).

The Post Office’s position, in essence, was that the individual’s appeal was not opposed merely on pragmatic grounds and that other evidence existed that warranted prosecution, other than Horizon data alone, but that a further prosecution was considered not to be in the public interest.

The individual concerned had made a statement accepting that they had (improperly) taken Post Office money. It is unnecessary, for present purposes, to elaborate the (unsatisfactory) circumstances in which that statement was obtained by the Post Office.

At the mediation, the individual concerned felt under acute pressure to agree to settlement of their claim in consideration for payment of a modest sum (a fraction of the £600,000 offered by the government in September 2023 to all those convicted whose convictions had been quashed) when considered against the devastating impact that a criminal conviction for an offence of dishonesty has had upon them and upon their family, over many years.

Against the sum offered by the Post Office, the Post Office demanded that credit be given for a small amount of compensation received in 2020. That was at the direction of the steering committee of the group (GLO) claimants. That compensation was paid ex gratia out of sums paid by the Post Office under the terms of the December 2019 Settlement Deed, that otherwise stood solely and exclusively to the credit of the ‘Not Convicted Claimants’ in the GLO litigation.

In March 2023 I wrote to Minister Hollinrake MP at the Department for Business and Trade [DBT], expressing my view that such a deduction (actual or demanded), of which I was generally aware in the Overturned Convictions Scheme to be the Post Office’s position, was contrary to principle as a matter of law. The Department for Business and Trade rejected my view, as did the Post Office.

I am nevertheless satisfied that I was, and am, correct in my analysis [reader, he was], and that both the Post Office and DBT were wrong in theirs. There are two minor issues on this.

First, it exhibits a willingness on the part of the Post Office (and DBT) to contest meritless/bad legal points with some vigour and at some expense (it took until December 2023 to address it) – there are troubling echoes of its conduct of the Bates GLO litigation.

Secondly, the Post Office sought credit against payments made by third parties, not by it, which might be thought unattractive and grasping – certainly not disinterested and objective, as one might hope.

Without condescending to detail, that I believe to be unnecessary for present purposes, in recent evidence given before you in the Inquiry, it emerged that the person responsible for the investigation of the individual to whom I have referred did not accept or believe the account that they had given of their having improperly taken the Post Office’s money. They were nevertheless charged with theft. In the course of other evidence given to you, it emerged that the Post Office’s investigation was not properly conducted and that the alleged losses identified at the individual’s Horizon accounts were consistent with what may be conveniently termed “Horizon shortfalls”.

So the position, in short, is that the Post Office in a mediation contended that it had material that would have warranted prosecution, so as to take the circumstances outside the class of prosecutions where “Horizon data” was essential – the Court of Appeal’s chosen threshold requirement for allowing an appeal. But that material, upon scrutiny in the Inquiry, was revealed to be profoundly unsatisfactory as a matter of evidence. Had it been challenged, but for a guilty plea, it would have been ruled inadmissible.

Where does this leave mediations that have resulted in settlement, both in this specific circumstance and in similar circumstances where obtained upon an apparently false premise/representation? Further, what are the issues in connection with the conduct of the Post Office’s original investigations and their propriety and reliability? Perforce, only a tiny number of actual investigations have fallen to be considered by the Inquiry. But it is reasonable to infer that failure in the proper conduct of a Post Office investigation in this particular example is not an isolated instance, indeed, there is evidence in the Inquiry that that is so.

There is, I believe, a serious issue as to the stability of agreements reached upon a false premise. As a matter of the law of contract, vitiating factors include mistake and misrepresentation. How, going forward, are negotiated settlements such as these, entered into on a false basis, going to be treated/addressed? There is fertile opportunity for subsequent satellite litigation.

I have written to Herbert Smith Freehills [perhaps the biggest and most expensive law firm the Post Office retains] inviting the Post Office, in this particular instance, to agree to set the settlement aside. I am yet to receive a response. I am drawing the issue to your attention because I believe it gives rise to wider concerns. The circumstances, as these are now known, arise as a direct result of evidence given in your Inquiry.

It is of particular concern that the individual concerned was given to feel so pressured, and, if I might say so, ‘overborne’ in the mediation and left with what they understood to be essentially no choice but to settle on the only terms that the Post Office offered. I am told that those representing the Post Office on the mediation included Mr Simon Recaldin of the Post Office, and Mr Alan Watts, a partner in Herbert Smith Freehills.

More generally, the circumstances in this particular case raise important wider questions about facts and matters relied upon by the Post Office as causing other cases to fall outside the Court of Appeal’s chosen heuristic ‘is this a case where Horizon data was essential to the prosecution?’

Unless the relevant circumstances are explored in evidence before you in the Inquiry, it is not, as a matter of practical reality, possible to test or otherwise scrutinise in detail the ‘other circumstances’ relied upon by the Post Office as taking any particular case outside those where the Court of Appeal treats the conviction as unsafe.

It is only by fortuity that it has emerged that the Post Office investigator of the individual to whom I have referred did not believe the account that was given, that was otherwise said to constitute a confession and cause the circumstances, for that reason, to allegedly fall outside a “Horizon data” case.

One is driven to wondering how many similar cases there may be where Post Office investigations were flawed and their evidential product consequently unreliable and inadmissible? Given the extensive and substantial criticisms made by Mr Duncan Atkinson KC in evidence given by him, including absence of standard safeguards and procedures, such as those adhered to by the Crown Prosecution Service, and the absence of requisite independence of investigating and prosecuting agencies, there must necessarily be serious misgivings that, were such Post Office evidential material to be examined, it would not withstand serious scrutiny.

It was only as a result of your Inquiry that it emerged that the individual who investigated Janet Skinner’s alleged shortfalls did not believe that Janet Skinner had stolen anything. Miss Skinner was nonetheless charged by the Post Office with and prosecuted for theft. One is left with anxiety and misgivings about the propriety of any investigation undertaken by the Post Office.

I do not have answers to these substantial questions, but they are, I believe, both important and seriously troubling because they suggest – indeed disclose – a fresh injustice. Either something is to be done, or nothing is to be done.
I should add that I am given to understand that the extreme pressure and isolation experienced by the individual to whom I have referred, to settle their claim for what they considered to be a seriously inadequate sum, is an experience shared by others. That is also troubling.

Further, I remain concerned that the arrangements to which I have referred raise an issue about the requisite/desirable level of independence of the Overturned Convictions scheme, bearing in mind that HSF also have ultimate supervision of the HSS (or “Shortfall”) Scheme (about which I also have concerns). I have long expressed misgivings about the level of requisite independence and transparency across all the three Post Office compensation schemes. Those requirements are fundamental, both to fairness and for both individual and public confidence.

The government has recently made some announcements about the number of settlements that have been reached. That matters little if the terms and circumstances of settlements reached are other than fair.

There is of course scope for further litigation arising out of the circumstances to which I have referred. That eventuality would be unfortunate.

I repeat here what I have said previously. There is a requirement for the compensation schemes for Post Office wrongdoing to be administered by a demonstrably independent body. The short-term difficulties will be offset by avoiding what may be anticipated as long term further problems. Any further resulting delay may be mitigated by payment of proper substantial interim payments.”

I know the individual Paul Marshall is referring to in the above letter, and I will write to them to see if they are willing to be identified. I will also find out what the government/Post Office response is to the issues Marshall raises, given they seem to have changed their attitude significantly on the back of Mr Bates vs The Post Office. Keep an eye out for the next blog post which will address Marshall’s view on the failures over interim payments to compensation claimants.

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