This document contains my personal reaction to the Evidence Sessions at the Post Office Horizon IT Inquiry (The Inquiry). The Inquiry may not deliver any conclusions until 2023 or later but when they do that will be the factual conclusion and not anything I may write. So my data comes from video and transcripts that were given at the Inquiry and I believe they are a matter of public record.
To be honest I didn’t expect very much from the Inquiry, it just giving information that had already been published at the related trials/appeals and Nick Wallis’ book “THE GREAT POST OFFICE SCANDAL“, from Bath Publishing. The first sessions were to determine the impact on the individual Subpostmasters. I was quite wrong the sessions were a small gold mine of information. There were two types of session, one where the individual Sub-postmaster answered questions on written evidence they gave for the inquiry and the other a focus group with multiple Subpostmasters. Everyone should watch them.
https://bathpublishing.com/products/the-great-post-office-scandal
I use the term Sub-postmaster (SPM) to mean anyone in that job, male or female. Also anyone prosecuted by the POST OFFICE as part of that group.
What is a Plea Bargain? This is a difficult concept to describe because that term is possibly a Media expression and not a Legal one. In this document I use the broadest definition, it is where someone is asked make a plea to a crime that they didn’t do. This could be at any time from Investigation to Arrest to Parole boards in Prison. In the British CJS, Criminal Justice System, there is a system of “discounts” where the earlier you give a Guilty plea the bigger the “discount” you can get off your sentence. Often Lawyers will latch on to this and claim that the American system of Plea Bargains does not exist in England. However as well as this official system you, or your solicitor, can negotiate a plea for a sentence discount that would be in addition to that.
Many of the cases were referred to the Court of Appeal Criminal Division (CACD) by the Criminal Cases Review Commission (CCRC). One thing the CCRC did was to ask the Justice Committee to investigate the number of Private Prosecutions that were used by the Post Office. It would be easy to deduce that all the Sub-postmaster prosecutions were Private but this was not actually the case. The CPS were used for at least for Seema Misra’s prosecution. This throws up a question, why were some Private and others Public? Most Subpostmasters were unaware of the legal technicalities.
What is a Private Prosecution? My definition would be any prosecution that is NOT started by the Crown Prosecution Service or Police. In practice getting a precise definition is difficult. The CLRNN is working on a project to review the system of private prosecutions, getting a precise definition is one of their challenges. This report was due in early 2022 but the latest status pushes it out to 2023.
The subpostmasters came to fear the Post Office Investigation Branch. This was mainly because of the one thing they didn’t do – investigate. Almost all Subpostmasters reported that they (the Investigators or auditors) had already decided they were guilty. They simply accused the Subpostmasters of theft and then tried to find the evidence to support that claim.
There was an absurdity in this situation. Due to their unfair contracts, the Subpostmasters had to make up any cash “shortfalls”. This meant that if they were stealing any money they were stealing it from themselves! The investigators never accepted this point. The investigators commenced a search for any evidence of theft. This would often involve attempting to find any evidence of expenditure. By this point the Subpostmasters were broke due to having to fix the alleged cash shortfalls. I can’t recall any evidence of theft being found, despite attempts to intimidate Subpostmasters.
I use the term “Investigators” to refer to members of the Post Office Investigation branch. None were individually named at the Inquiry.
The route to prosecution varied slightly, they tried to get the Subpostmasters to make up shortfalls. Some borrowed money from the Bank, others tried to borrow money from relatives but the crunch point came when the Subpostmaster was unable to make up the shortfall. At this point they tried to convince them that the alternative was multiple years imprisonment.
The problem was that they could never find any evidence of theft (for those giving evidence at the Inquiry). Initially they tried to involve the real Police and on a couple occasions the Police refused to prosecute as there was insufficient evidence. One Subpostmaster thought that was then end of matter however eventually the Post Office came back with a Private Prosecution.
The Post Office prosecutors would offer a Plea of False Accounting rather than Theft.
So far the Inquiry has heard from Subpostmasters and they reported what happened from their perspective. What was really wanted, hopefully we will hear from the Inquiry in the future, was evidence from the Lawyers for the Subpostmasters. Why would the Post Office make an offer of False Accounting when they could get Theft? One reason may be that they had to prove all elements of the Offence. The “evidence” for a part of this was a report they produced from somewhere. I wouldn’t like to be more specific than this because it’s provenance was never explained. The Law Commission has also been blamed for allowing the Post Office to get away with such flimsy evidence. However alleging a shortfall is one thing to prove that cash is missing and that they intended to permanently deprive the Post Office of that money is quite another.
To illustrate a point Let me discuss a completely different scenario, that of Car/Automobile Theft. What low level criminals will do is to take a Car and drive it away, then after their “joyride” they abandon it. The smart ones abandon it near from where it was taken. Police are often able to determine who took the car. It may seem obvious that this is Theft but in practice the need to prove the car was taken with the intent of permanently depriving the owner can be very difficult. They need to show that all elements of Theft have been met. This has proven to be so hard that governments have had to introduce another crime called “Taking Without Owner Consent”. Returning to the Post Office, they also found it hard to state that all elements of the crime had been satisfied.
Let us turn to another Crime: False Accounting. This was often offered as a Plea as it was much easier to prove. The motivation for doing this has not really been addressed yet. It is easy to believe it was done out of the kindness of their heart to allow people to avoid Gaol/Jail. The author’s view is that False Accounting was never offered until they knew they could not prove Theft.
False Accounting was offered often conjunction with a suggestion that there would be no custody with the sentence. This is one area where US and GB Plea Bargains differ. In the US you nearly always get the Plea that was offered. Sometimes there is even a written document. In GB the Plea Bargain seems to have less standing. Some of those who thought they would not receive a custodial sentence actually did. The difference may be that the Plea is overseen by the Judge in the US whereas in GB the offer was made by the Post Office and the Judge or Magistrate may have their own opinion.
When the Offer was made most of the Subpostmasters simply had no idea why they were being made, let alone the consequences of accepting one. Their focus was on the short term consequences, the need to avoid a custodial sentence. They were oblivious to medium and long term consequences. So why did they accept them? Part of the reason seems to be somebody discussed the Offer with them, perhaps it was someone from the Post Office legal team or was it their Solicitor/Barrister? (US: Attorney). In who’s interest was that advise given? One common theme is that when a defendant is faced with a Prosecutor of substantial standing, like the Post Office or the District Attorney (US) the Lawyer may advise them to take the Offer. Rather than see the Lawyer facing them they see the giant resources of their opponent. Most Subpostmasters accepted an Offer on the advise of their Lawyer.
The definition of False Accounting starts with “Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,—”. From the evidence of the Subpostmasters at the Inquiry, none of them expressed any intent to do any of that. Indeed they mainly felt they had to put their own money in to the Horizon system to offset the apparent losses. They clearly did not meet the requirements for the False Accounting offense. Yet, possibly on their Lawyers advice, they accepted the Offer and became convicted criminals. This is the danger of a plea bargain, you get to admit to a crime you never did.