Barrister criticises Post Office prosecution

Stephen Mason

Since 2011 I've been in contact with Stephen Mason, a barrister who is the author of a book on electronic evidence and the editor of a journal called the Digital Evidence and Electronic Signature Law Review.

Mr Mason has sought and received permission to publish the full transcript of Seema Misra's trial.

Seema Misra used to be a Subpostmaster at West Byfleet Post Office in Surrey. Despite being convicted of the theft of £75,000 from the Post Office by unanimous verdict at Guildford Crown Court in Nov 2010 (and subsequently sent to prison whilst pregnant), Seema has always protested her innocence. Her case is currently being considered by the Criminal Cases Review Commission.

Seema Misra

It was Seema's husband Davinder who made me aware of alleged problems with the Post Office Electronic Point of Sale and branch accounting system (Horizon) whilst Seema was still in prison. Seema was convicted on the strength of electronic evidence drawn from the Horizon system.

Since the BBC Inside Out South investigation in Feb 2011, alleged problems with the Horizon computer system and criticism over the way the Post Office suspended, sacked and prosecuted a number of its Subpostmasters has been the subject of a Select Committee Inquiry, two parliamentary debates (1 and 2), several more Inside Out investigations, two One Show pieces and a recent Panorama.

We know from the Panorama that the Post Office prosecuted one Subpostmaster for theft despite an internal investigator stating he could not find any evidence of theft. The Post Office says it cannot comment on individual cases due to confidentiality, but that a financial loss and false accounting together is often sufficient evidence for a theft charge. The Post Office maintains the Horizon system works fine and that it's never done anything wrong in any of the cases we've featured.

In his introduction to the Misra trial transcript, Mr Mason warns that the "the reader must take great care in reaching settled conclusions from the transcript of the trial, because the transcript is only one part of the entire record."

This does not stop Mr Mason from making considered, but repeated criticisms of the Post Office prosecution. Here he attacks a fundamental defence the Post Office have always made about the Horizon system - its "robust"-ness:

"To assert that a complex system, which the Horizon software appears to be, is ‘robust’, the prosecution ought to have produce [sic] evidence to establish what was meant by ‘robust’ and the truth of the claim. 

"No evidence was produced to demonstrate that the system was ‘robust’, nor to establish the ‘quality’ of the system – none of the test [sic] set out in chapter 4 of Electronic Evidence seem to have been considered. 

"The Post Office also failed to produce any evidence regarding the operation of the operating environment and the reconciliations, error rates, controls, and relevant internal audit processes used to ensure integrity, and to provide details of the various up- dates that fixed problems with the software."

He then goes on to address the issue of who actually controls the Horizon terminals in a Post Office:

"The comment that the defendant would have been aware of a defect in the software (excluding the specific defect discovered in a post office in Callendar Square in Falkirk) is manifestly incorrect.

"Neither observation was accurate, nor, it appears, sustained by any evidence produced at trial. Moreover, the observation (Day 1 Monday 11 October 2010, 23H – 24A) that Seema Misra was ‘the person responsible for the computer system at this office’ demonstrates the failure of the prosecutor to understand that end users of the Horizon system do not control the computer system: Fujitsu undertake this task."

Mr Mason then goes on to criticise the expert witness for the prosecution:

"Gareth Jenkins, the system architect for Fujitsu Services, was asked about the possibility that a problem that might arise between the systems [Horizon and Riposte], but he considered this was of no relevance, even though he did not know whether the problems encountered with the Riposte software might have affected the Horizon system (Day 4 Thursday 14 October 2010, 97 – 98).

"In effect, the prosecution did not present any witness for the defence to cross examine on this particular and important point, although it was admitted that the Escher software [Riposte] appeared to be the cause of the problem encountered at the post office in Callendar Square in Falkirk (examination in chief: Day 4, Thursday 14 October 2010, 46F – 50; cross examination: 88G – 111). 

"Mr Jenkins relied on a great deal of hearsay in giving his evidence, he rarely obtained and submitted original data, and on occasions spoke to other people in Fujitsu Services to ascertain answers to technical questions – yet none of the people he spoke to were called to give evidence."

The assertion that it was only Seema Misra who was having problems with Horizon appears to have been contradicted during the trial:

"The previous owner of the post office run by Seema Misra claimed that they did not have any problems. It later transpired that this was not correct (Day 5, Friday 15 October 2010, 2 – 9). 

"However, before the first owner of the post office made the additional admission, the prosecutor reached the false conclusion that because the first owner of the post office did not have any problems, it followed that there was no failure of the computer system at a later date (Day 1 Monday 11 October 2010, 50F)."

His conclusion:

"Arguably, the evidence of the software system was not sufficient for anybody to make a decision based on the evidence put forward in the trial [my italics], and it seems that all Professor McLachlan [expert witness for the defence] could do was highlight the fact that he had so little evidence to consider, that he was not able to offer any sensible or conclusive conclusions."

In summary, a barrister who specialises in the presentation of electronic evidence in court believes evidence presented by the Post Office during a criminal trial was "arguably" not sufficient for a jury  (or indeed "anybody") to reach an informed decision. In Seema's case the Post Office didn't offer any other evidence as to her guilt of theft, a point noted by the judge in his summing up to the jury.

A barrister's opinion is just that, a barrister's opinion. But the evidence required to convict someone of a criminal offence must be beyond reasonable doubt. Mr Mason believes the prosecution's evidence was arguably insufficient. The jury, without the benefit of Mr Mason's expertise, disagreed.

I've asked the Post Office to respond to Mr Mason's comments and will post up their reply if I get one.

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Further reading:

Ongoing Computer Weekly investigation into Horizon and timeline
Post Office Horizon primer written by me in 2013

Adur and Worthing Business Awards

My thanks to the guests of the Adur and Worthing Business Awards on Friday night who were given  the task of beating the previous year's Children in Need collection total of £380.

The dubious incentive involved being given the opportunity to watch the event's principal sponsor, James Stoner (pictured) hand over the Lifetime Achievement award wearing a Pudsey onesie.

Pitting one side of the room's collection bucket against the other and generally hassling and cajoling everyone into emptying their pockets raised £900. I've met people who have raised tens of thousands of pounds so I realise in the general scheme of things this isn't much, but I was taken aback by the spontaneous generosity.

It was great to work with James, Jeanette Hockley, Helen Tinner and all the JPSE team. It was a particular joy to spend my first night out in Worthing since 1988, especially as Rob West, who was my host 27 years ago was also there on Friday night.

This time round he was accompanied by his glamorous business partner and lovely wife Julie. In 1988 it was a different, pre-mobile phone story...

Nick Wallis: Showreel

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Many thanks.

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Event hosting

This year I seem to be hosting a number of events and giving the odd talk. I like doing this, so if you want to have a chat about any forthcoming event you are holding, please get in touch.

Here is a testimonial from Susie Marshall at Johnston Press South Events about an awards ceremony I hosted in July this year:

"We hold a number of events throughout the year, many of which are prestigious black tie events. We are all too aware of how important it is to have a speaker who is not only engaging, charismatic and professional but is also able to create an atmosphere and maintain it. We hired Nick Wallis for some of our regional business awards and he was all of the above. Not only did the audience love him but he knew exactly how to keep everything going, moving things along when needed, giving people time when needed, he was an absolute pleasure and professional to work with. I felt completely relaxed leaving Nick to run the stage and would not hesitate to use him again in future."

I can also facilitate panel or audience debates, interview celebrities/politicians/business leaders etc as required.

By the way, I have received other testimonials for my work, but they are all before I took up the breakfast show at BBC Surrey and are therefore ancient.

If you want to know what I would have been like to hire 6+ years ago, have a look at this blog post, cunningly called Testimonials. I have put Susie's kind words into that post and will continue to update it so that it hopefully builds into a long and convincing litany of up-to-date recommendations.

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Panorama tx card Mon 17 August

Here's the TX card for Monday's Panorama. If you can't read the writing, it says: "Has the Post Office been sending innocent postmasters to jail?"

It goes out at 7.30pm on BBC 1 (10.35pm in NI).

Joe Cooper is responsible for taking the shot you see above plus the whole of this and many other Panoramas. He is an immensely talented cameraman, who also shot a lot of the two One Show pieces we made on the subject of the Post Office before Christmas.

I'll be on the One Show sofa on Monday at 7pm discussing the Panorama piece with Matt and Alex. I do hope you can watch both programmes.

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Panorama - Trouble at the Post Office - 17 Aug 2015

Trouble at the Post Office, 7.30pm Mon 17 August, BBC1

Sorry this blog has been so quiet of late. I've spent a few weeks working on the above programme as well as putting together the third series of Caught on Camera for Channel 5. It's been a bit hectic, to say the least.

This is what the Radio Times listing says:

"Dozens of sub-postmasters have been prosecuted after their computers showed that money had gone missing, but could there be other explanations for the cash shortfalls? John Sweeney meets a whistleblower who says there were problems with the IT system, and also investigates claims that the Post Office charged some with theft even when the evidence didn't stack up."

As you can see, I am not presenting this Panorama, but the story could not be in better hands.

I will update you with more information as we get closer to the transmission date.

For more Post Office related information, please click around this blog. I'll put up some links below shortly.

Post Office response to final Second Sight report

The Post Office have sent me a press statement dated Sunday 19 April. It deals with the final Second Sight report, which I posted here earlier. They have also sent over some additional information, which will be of interest.

At the bottom of this statement is a link to a far longer document published by the Post Office in March 2015 which comprehensively sets out their position on their Horizon IT system. It contrasts, often starkly, with the opinion of their independent investigators. Again, that will be of interest.

"Post Office Complaint Review and Mediation Scheme

Investigations over the past three years have confirmed that the Post Office’s Horizon computer system is operating as it should. It is used successfully by 78,000 people to process six million transactions every working day in communities throughout the UK. 

Both the Post Office and independent forensic accountants Second Sight have found that the majority of the branch losses in complaints put forward to the mediation scheme were, in fact, caused by errors at the counter.  

The Post Office is concerned that the report by Second Sight, recently made available to scheme applicants for mediation purposes, repeats complaints made by a very small number of former postmasters, as well as a number of assertions and opinions. Second Sight has been unable to demonstrate any evidence to support these. 

To address this concern, the Post Office has produced a response to the Second Sight report which has also been provided to all the remaining applicants in the scheme.

A Post Office spokesman said: “Over the past three years there have been exhaustive investigations which have not found any evidence of systemic problems with the Horizon system. The mediation scheme was set up to address individual complaints and that is what we have gone to great lengths to do – a number are now resolved. The complaints are considered on their facts and substance.”

Following the completion of its investigations, the Post Office announced last month that it will put forward all remaining cases to mediation, with the exception of those which have been subject to a previous court ruling. Those cases will continue to be considered individually on a case-by-case basis.

Additional information:

Fit for purpose :  A tiny fraction of the overall 500,000 people who have used Horizon since it was introduced more than a decade ago have put forward complaints. That does not constitute evidence that the IT system is flawed or unfit for purpose; indeed, if anything, it demonstrates that the system is highly reliable.  During nearly three years of investigation and review there is no evidence of system wide flaws.  The investigations have found the majority of branch losses were caused by errors made at the counter. 

Investigations and prosecutions:  We naturally take any allegation of miscarriages of justice extremely seriously. In none of the Post Office’s own work, nor through any of Second Sight’s work, has any information emerged to suggest that a conviction is unsafe. 

If the Post Office decides to prosecute a case, its conduct of the prosecution is scrutinised by defence lawyers and ultimately by the Courts themselves.  The Post Office has to satisfy both stages of the Code for Crown Prosecutors to start a prosecution: the evidential stage requires us to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and the public interest stage which requires us to consider whether a prosecution is in the public interest. 

We are duty bound to communicate with a defendant’s lawyers, and any decision by a defendant regarding their plea is made after he or she has had the opportunity to take private and confidential legal advice and consider, with lawyers, all the available evidence. The evidential requirements for proving the offences of theft or false accounting are a matter of law. 

Post Office as a prosecutor has a continuing duty to disclose immediately any information that subsequently comes to light which might undermine its prosecution case or support the case of the defendant.  

It is the duty of the defence lawyers to identify to the Court where there is insufficient evidence to sustain a charge, or to seek further information from the Post Office which might assist the defendant’s case. If the Court agrees, then the Judge must dismiss that charge. Thus a charge upon which there is no evidence will inevitably fail. 

 ‘Remote access’ to Horizon:  As we have always made clear, neither the Post Office nor Fujitsu can edit or delete transactions as recorded by branches.

We’ve provided extensive information about security and data integrity and no evidence at all has been put forward that demonstrates transactions as recorded by a branch can be, or indeed have been, altered through remote means.  We have comprehensively addressed the allegation, made in one case, of Horizon being accessed remotely from a basement in Bracknell to alter branch accounts.  There was no connection to any live data from what was a separate and secure test environment.

Notes:

The Post Office established a Complaint Review and Mediation Scheme in 2013 to provide an avenue for postmasters to raise their specific, individual concerns.  This followed an independent review of the Horizon computer system which found no evidence of systemic problems but did point to areas where the Post Office could have done more, in some cases, in areas such as training and support.

Of the nearly 500,000 users of the system since it was introduced in 2001, there were 150 applications to the mediation scheme, covering events spanning over a decade. A number were resolved at an early stage.  

The Post Office published a detailed report about the investigations and the scheme in March 2015. This is available on the Post Office website."

ENDS