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| 4 minutes read

The Post Office scandal - what next?

 

So fast and furious are the developments in the Post Office scandal, with horrific new stories emerging almost daily, that it seems like an age since I wrote my first article:

https://insights.smb.london/post/102iy7b/thoughts-on-post-office-scandal-part-1

It’s often said that variety is the spice of life, so I’m completely changing tack here to try and focus on solutions. In other words, if I had the legal, corporate, and constitutional authority to mandate a solution (chance would be a fine thing),what would I do, and what would that look like?

I appreciate that this is a very difficult and subjective topic, and I hope that anyone who disagrees with some (or even all!) of my musings will understand that it’s hard to do justice to the subject in a short article, and, equally,  there is no counsel of perfection here.  But what I can do is to take a leap of faith and come up with a practical suggestion  about how we could move matters on right now in a compassionate way, and one which I believe serves the interests of justice. Worst case, it might open the matter up for debate, but far more importantly, the on-going oxygen of publicity and discussion is critical in keeping the scandal live and at the forefront of peoples’ minds.

It's also an antidote to the line wheeled out by so many of the protagonists which goes something like this: “While there is an on-going public inquiry, it would be quite inappropriate for me to comment at this time.” We saw that as recently as yesterday from Fujitsu’s CFO:

https://www.independent.co.uk/business/fujitsu-to-wait-for-horizon-inquiry-to-near-end-before-deciding-on-compensation-b2487885.html

Interestingly, when I met a professional colleague today at the office for a client meeting, while gently teasing me for my near daily posts, it was somewhat comforting that her own suggested solution was (more or less) exactly what I am proposing.

So here goes:

  1. The Post Office (funded by its shareholder HM Government) and Fujitsu each to set aside a sub-postmasters’ compensation fund of £500,000,000, so £1,000,000,000 in total. This isn't a number plucked out of the ether - it has often been cited in the press as what is going to be needed as a total pot.
  2. Any sub-postmaster who was criminally convicted - be that of theft or the lesser charge of false accounting - to receive an immediate payment of £1,500,000.
  3. All sub-postmasters who were criminally charged but not convicted to receive an immediate payment of £1,000,000.
  4. All sub-postmasters who were not criminally charged but were suspended and subsequently lost their jobs to receive an immediate payment of £750,000.
  5. In addition to the above sums, all sub-postmasters who operated the Horizon system to be refunded any sums that they have had to ‘pay back’ to the Post Office because of shortfalls in their tills with compound interest at a sensible rate to be added on top, as well as to be refunded (in full) their legal costs.
  6. The payments in categories 1 to 4 to be interim payments to enable the victims and their families to get on with their lives, and not to have to worry about their day to day outgoings, and what is left over from the compensation payments suggested above to be a fighting fund to further compensate sub-postmasters once their claims have been finalised and agreed.

“Whoa”…. some of you will be saying. It can’t be that simple, can it? What about the guilty ones who did have their hand in the till? Indeed, it is not a straightforward issue.

The constitutional block to making these interim payments is, of course, that all those convicted wrongly would need to be somehow declared ‘innocent’. To be workable, this would need to be a blanket exoneration: with 700 convictions, hearing each case and making a declaration on each one would take years. In a recent interview (Jan 9th 2024) with Times Radio, Ken MacDonald KC, Director of Public Prosecutions 2003 – 2008, suggested that the Government had two options, namely: either (1) mass amnesty bill in Parliament to immediately exonerate all those convicted, or (2) a mass appeal - not contested by Post Office lawyers - and effectively waved through by the Court of Appeal. 

Lord MacDonald accepted that an amnesty bill will inevitably mean that ‘some people who are in fact guilty will be exonerated’. This is an imperfect solution, one that blurs the lines between the executive and judiciary, and sets what he describes as ‘an uncomfortable precedent’.. But in the circumstances, it’s perhaps the least of all evils. His posited alternative, a mass appeal, would still be a lengthy and legally complex process, with no guarantee that it would simply be rubber stamped by the Court of Appeal: for obvious reasons, judges usually like to hear the evidence before passing judgment. And unless there is individual scrutiny of cases, which means a re-hearing of every one, the result would be the same:  some guilty people will be declared innocent. 

Leaving this to one side for a moment, here’s the thing. To my mind, there’s no legal (or moral) reason to wait. While we delay, innocent former (and present) sub-postmasters are dying, some in poverty or in dire circumstances that they would not have been  in but for the scandal. So for those who support kicking the can down the road pending Sir Wyn Williams’ findings post the Inquiry, which will be, best case,  many months (if not some years) away, I would urge them to consider changing this narrow-minded approach.

I am especially grateful to Brian Rogers https://www.linkedin.com/in/brian-rogers-access-group/ whose post about simplifying and expediting the process is the inspiration for this article.

Stay tuned for my third instalment next week. This looks at some of the characters involved, and not just the ones that have been written about the most, and it’s titled: ‘the Good the Bad and the Ugly’.

In the meantime, you can keep up to date by watching the Post Office Scandal live on YouTube as well as following the stories on LinkedIn from the likes of 

Nick Wallis https://www.linkedin.com/in/nickjwallis/,

Karl Flinders https://www.linkedin.com/in/karlflinders/, and

Nick Gould https://www.linkedin.com/in/nicksbgould/.

Thanks to Jeff Smele, and to Mark Soames for their contributions to this piece.

 Jeffrey Smele | Media and Communications Disputes | SMB

Mark Soames | Crime & Regulatory Paralegal | SMB

                                                                                                                   

 

 

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corporate commercial & finance, crime & regulatory, media & communications disputes