The Post Office Scandal: Plea deals, lawyers’ ethics, and corporate failure

Economic & Social Research Council (ESRC)

Prof Richard Moorhead and Dr Rebecca Helm (SSIS) were awarded ESRC IAA funding to investigate the legal judgements around the Post Office scandal. They worked with LBC Wise Counsel and an expert Advisory Group during this project. They liaised with Sub-postmasters, a range of lawyers, and journalists engaged in reporting on the scandal. 

The challenge 

In 2000, the Post Office (PO) introduced a flawed electronic point of sale and accounting system (Horizon) into its network of post office branches. Designed to help make PO more commercial, faulty software, hardware problems, and human vulnerabilities in the system led years to hundreds of sub-postmasters (SPMs) paying thousands they did not owe, being disciplined and fired, being subject to debt proceedings, and facing criminal prosecution, conviction, and punishment based on shortfalls falsely flagged by the Horizon system.

During 2019, in a series of scathing High Court judgments, the PO, their system engineers (Fujitsu) and the PO’s presentation of their case were singled out for extraordinary criticism. The central message was that Horizon was not fit for purpose during much, if not all, of its life and that a culture of secrecy within the Post Office prevented the truth about Horizon from coming out. This led to a Court of Appeal hearing acknowledging the convictions of SPMs as one of the largest miscarriages of justice cases in modern history. It exposed the convictions of hundreds of sub-postmasters based on the egregious conduct of the PO and its witnesses. SPMs were prosecuted without critical evidence, pressured improperly into plea deals, publicly branded thieves, and many were imprisoned on flawed evidence. Faulty computer evidence and the threat of a prison sentence were used as a bargaining chip to reclaim phantom debts for the PO.

These events have led to a Judicial Statutory Inquiry chaired by Sir Wyn Williams (the Williams’ Inquiry), which initially focused on the Horizon system. Neither corporate governance nor the lawyering for the Post Office featured significantly at the outset of the Inquiry. Our initial view of the case was that how lawyers could be, and here were, used in the service of corporate power was like to be central to the scandal.

What was done to help

Our analysis of the legal judgments and associated documents led to two major working papers and a series of submissions to the Williams’ Inquiry. We identified how the evidence of wrongs visited on SPMs showed how lawyers’ professional, ethical rules were strained or, in many cases, likely breached. Our published content can be found here. Professional obligations of independence and fairness were no match for professional and organisational cultures that emphasised confidentiality and zealous advocacy for Post Office’s commercial and reputational interests. We argued that what should be balanced, independent and professional became partisan, unbalanced, and unethical.

Our analysis of this evidence stretched through various techniques backed by law: lawyers’ threats, litigation, contract termination, insolvency, prosecution, and property confiscation. As scrutiny mounted, evidence of flaws and insecurities in the computer system was minimised, ignored, and concealed from external scrutiny with the assistance of lawyers (both in-house and external lawyers). Evidence required to be disclosed by lawyers in civil and criminal proceedings was not disclosed. Aggressive defence of the system, aided by lawyers, continued even when legal reviews revealed evidence of perjury and document destruction. Parliament appeared to have been misled. These misdeeds were underlined by deliberately aggressive and obstructive litigation tactics calling on some of the country’s most senior lawyers.

The results

Our work was widely publicised in the mainstream and professional press as well as through blogging, invitations to speak at conferences (academic, professional, and public) and via podcasts. We liaised with the legal teams for SPMs appearing before the Inquiry, ensuring our arguments were taken onboard in detail by one of the teams. Our formal submissions in writing and in person to the opening hearing of the Inquiry were described as powerful by the judge leading it, Sir Wyn Williams. This led to the Inquiries’ terms of reference being broadened to encompass lawyering for the PO. The judge also decided, following our urging, to deepen the Inquiry by ensuring that legal professional privilege was waived by PO, Fujitsu and the relevant Government Departments. Legal Professional Privilege is a particularly strong form of confidentiality that would have prevented the Inquiry from looking at legal advice and documents pertinent to its work. As we said at the time, without this lifting of privilege, the Inquiry would have been like Watergate without the tapes. We also held an event for affected SPMs (chaired by Lord Arbuthnot), which was instructive in allowing us to explain our work and to learn about the scandal from some of those affected by it.

The publicity around this work has driven significant interest from in-house lawyers in particular (one of the leading groups in the spotlight over the ethical breaches in the PO case), with many invitations to speak to various groups. A ginger group looking to strengthen regulation to ensure independence and ethicality in the face of commercial pressure was set up and, with our assistance, produced a paper aimed at In-house lawyers taking charge of their independence in business. (Read the paper here). The professional regulators are taking a keen interest in the Inquiry and the policy implications of our work. Professional misconduct investigations are underway, and the Solicitors’ Regulation Authority has announced a thematic review into risks around the in-house lawyer role.