How Post Office lawyers pushed boundaries in UK sub-postmasters scandal

Over the decades that the Post Office wrongfully prosecuted sub-postmasters using flawed evidence, the state-owned business turned to a series of lawyers to pursue the cases and then to avoid scrutiny.

The public inquiry into the scandal has now shone a harsh light on the solicitors and barristers who are linked to what MPs have described as one of the greatest miscarriages of justice in modern British legal history.

The Post Office, a 388-year-old institution, did not just use flawed evidence to prosecute sub-postmasters, but also contentious and aggressive legal tactics, the inquiry has heard.

The result was that hundreds of innocent people who ran the Post Office’s local branches were condemned to bankruptcy and imprisonment, with many of them still awaiting proper compensation.

Interviews with barristers for the sub-postmasters in two landmark Court of Appeal cases, and documents from the inquiry, point to how some Post Office lawyers pushed boundaries to serve their client’s interests.

Kathleen Donnelly KC acted for 555 sub-postmasters in a 2019 lawsuit, known as Bates vs Post Office, that led to revelations the company had pursued thousands of people between 2000 and 2014 with wrongful claims of theft, false accounting and fraud due to losses flagged by a faulty IT system.

“The Post Office saw this case as an ‘existential threat’,” said Donnelly. She recalled that no expense was spared, but warned that lawyers needed to ensure that clients understood “they still have to play by the rules, no matter how much is at stake”.

Seven hundred people were convicted using data from the “Horizon” IT system. Multiple suicides have been linked to the scandal, while dozens have died awaiting justice. Only 93 convictions have been overturned.

The public inquiry into Horizon, chaired by retired judge Sir Wyn Williams, is taking evidence from victims and Post Office representatives. It will run until at least summer 2024 and has heard extensively about strategies the Post Office used when prosecuting sub-postmasters.

Blocking disclosure was a key part of the Post Office’s legal strategy as late as 2019, according to Donnelly. She said it sought to exploit an “imbalance of knowledge about the Horizon system” through withholding information. “They were trying to prevent key documents [from] being examined.”

Patrick Green KC, the lead barrister on the team, said: “We felt under enormous pressure to work all night to get this group of people what they needed. Vindication.”

He also cautioned that lawyers acting on instruction were unable to “choose sides”. “If a client wants to defend a case robustly, their lawyers must make sure that they adhere to their obligations.” He said this differed to misconduct where necessary action by regulators needed to be taken.

Seema Misra, wrongly sentenced in 2010 to 15 months in prison for theft while eight weeks pregnant, told the inquiry in February last year that evidence proving her innocence had been deliberately withheld. Throughout her trial, Misra’s barristers were denied access to the data logs required in her defence, the inquiry heard. Her conviction was quashed in 2021.

Documents published by the inquiry this month showed that three senior Post Office lawyers, Rob Wilson, Jarnail Singh and Juliet McFarlane, were notified of bugs within the Horizon system when Misra went to trial.

In early December, the inquiry published emails that showed Singh argued requests for data were “unreasonably and unnecessarily” being raised by Misra’s defence. In a separate email he said that the relevant data was “time consuming and expensive” and he sought to limit the timeframe of any requests. Singh denied claims he blocked disclosure on cost grounds.

In December, the inquiry heard that the Post Office was advised by lawyers at Peters & Peters in 2021 to consider referring Wilson, Singh and McFarlane to the Solicitors Regulation Authority after their conduct was deemed “capable of amounting to a serious breach” of regulatory rules. At the time Peters & Peters told the Post Office their recommendation did not amount to a concession that any rules were broken.

This included deploying tactics where sub-postmasters were accused of theft without sufficient evidence to pressure them into pleading guilty to lesser charges, the inquiry heard. Wilson declined to comment. Singh did not respond to a request for comment. McFarlane is deceased.

The Post Office, as a prosecutor, had an obligation to tell defendants about exculpatory evidence. The matter of cost is not a legitimate excuse against disclosure, according to Richard Moorhead, a professor of law and professional ethics at the University of Exeter.

Moorhead said disclosure failures seemed to be one of a series of tactics deployed by the Post Office’s lawyers to protect the businesses’ reputation. He added that the Post Office depended on its lawyers to maintain its reputation, uphold previous prosecutions and deter claims that its systems were defective.

Paul Marshall, a barrister who represented victims during a landmark Court of Appeal case that overturned 83 sub-postmaster’s criminal prosecutions in 2021, known as Hamilton vs Post Office, said lawyers instructed by the Post Office appeared to have been driven to “compromising ethical standards” due to pressure from the client to preserve its reputation.

Marshall highlighted the case of Lee Castleton, a sub-postmaster in east Yorkshire, who was left bankrupt after a judge awarded the Post Office £321,000 in costs and fees following claims he had stolen £26,000. Castleton was exonerated following the 2019 group litigation.

Castleton was forced to represent himself after he exhausted legal insurance on a counter claim. Post Office lawyers in an internal meeting discussed subjecting Castleton to an “ambush” at his trial by serving him with 15 witness statements shortly before the proceedings.

His trial was treated as a test case by senior Post Office officials, evidence to the inquiry revealed. Richard Morgan KC, the barrister instructed in Castleton’s case, denied in September that he had set out to ambush him.

However, he recognised that the case itself had been disproportionate given the disparity between the amounts Castleton was accused of stealing and the money the Post Office spent on the litigation. “I thought it was commercial madness,” he told the inquiry.

Professional regulators are awaiting the conclusion of the inquiry. The SRA said it previously warned solicitors on matters such as abusive litigation or Slapps — strategic lawsuits against public participation — that they were not “hired guns” and that “client’s interests [do] not override wider public interest obligations and duties to the courts”.

The Post Office said: “It would not be appropriate to comment outside of the continuing inquiry set up to independently establish what went wrong in the past and accountability for it.”