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Mind the Forensic Gap. Filling the “I Can't Recall” spaces
- Jun 3, 2024
- Latest Journal
By Ian Ross
The (in)famous Post Office scandal is rightly classified as the biggest miscarriage of justice in English legal history. But there are notable distinctions in this case. The first being that this scandal is totally different to the ‘Guilford 4’ and ‘Birmingham 6’ cases where crimes had been committed but the wrong people were convicted. But the Post Office Executive prosecuted innocent people with no crimes committed at all. Engineering false prosecutions from nothingness in a toxic Orwellian-esque regime triggered by Post Office management. Mechanised by spending incalculable millions of taxpayers’ money to bring 736 malicious prosecutions. Hallucinatory allegations, based in bigotry and misinformation. But greasily factored-in was fraudulent ‘performance’ bonuses, both incentivising the defeat of ‘enemy’ postmasters, whilst simultaneously feeding internal corruption at every level in the organisation.
Over 40 years of both investigating and reviewing investigations I am accustomed to seeing errors, even incompetent investigations. Up a level; biased investigators in employment orientated cases who act at the behest of their clients (paying their fees) with an investigations’ approach devoid of objectivity and thick with employee intimidation tactics. HR Managers commonly work in the same way. But the Post Office cases were well beyond ‘incompetence’ when the line from obfuscation to corruption was not only crossed, it was vaulted over. This quickly profiles a Post Office investigator ‘involved’ to be a liar, a fabricator, a buck-passer, and a pathological rule-bender.
In 2019 the Post Office was sued in the High Court. Later the Court of Appeal (UK) handed down judgement with a level of severity rarely heard. Convictions were quashed, but not due to being ‘unsafe’ as is the norm. The cases were held to be an ‘affront to the public conscience.’
The ensuing public inquiry (the ‘Williams’ inquiry appointed in September 2020 representing wrongly accused postmasters) requires evidence to be given under oath. But it is not surprising to see (those) post office investigators giving evidence using spurious denials with hackneyed claims of “not recalling” events concerning their previous corruption and investigative malpractice. How ‘investigators’ with no knowledge of criminal law or investigations’ training acted as a maladjusted ‘Groupthink army’ working to targets in hounding and ‘setting up’ hundreds of innocent postmasters who never stole a penny.
Post Office lawyers were proved to have been ‘directing minds’ in offering fictitious ‘plea-deals’ to entice postmasters, saying they ‘won’t go to prison’ if they plead guilty to a “lesser charge” but going to prison is exactly what happened.
This item therefore tracks a series of causal links between elements of a scandal constructed on abuse of process and a corporate governance disaster. We lead up to and examine reasons why former post office investigators et al even now see it necessary to resist the need for integrity despite being presented with cogent evidence of their previous conduct. It all includes alleged perjury, perverting the course of justice, and ironically, fraud.
‘Under the ‘Horizon’
The crux of the matter is an IT accounts system called ‘Horizon’ installed by the Post Office in 1999. It was riddled with technical faults. Designed by the ‘Fujitsu’ company, the system produced false data; non-existent ‘shortfalls’ in postmasters’ on-site computer terminals. Hence, this scandal centres on a powerful ‘reputation-first’ cultural mantra. Despite Post Office management having full knowledge of this faulty system, they pushed a diktat that the system was ‘robust and reliable’ when it was not. Consequently, postmasters were persecuted. Had their lives destroyed by a grotesque prosecutions policy that saw innocent people put in prison. Others were bankrupted, lost their homes, made unemployable because of false criminal convictions for theft and false accounting. Most horribly, some postmasters took their own lives with the stress of ‘gaslighting’ bullying and direct threats made by Post Office managers and lawyers.
Groupthink
… ‘When all think alike, then no-one is thinking’ …
Walter Lippman
‘Groupthink’ is an entity that is either productive of encouraging healthy team synergies and culture, or to the extreme opposite, immeasurably dangerous. The Post Office Executive along with its corporate partner, Fujitsu, are firmly set in the latter context.
American psychologist Irving Janis described key symptoms of groupthink:
1. Invulnerability. Members of ‘the group’ share an illusion of invulnerability of being non-accountable no matter the level of ‘team-corruption’ applied. That, creates excessive optimism and encourages taking abnormal risks. The abuse of process shows brazen legal risk-taking. (Influenced ‘from above’ at the Post Office?)
2. Rationale. Group ‘players’ ignore warnings and negative feedback (i.e., complaints about the Horizon system) that could cause ‘the group’ to reconsider their previous assumptions.
3. Stereotyping. ‘The group’ (i.e., post office lawyers, investigators, auditors, management, Fujitsu managers) possessed bigoted, prejudicial views of their “enemies.” Rationalising their own prejudices instead of the evidence.
4. Pressure. The group apply direct pressure to ANY individual who momentarily expresses concern or doubt about the group’s shared views. (One who ‘isn’t on board’)
5. Illusion of Unanimity. That the majority view and judgments of ‘the group’ are unanimous. This surely extended to well-intending defending lawyers also who advised clients to plead guilty.
6. Mind Guards. Certain groupthink ‘members’ appoint themselves as mentors to protect the group and group leader from information they deem ‘problematic’ or contradict the group’s decisions in that bizarre cohesiveness.
In essence, adverse Groupthink values a sordid harmony and coherence over accurate analysis and critical thinking. The fallout from that was pre-emptive bias being grounded in at the outset. Best practices were in reality ‘worst practices’ 736 times over.
The Investigations. ‘Reverse Criminality’
We now examine metrics of the conduct of the investigations. This was ‘Groupthink’ and conspiratorial-dominant behaviours at work that set investigations off in a tribalistic direction.
One example is Post Office ‘technicians’ who altered the data of postmasters’ terminals remotely; tantamount to ‘planting’ evidence of theft. That, was compounded by other professional conduct failings and behavioural anomalies by PO investigators. These included CPIA (disclosure) violations, fabricating evidence, ‘interrogations’ involving threats and insults. Even ABDUCTION to get people into interview rooms – and locking them in. Destroying defence-related evidence (shredding documents that proved faults in the Horizon system). Added to threatening phone-calls, and other intimidation by investigators hounding postmasters.
“I Cannot Recall” Dismantled
Investigative psychologists referring to the term ’schema’ probe decisions that either predispose a criminal act or conduct designed to conceal it. With this (statutory) inquiry in view, a “cannot recall” reply is not a “gap in memory” but output of one’s decision to say those words. We need to ‘get behind the words’ to reveal those inquiry witnesses with patently dishonest cognitive-linguistic propensities, or those prone to impulsive situational truth-masking verbiage when cross-examined.
Granted there may be an occasional PO / Fujitsu witness affected by confabulation (an often-chronic mental condition affecting memory ‘replacement’ - not to be confused with 'Groupthink')
Important also, is that responses under oath in a statutory inquiry are not interviews under caution. An inquiry, be it fact-finding, is not ‘obtaining evidence by questioning' like law enforcement (PACE 1984) to charge an offence. But lying about material facts under oath is prima-facie perjury. So, can an “I can’t recall" utterance be evidentially viable, sufficient to establish a case of perjury by itself?
Moving wider, what inferences with cogent evidential weight can be drawn from supposedly not being able to "recall" tangible metrics, adverse routines and time and event detail occurring during one’s professional role?
Dimensions of Resistance
It is usual for a forensic interviewer to encounter ‘numbers people’ and to the opposite, people with flamboyant personalities. They who use unnecessary superlatives: “Absolutely.” “Tremendous.” “Literally!” Others use phrases like, "In all candour" or "If I'm being completely truthful" or "If I had to swear on a stack of Bibles." One idiosyncratic response from a (now convicted high-profile) fraudster was, “I’m not a fraudster, I’m a misunderstood eccentric.” Then there are those conversational bullies who never stop talking and shutting down questions.
With “I can’t recalls” mixed in, this in my view heralded a need to work with an innovative formula to decipher these variables.
Hence, the dimensions illustrated below (at the end of the article) are not of a tick-box nature or single-application, or siloed typologies. The model, originally designed by Professor Eric Shepherd is adapted by me regarding the Post Office inquiry. Effective use of the dimensions means applying the response(s) together with any informing issues, to the model and assessing them. It may be that one individual connects to and interfaces with two or more dimensions.
- Willingness to Talk does NOT always mean willingness to Explain.
A rhetorically-intended ‘willingness to talk’ can also mask a tactical means of ‘buying thinking time.’ Articulate interviewees (which now includes the Head of Fujitsu in his televised cross-examination) will first, repeat the name the questioner, earnestly thank the questioner for ‘such an important question, etc. Then tenuously repeats the question and embroiders it. Then enters into lengthy platitudes of ‘how serious an issue’ it is. Then a lengthy rendition of ‘what needs to be done’ and ‘how important that is’ in delaying and stalling in nothing more than virtue signalling with a twist.
I counted up to 25 – 30 seconds before a witness finally got to answering the question. So be in no doubt that these polite, and blatantly rehearsed dignified responses – complete with looking doey-eyed at the hearing, is NOT co-operation. This is passive resistance-blocking.
- Ability to Tell can apply to combinations of ability to tell but refusal to answer, and equally, the ‘show-boater’ who chooses to be a ‘smart-alec’ showing bravado. When the forceful enunciation of “I can’t recall” has an “I would never do that” statement smashing in behind it. That attitude, dimension of resistance demonstrates a professional ‘ability to tell’ by way of her\his professional background and PO manager position. But ethics are nullified by an abject refusal to co-operate and boast about it at the same time. “I can’t recall” responses are dropped into the testimony sporadically and conveniently – not robotically, like some. This creates an indefensible outcome of shielding personal guilt,
The ‘Coded Response’ interfaces across several of the dimensions. One Fujitsu manager strongly demonstrated that he is still chronically affected by Groupthink. The ‘Ability-to-but-unwillingness to-Talk’ correlation was prominent, supported again by the person’s position and role. The resistance blocking was a direct refusal to acknowledge one single scintilla of fault concerning (him) circulating ‘hate emails’ in house against an innocent postmaster, and giving pep talks to an IT engineer to ‘make an example’ of that postmaster who then gave ‘technical-but-highly-perjured’ evidence in court. But in a paradox, the number of ‘I can’t recall’ responses ratcheted up as the cross examination progressed.
The unwillingness to talk is usually by the liar or half-truth teller. In this case, the individual provided short, snappy, cut-off replies: “not my problem” (stop). “Horizon was a contractual problem” (stop). “I remember nothing about it” (stop). Can recall the problem but ‘can’t recall if he could recall’ it being indulged by him in his management role. This person was not so much a liar, but certainly a denialist.
Another Fujitsu IT employee with no legal background or training invented his own version of section 69 Police and Criminal Evidence 1984 (credibility and admissibility of IT evidence) and slipped this into his witness statements with no evidential substance to support it. Misapplied the law he had no clue of, and directly supported the imprisoning of innocent postmasters. A proven liar, proven to be so by a High Court judge. Falsified evidence in criminal prosecutions that convicted innocent people. Said “I can’t recall” ten times in the first hour. This is the liar distinct from the ‘coded-response’ user.
A former Post Office lawyer using lengthy and thoroughly nauseating nuanced responses. This was full-on resistance from a conversational bully who constantly talked over counsel for the inquiry whilst simultaneously making the most ludicrous comments and responses imaginable. When “I can’t recall” became more than a cliché and taken into new dimensions. A lawyer who headed a Post Office criminal law department who “couldn’t recall” if he “had possibly or not” written his email” that could have been written by someone else that he “may or may not have read”? That attitude carried with it an element of cowardice. So much so that the witness pleaded to the Inquiry Chairman (Sir Wyn Willams) to halt the proceedings so he could consult with his lawyer. Most unorthodox by one drowning in his own rhetoric.
Another lawyer who threatened a post master he would “ruin him” advanced the professional level of idiosyncratic responses to questions.
Besides the number of ‘verbal dysfunctionals’ ("ums’ and ‘er’s” and hm'hms") note particularly how the witness:
- Stalled the questions, i.e., "I need to put that question in context", i.e. slapping down and fragmenting the question to suit his narrative. Then going on to subtly and fatuously re-invent the question and thereby present a deflective and tenuous denial or evasion.
- Repeating and reading back his own statement.
- Talked all around the houses when asked simple questions around disclosure.
- Fidgets with his file papers when uncomfortable under questioning.
- In the morning session, was good at making speeches (including arrogant contempt for wronged innocent postmasters) and tried to ‘talk out’ the cross-examination time.
- “I can’t recall” responses made up the rest of his acidic verbiage.
“The more you deny, the more you admit.” Possible? Most certainly!
In investigative psychology we use the term 'interpersonal coherence' which is a consistency between the way offenders interact with their victims (which in this ‘PO’ investigator’s case were innocent postmasters). And how offenders act in their everyday lives towards their victims (such as 'like-minded' investigators and Post Office lawyers)
A highly publicised (and televised) cross examination was of an ‘experienced Post Office investigator’ who indulged many of those disgraceful behaviours. Even counsel for the inquiry asserted that this individual had, quote, “left a heavy footprint on the scandal.”
In the witness box, this investigator conducted himself appallingly. With his gnarly verbals couldn’t even say “false accounting” coherently. But the game plan backfired when (he) threw another investigator under the bus, imbued with his own admission of himself signing a section CJA 9 witness statement(s) that he hadn’t even written!
Hence, an innocent postmaster was convicted on fabricated evidence. The testimony being perverse 'documentary hearsay' that with misguided obedience he put his signature to. It formed prima-facie evidence of the ‘not believed his own evidence to be true’ point to prove for perjury. Forcefully denied but effectively admitted to by passing the buck. Being a (quote) "small cog" isn't even mitigation. Signing that witness statement was indubitably a decision to act in a way geared towards the outcome that occurred - malicious prosecution.
Conclusion
It was a bilious experience seeing Post Office ‘witnesses’ giving evidence. Those who de-facto committed crime themselves in order to accuse others.
But one question remains: “what happened to the monies falsely claimed from postmasters”? Did it pay ‘the’ bonuses? If, investigators knew of the faults in the Horizon system (which certain investigators admitted to publicly) then this is criminality by fraud. Another reason for selective amnesia?
Author
Professor Ian Ross
Investigative Psychologist. Professor of International Law, Financial Crimes expert
PhD, MSc, Dip Forensic Psychol (Specialist), ACFS, FCMI, PGCE
