Dr Minh Alexander retired consultant psychiatrist 27 July 2023
Questions have been raised about whether Post Office Ltd treated ethnic minority postmasters less favourably in its discredited Horizon prosecutions. There was also a question of harsher sentences for such postmasters.
The Communications Workers Union published this challenge last year:
Post Office Horizon scandal – was racism an issue?
At that point, the Post Office refused to provide a full list of the individuals convicted for Horizon issues.
“Eastern Eye’s request for a list of the 738 postmasters who were convicted between 2000 and 2015, in order to investigate the matter further, was rejected by The Post Office for, in their words, ‘data protection reasons’.
El Shaikh @ElCShaikh a campaigner who has supported her local postmaster and the harmed postmasters generally, recently unearthed evidence of Post Office Ltd (POL) using outdated and offensive racial terms such as “negroid” to describe the individuals whom it had prosecuted.
FOI request Post Office Investigations Compliance 2008-2011
FOI disclosure 19 May 2023 by Post Office ltd – FOI2023/00205
POL disclosed internal guidance on prosecutions which required the collection of “identification codes” based on race:
These loosely map onto the identity codes used by the police for rapid visual assessment by officers, in the field.
“The 6+1 codes are essential for rapid identification and also speedy transmission of information by communication systems.”
For example, this is information on IC codes from a Metropolitan Police Authority internal guidance document from March 2007:
However, the police are also required to use self-defined ethnicity codes, including where a suspect’s self-assessment differs from an officer’s visual assessment:
“The Home Office requires Section 95 Criminal Justice Act 1991 (a statutory framework providing data about Black and Minority Ethnic people and the criminal justice system) information to be provided in both SDE and visual assessment formats.”
“Self-defined ethnicity does not relate to visible appearance but to a person’s self-image in relation to his or her own cultural origins. Where it is to be used, a police officer must record the SDE category chosen by the person encountered, even if the category chosen is clearly at odds with the officer’s visual assessment.”
Related to the gathering of ethnicity data, the public sector duty to promote Equality, applies both to public bodies and bodies which exercise public functions.
As a wholly publicly owned company discharging a function such as prosecution, it would be reasonable to expect that Post Office Ltd should adhere to the legal public sector Equality Duty and to “Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.”
POL’s exercise of prosecutorial functions, which has included joint working and sharing intelligence with public bodies, would seem to fall under the definition of a public function as advised by technical guidance given by the Equality and Human Rights Commission:
“A.1
As the law presently stands, a private body might be held to be exercising a public function and thus subject to the general equality duty if, in respect of that function, some or all of the following factors are present:
it is publicly funded, or has significant reliance on public funding
it is exercising powers of a public nature directly assigned to it by statute
it is taking the place of central or local government
it is providing a public service
it is acting in the public interest
its structures and work are closely linked with that of the delegating or contracting-out State body
there is a close relationship between the private body and any public authority
it is supervised by a State regulatory body, or
it is exercising coercive powers devolved from the State.[1]”
The public sector Equality Duty requires the collection of evidence, to demonstrate an organisation’s level of Equality practice and to monitor progress.
“5.15 In order to give proper consideration to the aims set out in the general duty, a relevant body will need to have sufficient evidence of the impact its policies and practices are having, or are likely to have, on people with different protected characteristics. Such information is referred to in this guidance as equality evidence.
“5.1 If a body subject to the duty does not have sufficient evidence to make an informed decision about the impact of their functions for some protected characteristics, the authority should consider gathering more evidence.
The Post Office’s publicity material suggested that the company was not routinely collecting Equality data on postmasters, with this explanation:
“We don’t collect data on the ethnicity make-up of our Postmasters. The main reason for this is that there are a number of different ways of becoming a Postmaster. You can be an independent Postmaster who runs your own Post Office. But we also have Post Offices operated by our Strategic Partners, for example WH Smith, Tesco, Co-op and Spar. They employ staff to run Post Offices. Some Post Offices are also run by registered companies or as partnerships trading as a business.”
However, the POL blog does reveal:
“There are over 7,000 independent Postmasters and around 1,300 completed the survey. Almost one in three (29%) described their ethnic group as Indian, 6% described it as Pakistani, 1% Bangladeshi, 8% any other Asian background and 1% a mixed White and Asian background. Whilst these stats cannot be deemed statistically representative of the whole independent Postmaster population, it nevertheless gives an insight into why it’s so important that Post Office celebrates and champions South Asian Heritage Month”
Moreover, an FOI request on 30 May 2022 by Gurpreet Kaur via the What Do They Know website revealed that in 476 cases of postmasters “convicted potentially using evidence from the Horizon system”, ethnicity was not recorded in 160 cases. Where ethnicity was recorded (in 316 cases), there were 123 postmasters were from Black, Asian or Minority Ethnic backgrounds. Or in other words, about 39% of the convicted postmasters were of Asian or other minority background, assuming missing ethnicity data for 160 cases was similar to the sample of 316 cases for which ethnicity was available.
I asked POL for more information about ethnicity data and possible equality impact assessments that might have been carried out on the Horizon prosecutions.
This is POL’s response:
The company indicated that it had not carried out any Equality impact assessment on Horizon prosecutions.
“Post Office can also confirm that, in response to Q4, it has not carried out any Equality Impact Assessments of convicted postmasters nor has it analysed the ethnicity data of those prosecuted.”
In the case of postmistress Seema Misra who was wrongly sent to prison whilst pregnant, leaving a ten year old son at home, the Post Office has not carried out any specific review:
“With regards to Q5, Post Office has not carried out any specific review of this case in respect of bias and/or race impact. Sentencing is of course solely a matter for the Courts.”
The imprisonment of Seema Misra raised not just Race Equality issues but also issues of Sex Equality. At the time of her imprisonment, female offenders and their families were recognised to have special needs and serious vulnerabilities. The 2007 Corston report had recommended that women should not be imprisoned except for risk of violence and that no woman with children should be sent to prison without a full social circumstances report:
“Custodial sentences for women must be reserved for serious and violent offenders who pose a threat to the public….Women must never be sent to prison for their own good, to teach them a lesson, for their own safety or to access services such as detoxification.”
“Defendants who are primary carers of young children should be remanded in custody only after consideration of a probation report on the probable impact on the children.”
The government’s response to the Corston report indicated that it intended to honour this recommendation:
“The Government has recently published a Review by Lord Carter of Coles, ‘Securing the Future: Proposals for the Sustainable and Efficient Use of Custody in England and Wales’. As a result of that Review, Ministers will consider the Government’s response to the broad thrust of Lord Carter’s recommendations in relation to the issue of women offenders. The intention is to ensure that, in making any changes in response to Lord Carter’s recommendations, the approach is appropriate for women and complements the commitments in this Response to the Corston Report.”
| Post Office lawyer bragged how team ‘destroyed attack on the Horizon system’ and put woman in prison “The Post Office’s former senior criminal lawyer, Jarnail Singh, described his team’s success as destroying the defence’s arguments against the Post Office Horizon accounting software.” “In the email, which was copied to several executives, Singh wrote: “After a lengthy trial at Guildford Crown Court [Seema Misra] was found guilty of theft. This case turned from a relatively straightforward general deficiency case to an unprecedented attack on the Horizon system. We were beset with unparallel [sic] request for disclosure requests by the defence. Through the hard work of everyone, counsel Warwick Tatford, investigation officer Jon Longman and through the considerable expertise of Gareth Jenkins of Fujitsu, we were able to destroy to the criminal standard of proof (beyond reasonable doubt) every single suggestion made by the defence. …” Gareth Jenkins, who was praised in the email, is currently under investigation by the Metropolitan Police for potential perjury in the trials of subpostmasters where he gave evidence.” |
It is also surprising to hear that POL believed they were not required to routinely record protected characteristics. The police and CPS have been collecting information about offender characteristics for many years.
The CPS introduced a Single Equality Scheme in 2006 which included the CPS’ Race Equality Scheme 2005-2008. This identified the following as CPS functions of relevance to Race Equality:
“The following key priorities were raised following the earlier consultation which took place as part of the development of the Race Equality Scheme 2005-08 and are included in this Scheme:
o Effective handling of racist crime, to include the elimination of inappropriate down grading of charges and increase successful outcomes
o Effective handling of religious crime, to include the elimination of inappropriate down grading of charges and increase successful outcomes
o Monitoring of terrorism related cases
oAssuring communities of the independence of the CPS in the context of Statutory Charging
o Charging of ethnic minority offenders
o Community Advocacy”
[my emphasis]
Despite omitting to even collect proper data on the protected characteristics of the people whom it prosecuted, and its refusal to conduct a retrospective equality impact assessment, Post Office Ltd claimed that it did not tolerate racism:
“We would like to make you aware that Post Office has instigated an investigation into the document in media reports you refer to. Post Office does not tolerate racism in any form and an update on the investigation can be found on our website here:
POL emphasised how much resource it was investing in responding to the charge of racism:
“Post Office has begun a search of all known active and historical documents to ensure there are no other documents that may contain racist or offensive language.”
“Post Office has appointedJeremy Scott-Joynt,a barrister from Outer Temple Chambers, as an external legal advisor to review all evidence, contribute to the direction of the investigation and assist in drafting the Final Investigation Report.”
It is a pity the same energy cannot be directed at a proper review of whether Post Office Ltd discriminated against BME postmasters in its Horizon prosecutions.
In keeping with a theme of reputation management, POL was keen to distance itself from its past leadership:
“Since the 2019 change of leadership, Post Office has been clear that it will never again carry out its own prosecutions.”
I have asked POL to provide the early CPS guidance which it claims did not require it, as a prosecutor, to keep records on the protected characteristics of people who it prosecuted.
I have also asked the Post Office if it ever established formal data collection on the protected characteristics of those whom it prosecuted.
It seems a very serious matter that a prosecutor appears unable to account for whether it treated ethnic minorities fairly, when there is evidence that the organisation has used racist terminology.
The more so in a matter of such grievous and widespread miscarriage of justice.
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Alexander's Excavations 
Thank you for continuing to appraise and probe the various reprehensible aspects of the Post Office scandal.
The case of Seema Misra is, in itself, evidence that the P.O. and, by association, those involved with its operations, abject failures.
Her appalling treatment tells us everything we need to know about ‘them,’ as you have recorded. I can only imagine how much Ms Misra suffered and can only hope that she is managing to recover and reclaim her rightful place in society.
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