Kay Linnell is a chartered accountant and certified fraud examiner practising as a forensic accountant, chartered arbitrator and an accredited mediator. She played an integral role in the Justice For Subpostmasters Alliance members (JFSA) case against Post Office’s Horizon computer system and continues to fight for justice for those affected. Here, she reflects on the changes she has experienced in the Expert Witness field during her time on the EWI Board and her ongoing participation in the JFSA victims’ Post Office claims.
Giving something back
I’ve been an Expert Witness since 1975. When I left my role as investigating accountant at the Inland Revenue, I wanted to give something back to the profession and help people understand the world of experts. So, I joined EWI, became a fellow, and was invited to join the Board in 2004.
EWI has always had judges on the governing body. We’ve tried to bridge the gap between judicial understanding/expectation and expert witness delivery, aiming to establish the best ethical way of presenting evidence to a court, jury or tribunal.
In October 2022, I stepped down from the EWI Board after 17 years serving the Institute. In that time, I’ve seen a huge amount of change within the field of expert evidence, as well as the role of the Institute.
The impact of reforms
The first reforms that really affected the role of Expert Witnesses were the Woolf reforms. Essentially, these called for the use of a single joint expert to save costs, instead of each party having their own experts.
Further fee restrictions were imposed on Legal Aid central government funded cases under the Sir Rupert Jackson reforms. The resulting lower fee restructuring meant that the pool of experts willing to take on work was much smaller.
The Jackson reforms were an attempt to reduce the cost of bringing cases to court. In practice, though, it’s meant that the prosecution team had almost unlimited funding, while the defence team are prescribed only limited options off a fixed fee list.
Since then, there have been further cuts to legal aid rates, so more and more experts can’t afford to accept such appointments. For high calibre experts to participate in such worthy cases, legal aid will have to be restored. But it’s unlikely to happen while the UK is paying off the pandemic borrowing costs. Until then, the pool of available experts will continue to be adversely affected.
The Horizon computer Post Office scandal
I got involved in the Post Office treatment of its sub postmasters (SPMs) because of my local postmistress, Jo Hamilton. My business partner used to drop into Jo’s shop to buy her lunch for court. One day, she found Jo in tears because of ever-increasing unexplained shortfalls in her business accounts.
As a forensic accountant, I wanted to try to find out how the loss had occurred. So, I volunteered to help using my accounting and expert skills and requested documents — only to discover that none were given to Jo, who was left without any documents for her defence.
It turned out, of course, that Jo wasn’t the only sub postmaster who was experiencing mysterious accounting shortfalls. At least 900 people had the same issue. And they were all using Fujitisu’s Horizon accounting software.
The move to mediation
A third-party team of forensic accountants, Second Sight, was appointed to lead an investigation. They found several systemic errors in the programming of Horizon and noticed that all the communication of financial data was down mobile phone lines, which dropped out halfway through processing.
After pressure from MPs, the Post Office agreed to take some of these cases into an interim mediation scheme to establish whether Second Sight’s findings were correct.
By this time, I was on the JFSA steering committee for the claimants, so I couldn’t act as an Expert Witness during the mediation. But I was able to use my expertise to brief a team of accountancy experts whom I trusted to do a thorough summary of SPM losses for a very small fixed fee.
The scheme was subsequently cancelled by the Post Office, but JFSA had obtained sufficient evidence to consider High Court action.
Heading to the High Court
JFSA decided to take some SPM cases to group litigation. We ended up with 555 claimants and five planned trials, with 4.5 million documents being disclosed.
After only two of the planned five trials, JFSA funding had depleted – mainly down to aggressive action by the Post Office. There was no choice but to opt for a mediated settlement. We got a settlement of the maximum that the Post Office was prepared to pay, but it still gave us only £11 million left to split between all the claimants. It took us 3.5 months to devise a formula to split such a small sum between them.
The outcome wasn’t satisfactory for JFSA or the claimants, but it meant we could seal the judgement. In turn, that meant that some of the claimants could appeal against their criminal convictions, have them overturned, and potentially personally sue the Post Office for wrongful prosecution and be awarded damages.
Ethical challenges
From an expert’s point of view, the key challenges of working on such a significant case are about maintaining independence, insisting on seeing all the relevant documents, and keeping high standards for expert evidence. Sadly, the latter wasn’t always demonstrated during the Post Office case and the JFSA litigation has certainly raised some interesting ethical concerns for Expert Witnesses.
The Fujitsu expert witnesses used by the Post Office to give evidence about the robustness of the Horizon system were flawed, as they failed to conduct any investigation before giving their evidence and have brought the expert professional into disrepute.
Although they are not EWI members, they can be criticised as they did not follow proper standards. As employees of Fujitsu, they were conflicted. There is a further moral question about whether in-house staff should have been allowed to be Expert Witnesses.
The Judgment referred two Fujitsu experts to the Director of Public Prosecutions following their evidence about the Horizon system. In addition, a Statutory Public Inquiry is ongoing, and there is an open investigation of BEIS, as the controlling government department of the Post Office, with the Parliamentary Ombudsman.
At the other end of the spectrum, the team of forensic accountants, Second Sight, did a very good job. They have a reputation of being fearless in their approach to expert evidence, and they have raised a positive profile for the expert profession.
A stark reminder for experts
If an expert doesn’t understand exactly what they’re providing evidence on, and they’re denied access to information they consider essential then they should refuse to give evidence.
Experts in the Post Office case about the Horizon computer system and its operation were used as tactical players, given the wrong instructions so they could defeat the other party. That can’t be right.
If this case has taught me anything, it’s that the problem is usually not with Expert Witnesses: it’s with those instructing them.
Time for change
My work for JFSA on Post Office cases is a hobby – I don’t get paid. I still spend one of two afternoons a week on it. I’m bound by honour to finish the job for the 555 GLO claimants, but it’s also about pursuing what I believe is right: one of the reasons I became an Expert Witness in the first place.
I’m hoping that my involvement in the JFSA cases will be completed by the end of 2024. Now my time on the EWI Board is over, I’ll be concentrating my work on forensic cases where I can make a difference for clients.
My plan is to work in the mornings and spend the afternoon on other hobbies I’ve not had time for in years. I’m also doing a part-time PhD about small and medium sized enterprises defending themselves against fraud. So, there’s plenty to keep me busy in the afternoons!