Post Office Horizon affair is exposing a wider 'debt' collection scandal – Brian Wilson

As Brian Wilson recently found out, private agencies can be tasked to recover debts by public bodies even when no money is owed. How many people simply pay up?

Evidence to the Horizon inquiry into the wrongful convictions of postmasters continues to shock and will provide a permanent warning of what goes wrong when loyalty to an institution supersedes justice or fair play. In 2014, at least a decade after plentiful evidence was available about the system’s failings, the Post Office’s government affairs director advised the chief executive, Paula Vennells, not to allow “the self-indulgence of malcontents” to “pollute our public service mission” by admitting fault with Horizon. Chilling stuff.

While Horizon is unique in scale as a miscarriage of justice, I hope the inquiry also leads to wider consideration of how the law on debt recovery operates. The pursuit of postmasters was based on threats and fear – pay up or we’ll send you to jail. Faced with that lonely choice, many succumbed regardless of guilt and paid prices up to, and including, death.

My guess is there are many mini-Horizons under the surface where people, isolated and without recourse to legal advice, face an overbearing system that puts power in the hands of public and private agencies to enforce collection of disputed debts. These legal processes and criminal protection rackets are based on the same principle – pay up or we will do you damage.

Some Post Office staff who were wrongly accused of taking money handed over the disputed sum to avoid prosecution (Picture: Carl Court/Getty Images)

At Holyrood this week, the verbal contortions of Dorothy Bain, the Lord Advocate, were, I suspect, as unconvincing to herself as to those listening. A hole had been dug on Horizon pardons from which politics demanded she should extract herself.

Westminster not interfering enough

In January, Ms Bain made clear she had no intention of going down the road of mass exoneration for postmasters. Some, she said, were guilty and each case had to be pursued on its own merits. This set her apart from the UK Government which, rightly or wrongly, opted for mass exoneration, even if it meant a few guilty parties getting off. That position has now been adopted by the Scottish Government with Ms Bain falling into line.

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So far, so straightforward. Meantime, however, the Scottish Government and in particular its Justice Secretary, Angela Constance, attempted to contrive a political “row” based on a reversal of the usual script. This time, Westminster wasn’t interfering enough in devolved powers.

Ms Constance has been expressing outrage because the UK Government did not include Scotland in its legislation rather than leaving Holyrood to sort it out for itself. This was either audacious or plain stupid, depending on one’s predisposition.

Just imagine the potential for grievance if Westminster had said: “We don’t actually care what your Lord Advocate thinks, or for your separate legal system.” It was entirely proper for Whitehall to leave Holyrood to legislate for treatment of Scottish cases under our distinctly different legal system.

Failure of prosecution system

Ms Bain has gone the whole hog and debarred the Post Office from being a specialist reporting agency, which effectively gave it the powers of the police to investigate its own cases. Quite right too. That still leaves more than 50 specialist reporting agencies which are to receive letters telling them to be on their best behaviour.

What Ms Bain’s statement did not address was the failure of the Scottish prosecution system to put a stop to the Horizon cases long before it did. Unlike in England, the Post Office did not have powers of prosecution which remained a matter for the Crown and procurator fiscal service.

That should have been a vital safeguard which could only work if every Procurator Fiscal examined the evidence in each case. Confirmation that this did not happen emerged when the inquiry under Sir Wyn Williams used as a case study one in which a North Uist postmaster was wrongfully convicted on a lesser charge after bowing to threats about going to jail. He died before the conviction was overturned.

Relying on ‘candour’

The Post Office investigators in this case who gave evidence to the inquiry were deeply unimpressive and unqualified. Yet the procurator fiscal in that case recalled: “I don’t know if there were any safeguards. It was understood by the reporting agency (the Post Office) that they had to have a duty of candour.” On that basis, cases were waved through without anyone joining up the dots.

In theory, the Scottish system is superior to the English one because it retains the principle of independent prosecution and, logically, this should mean that there are particular lessons to be learned. One of these is that the “candour” of self-interested or incompetent organisations, public or private, should never be relied upon in the justice process.

‘Action to collect what you owe’

I recently received a text message from a number I did not recognise. It read: “Hi, we recently contacted you about your account. It’s important you call us now." I almost dismissed it as a scam as I hadn’t been contacted about any account. However, I made the call and found it was from a private enforcement agency working for HMRC.

Eventually – and, of course, they make it as difficult as possible – I got through to HMRC who confirmed there was no debt, yet the correspondence about “action to collect what you owe” kept coming. HMRC are one of the specialist reporting agencies. I wonder how often their computers make mistakes and hand over unfounded cases to private debt collectors?

The tactics deployed by these outfits, whether on behalf of public or private clients, are based entirely on threats. They are not remotely interested in evidence or proof. Their job is to extract money. Most people on the receiving end have little idea of how to defend themselves and often pay up as the course of least resistance – just as they did in many Horizon cases.

It is an area of law which requires massive overhaul and maybe it is one in which Scotland, given our different legal system and theoretical protections, really could take the lead.