The Real Lessons from British Justice

Yet another major miscarriage of justice has surfaced in the UK – to add to those which have plagued the poor suffering Brits, be it Hillsborough, Grenfell or the Birmingham Six, The current issue of the New Statesman expresses it most clearly - 

As a miscarriage of justice, it is perhaps unrivalled in British history. Between 1999 and 2015, at least 3,500 sub-postmasters were wrongly accused of theft, fraud and false accounting by the Post Office. The fault lay with the defective Horizon IT system, which incorrectly suggested that there were financial shortfalls where none existed.

Trapped in a Kafkaesque nightmare, workers protested their innocence, but this did not stop them being trampled upon. More than 700 sub-postmasters received criminal convictions and 236 were imprisoned. Others were forced to pay back tens of thousands of pounds and suffered financial ruin. Family homes were lost and marriages destroyed. At least four victims are thought to have taken their lives as a consequence.

For years, this story has played out in the background of British public life. In 2019, a group of campaigners led by Alan Bates – the Justice for Subpostmasters Alliance – won a major legal victory when the High Court found that the Fujitsu-developed Horizon system contained “bugs, errors and defects”, and that there was a “material risk” that financial shortfalls in branches were caused by it. Dozens of Post Office workers subsequently had their convictions quashed by the Court of Appeal in 2021.

A police investigation and an independent public inquiry into the scandal were also launched during this period.

But it has taken a TV show – “Mr Bates vs The Post Office” – to give the affair the political prominence it deserves. The four-part series, which was broadcast on ITV at the start of this year, is testimony to the power of drama. 

But it was one of my favourite blogs – Stumbling and Mumbling – which put it all in the necessary perspective – 

A well-ordered society has mechanisms which prevent such people getting power or doing much damage if they do get it. The Post office scandal shows that we lack such mechanisms, in at least four respects: 

 - There's good evidence that companies actually select for psychopaths. People who are unusually concerned with status and power are precisely those who aim for the top of hierarchies (whereas many others of us just want to get on with our jobs), and psychopaths' superficial charm and fluency appeals to hirers. As David Allen Green says, "the likes of Paula Vennells are always with us and will always somehow obtain senior positions." This is consistent with a finding by Luigi Zingales and colleagues, that a lot more corporate fraud occurs than is actually detected. What's more, companies also select for over-confidence as they mistake "competence cues" - the right body language or the illusion of knowledge - for actual ability. (All this might also apply to politics).

 - Ministers failed to control or to replace Post Office management, believing - in a remarkable example of not understanding the function of ownership - that it "has the commercial freedom to run its business operations without interference from the shareholder." Ed Davey distinguishes himself from the other ministers merely by being so uncouth as to have blurted this out in public.

 - Police for years did not investigate the likely fraud and perversion of the course of justice by Post Office bosses. The fact that they have begun to do so since the screening of the ITV drama reminds us that the Met is more concerned with PR than with justice. 

 - The courts failed to acquit innocent sub-postmasters, for systemic reasons discussed by David Allen Green. This was not an isolated miscarriage of justice; it occurred over 700 times. 

We should think of our main social institutions - markets, the democratic process, the legal system and so on - as selection devices. What we have here is evidence that these do not operate as you might think they should, not in one or two instances but systematically and persistently.

·      The Post Office board and government ministers did not select honest or competent bosses.

·      The police did not choose to investigate serious crimes.

·      And the courts failed to correctly distinguish between the guilty and the innocent. 

These, however, are by no means the only selection mechanisms which don't work as one might imagine they should. 

·       Politicians are selected for fanaticism rather than competence.

·       Financial markets often do not select the best investment opportunities, which is why we have asset price bubbles and under-performing fund managers.

·       Product and labour markets do not eliminate the "long tail of extremely badly managed firms" described (pdf) by Bloom and Van Reenen. Peer review often does not select the best academic research.

·       And the media does not select for informed expertise. 

Society's main social institutions, then, very often do not select the best or filter out the worst. Often, they do the opposite. What should we make of this fact? One reasonable inference is that it is just really difficult to make good decisions with limited information and so there will always be a great deal of ruin in the nation.

If this were all, though, we'd expect to see political activity and debate focusing upon how we might improve such mechanisms. But it isn't. Instead in recent years politics has been consumed with Brexit and other culture war issues. Which is of course yet another example of a selection mechanism: politics selects to focus on irrelevancies rather than more important matters.

This is part of a pattern. It's normal for people to neglect structural and societal forces and to pay more attention instead to individual humans. Which is why public anger is focussed upon Paula Vennells rather than the mechanisms that recruited and enabled her. People like a witch-hunt and are attacking Vennells in the same way that criminals attack nonces - to remind themselves that they are morally superior to at least somebody.

Even good people can inadvertently reinforce this tendency. In exposing the detail of the Post Office scandal there's a danger of missing the big picture. Both journalism (even when done well) and drama look more at human interest stories than at social structures.

And this suits the ruling class. It has long flattered itself that the system works because "good chaps" will be in charge. The fact that "good chaps" so rarely are - and that the Post Office merely joins a list of systemic injustices such as Hillsborough, Windrush and Grenfell - doesn't seem to undermine this complacency.

Which brings me to a concern. You might have noticed that I've avoided using the word "failure" to describe all these different selection effects. This is because they might not be failures at all. The fact that the powerful can enrich themselves at the expense of the powerless; that markets permit the incompetent wealthy to stay rich; and that politics is a clownish sideshow that avoids substantive issues all suit the elite perfectly well. Prem Sikka is right to say that the Post Office affair "has once again shown the UK to be a hotbed of corruption and cronyism where in pursuit of profits and private gains innocent people are bludgeoned to silence and submission."

It has thus shown what Marxists have long known - that law and justice are veils behind which lay exploitation and cruelty. The question for the establishment is how they might bring these veils back down.