The government announced on Wednesday that it would quash the convictions of hundreds of post office operators.
However, the decision to do so by passing a bill declaring each operator innocent has attracted concern from judges and lawyers.
Here, four legal experts analyse the government’s plan and explain why it is causing some concern.
Vikram Sachdeva KC
Former chair of the Constitutional and Administrative Law Bar Association and member of the Independent Review of Administrative Law
There is good reason for lawyers’ disquiet over the government’s plan to introduce legislation to overturn the criminal convictions of those post office operators found guilty of various financial offences.
The normal way criminal convictions are challenged is by means of an appeal to the criminal court. This procedure respects the important principles of the rule of law and the separation of powers, under which parliament makes the law, and the courts carry it out.
The Criminal Cases Review Commission exists to investigate potential miscarriages of justice and refer them to the appeal courts, and they have done so in 70 Post Office cases. However, it is likely that there are many more of the original 983 convictions that are unsafe by virtue of the Horizon system and should be overturned.
The big problem with leaving it to the criminal courts is that the court system is underfunded and it would take years for all the cases to be determined.
But as long as it is generally understood not to represent any sort of precedent for parliament to be able to retrospectively overrule any court decision – which would be a dangerous incursion into the rule of law – the government’s approach can be commended as a pragmatic response to a pressing and difficult problem.
Isobel Plumstead
Retired judge and former president of the Council of HM Circuit Judges
I tried one case concerning the Post Office in the 1990s that could have been an early example of a Horizon problem. I do not recall computer problems being mentioned at the time of the trial but the case nonetheless caused me concern. Once I learned of the widespread difficulty concerning Horizon and the Post Office, it caused me even greater concern.
I’m dismayed that it’s taken so long for this saga to come to public interest: I‘ve been reading coverage in the broadsheet press and Private Eye for many years. The losses to former post office operators are not simply financial – most have suffered incalculable harm to their reputations.
But exoneration by act of parliament is a dangerous path to go down. It is overriding the whole judicial system. It will inevitably lead to pressure for action in respect of other findings in criminal cases where a sort of moral right to exoneration is urged. In my view, it’s an open door for anybody to come along later and say: “Well, what I’m doing isn’t really wrong either.”
As far I understand it, the Post Office has been singularly obstructive during the inquiry in terms of producing documents and records but an alternative to this blanket acquittal is that the court of appeal uses its capacity to allow applications for leave to appeal “out of time”. It could expedite hearings then quash the convictions.
Not only could this approach deal with criminal convictions but it has the advantage of being able to revisit civil determinations, such as the case for the poor subpostmaster who was ordered to repay £27,000 through the civil courts – and all the Post Office’s legal costs too.
Nicholas Cooke KC
Retired recorder of Cardiff, judge at the central criminal court and additional judge of the court of appeal (criminal division)
I am very concerned that the proposed legislation will have the effect of covering up the extent to which failings in the criminal justice system allowed this appalling miscarriage of justice to occur.
Legislation preventing the victims from receiving individual attention for their cases and a full and proper exoneration (rather than a declaration that they are one of a group of which the great majority were not guilty) should be regarded as unacceptable.
In 2003 and 2004, in two cases, Chaaban and Jisl, the then lord chief justice strongly stressed the need to take into account cost and time management in dealing with crown court cases. That is, of course, good advice, but it carried with it the risk, illustrated by what has happened in the Horizon cases, of difficult trials being dealt with inadequately because the time sought to be taken, for example on testing computer evidence, appeared disproportionate. That is what happened.
As the consequences of underfunding, the reduction of judicial sitting days, and the resulting pressure on crown court judges increased, the malign unintended effect of this stressing of cost and time – at the potential price of failing to protect the innocent – developed.
Those who tried to raise concerns were in an impossible position. Tragically, the Post Office scandal, it appears by prosecutorial misconduct, was allowed to grow unchecked on a massive scale. The collapse of faith in the system led to unjustified guilty pleas. Given the miscarriages of justice, in particular during the 1970s and 80s but also later, the risk of prosecutorial misconduct and inadequate disclosure should have been at the forefront of the collective judicial mind. (The Guildford Four, the Birmingham Six, the Maguire Seven, Judith Ward, the Bridgewater Four, and the Cardiff Three spring instantly to my mind). It does not seem that it was.
Putting things right is now a massive task. It is astonishing that this decline has occurred over so long a period, without one of a succession of lord chief justices having exercised their power to lay before parliament, written representations on matters that appeared to them to be matters of importance relating to the judiciary, or otherwise to the administration of justice.
How could matters have been allowed to get to a state where a systemic miscarriage of justice continued so long and, which when discovered, the criminal justice system hasn’t got the capacity to address – without such a power having been exercised?
Nicholas John Coleman
Retired as a circuit judge in 2015
I am pleased that this group of people who have suffered have finally been recognised and are being compensated. It is of course right to act quickly but I am concerned that it sets a precedent and proper process, in my view, should have been followed. Other wronged groups are entitled to seek to persuade parliament that they should be the subject of an act of parliament.
It has not been explained why parliament is acting without waiting for the outcome of the Williams inquiry, which is bound to make recommendations. It has not been explained why the case papers of the wronged post office operators have not been obtained, copied and reviewed.
Proper process should be by the use of the judicial system: the Criminal Cases Review Commission and the court of appeal. At the very least a panel of lawyers: judges or KCs, retired or otherwise, could have been asked to screen the cases.
