- It has taken an ITV drama
to prompt the government into taking immediate action to put right (insofar
as that is even possible) the terrible injustices and loss caused to the
sub-postmasters.
- None of the material that
was disclosed in the ITV drama was news to anyone. It had been widely reported in a number of newspapers and of course
there is both the damning civil judgment in 2019 and the damning Court of
Appeal judgment in 2021. But now
after the ITV drama the Government have suddenly deemed this urgent enough
to take steps to expedite the appeal process.
- In short, they are passing
legislation so that all postmasters convicted following post office
prosecutions in these matters will have their convictions removed and then
be entitled to compensation.
- On a pragmatic basis, I
welcome the step and it seems the quickest way to end the nightmare. The
sub postmasters are the biggest priority and anything that can be done to
expedite the end of this should be done.
- That said, I have a number
of concerns. This is another
example of the Government effectively intervening and potentially
undermining the independence of the courts. Many people were up in arms when
following the Supreme Court judgment on Rwanda the Government simply
passed a law saying that Rwanda was safe.
In other words, the Government did not respect the court’s decision
and so they just passed a new law to get round it. This threatens and undermines the
independent and integrity of the court and clouds the division between the
State and the Court and the respect by the State for the court system.
- In this situation, which the Government are fairly describing as
exceptional, they are simply
removing the court from the process and just passing a law that removes
these convictions.
- There is a risk that this
step takes a very dangerous precedent and we have now seen two examples of
the Government passing legislation effectively to get round the decision
of the court or to overcome the court’s slowness and lack of resources to
expeditiously process a large number of appeals.
- One of the problems is
that many of the postmasters wrongly convicted are uncomfortable about
coming forward and have little trust in the court system or those
prosecuting these cases. For many
of them, they simply want to forget all about it and not re-open these
wounds.
- What does this say about
our Criminal Justice System? Is
there any way the Court of Appeal could have expedited the process of
dealing with these matters. I
would suggest that it would be
difficult but not impossible. Part
of the problem is the lack of resources in our Criminal Justice System
through lack of investment by the current Government.
- However, perhaps one Court
of Appeal judge could have been appointed to case manage all of the
appeals and expediting them in large groups for the Court of Appeal. Ideally and possibly many of the
appeals will simply have been non-uncontested in any event. The sub-postmaster would then have
his/her day in court where the court would hear about their personal
circumstances and be able to publicly announce that their appeal had been
allowed.
- The post office could have
been removed from the entire process and a special team of prosecutors
could be appointed to expedite these appeals. Firms of solicitors who have been
dealing with these matters could reach out to the sub-postmasters and try
to make the process as user friendly as possible. Many will say that this will be far
more time consuming and expensive than the current proposal and they are
right.
- However bearing in mind
what is at stake and the message it sends perhaps the government should
have taken this course. It would give those who are wrongly convicted
confidence in the appeal process. It would also demonstrate that the
government are truly invested in the rule of law, and an independent and
robust court system. I appreciate
some will say that as a solicitor who has acted for some sub postmasters
on a legal aid basis that I have a vested interest. However whilst I raise
these concerns, in this unique case I do
support the legislative alternative because it is probably best for
the postmasters but I do not think it is ideal.
- I am also concerned about
the requirement that sub-postmasters must now sign a statutory
declaration confirming that they are innocent and if it emerges that they
have lied, then they will be open to further prosecution.
- The way our Criminal
Justice System works is that those prosecuting bring the case and have to prove guilt beyond a reasonable
doubt. Private prosecutors have to
comply with certain strict guidelines in relation to integrity, honesty
and candour. If it is clear that the evidence or any part of it is tainted
then the integrity of the prosecution is flawed. Courts expect that prosecutors are being
fair and honest when bringing prosecutions. The post office can no longer assert
that they tick those boxes and
therefore I respectfully submit that any prosecution that they bring or
have brought is flawed and therefore bearing in mind the onus is on them,
the requirement for sub-postmasters to sign such a declaration is both
unnecessary and inappropriate. I am
sure many will disagree.
- However, furthermore what
if, for example, a postmaster is partly guilty of an offence of
dishonesty, the value is hugely exaggerated by the malfunctioning Horizon system.
- Will sub-postmasters have available
legal advice in relation to whether they should sign such a
declaration. Will they be expected
to fund it? Will there be public funding available?
- What lessons can be
learned from this? The rules on
private prosecutions must be reviewed.
The presumptions about the reliability of computer evidence and
other forensic evidence also needs to be reviewed.
- Are the courts accessible
enough for the individual? This
Government has underfunded the Criminal Justice System, many good committed
people have abandoned being
involved in criminal justice. If
such further miscarriages are to be prevented, a robust and properly
invested Criminal Justice System is an absolute necessity.
