The Post Office Scandal: What next?

 

 

1. 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.

 

2. 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.

 

3. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

7. 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.

 

8. 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.

 

9. 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.

 

10. 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.

 

11. 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. 

 

12. 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.

 

13. 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.   

 

14. 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.

 

15. 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.

 

16. 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?

 

17. 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.

 

18. 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.