Postmasters whose appeals have been rejected by the courts will not be cleared by the government’s Post Office (Horizon System) Offences Bill, published by the government yesterday.
Others will be cleared automatically on the day the bill is passed, expected to be in July. These people will then be treated as if their convictions had been quashed on appeal. But they will have to apply if they want their criminal records to be deleted.
Acquittal criteria
As expected, the bill defines the requirements that must be satisfied for a conviction to be quashed.
Here’s my summary:
Prosecuted by the Post Office or the Crown Prosecution Service in England or Wales
Not considered by the Court of Appeal
Offence allegedly committed in whole or in part between 23 September 1996 and 31 December 2018
Convicted of false accounting, fraud, handling stolen goods, money laundering, theft or related ancillary offences
Convicted person was working on or for a post office business
Convicted person was alleged to have committed the offence in connection with post office business
Horizon system was being used
Not considered by the Court of Appeal
The concept of “not considered by the Court of Appeal” can best be understood with an example.
In 2021, the court dealt with 42 appeals by postmasters in a single judgment. In all, 39 appeals were allowed. Since those postmasters were cleared on that day, they are not affected by the legislation.
However, three appeals were dismissed. Those postmasters will not be cleared — although there is nothing in the legislation to stop them trying to appeal again.
Postmasters who have been refused permission to appeal will be treated in the same way as those whose appeals were dismissed. So they won’t be cleared by the legislation either.
I’m told ministers considered adding postmasters whose applications to the Criminal Cases Review Commission were turned down. But their cases would not have got as far as the Court of Appeal and so they will be cleared if they meet the other criteria in the legislation.
Notification of quashed convictions
The bill attempts to deal with concerns I raised about identifying the convictions that will be quashed when the act comes into force.
A secretary of state — presumably the business and trade secretary, currently Kemi Badenoch — “must take all reasonable steps to identify the convictions quashed” by the legislation.
That may not be as easy as it sounds, given that Post Office records are said to be incomplete. But the secretary of state must consider representations by, or on behalf of, a person covered by the legislation. So postmasters and their families can write to the ministry.
Once a quashed conviction has been identified, the secretary of state must notify the court at which the defendant had originally been convicted. That court must update its records to replace the conviction with an acquittal.
This is similar to what happens when a conviction is quashed by the Court of Appeal. It enables other records to be updated, such as those held on the Police National Computer.
Similar provisions apply to cautions.
Legal background
Explanatory notes published by the government say:
This is an unprecedented and wholly exceptional legal solution to a miscarriage of justice of unparalleled scale and impact.
The approach to quashing convictions in the bill does not set any constitutional precedent.
The criteria set out in the bill for defining the category of convictions within its scope are intended to be unambiguous and capable of being applied without any element of judgment or discretion on the part of those whose job it is to notify those within scope that their convictions have been quashed. This is to ensure that the executive — [ministers and officials] — is not empowered to interfere with judicial decisions.
The period between 1996 and 2018 includes the Horizon pilot but not the current version of Horizon, which was found to be “relatively robust”.
History corner
History buffs tell me this is not quite unprecedented.
The Indemnity and Oblivion Act 1660 gave a general pardon — what we would now describe as an acquittal — to everyone who had committed crimes during the English Civil War and subsequent Commonwealth period. There were, however, some exceptions.
As it happens, 1660 was the year in which the Post Office was founded by Charles II.
Very interesting comments. It's the non-disclosure issue that really gets me. How could any competent, professional prosecutor have let that happen? And the failure of the obligations on so called expert witnesses including the lawyers reviewing such evidence. All quite unbelievable.
Very well said, Alisdair: whilst the government may claim to be straining a ligament to “do justice”, the whole point to that elusive and treasured concept requires no arbitrary or broad brush element. Easy for me to say, of course, compared with the sub postmasters whose lives have been blighted but how VERY much better would have been the (still streamlined) due process route identified so lucidly by the Lady Chief Justice. And, indeed, what of Magistrates’ Court convictions. An excellent reminder also of the fact impossible to brush off that unsuccessful applications for leave or appeals proper would have been grounded in as yet unchallenged and, given shocking non disclosure, unchallengeable evidence of the supposed near infallibility of Horizon. Also I resile not one jot from my concern over “another bus(es) along in a minute.” An unprecedented, unwise and “over cosy” contracting out to mega-businesses? “Unique”? Really? I take leave to doubt it. And what of the vetting issue Alisdair mentions, together with the permanent shadow lingering over the good character of many of the subpostmaster casualties? Financial compensation? Well, that’s alright then!