Can dead postmasters be cleared?
Criminal Cases Review Commission asks courts to break new ground
Two former Post Office branch managers who died a decade or more after they had been convicted of fraud-related offences may be cleared on appeal if the courts can be persuaded to break new legal ground. The Criminal Cases Review Commission has been reviewing the cases of subpostmasters whose convictions were based on evidence from the discredited Horizon accounting system and has now referred two further cases to the Crown Court.
What’s special about these cases is that the defendants pleaded guilty in the magistrates’ court. Some subpostmasters chose to admit crimes they had never committed.
Peter Huxham pleaded guilty to fraud by misrepresentation in March 2010 at Torquay magistrates’ court and was sentenced to eight months’ imprisonment. He died in 2020 and his son applied to have his case reviewed by the commission in October 2021.
Roderick Dundee pleaded guilty to false accounting at Cambridge magistrates’ court in August 2005 and was given a community punishment order. He applied to the commission in November 2020 but died in May 2021. Since then, his application has been continued by his daughter.
Appeals from the magistrates’ courts are normally heard by the Crown Court. But the Crown Court cannot consider an appeal by a defendant who pleaded guilty unless the case has first been referred by the commission.1
That has now happened in these two cases. But the review commission was concerned because there is no statutory provision that permits appeals of this kind.
Helen Pitcher OBE, the commission’s chairman, said:
There is no current legislation which expressly allows posthumous appeals from a magistrates’ court to the Crown Court. By contrast, there is legislation providing for posthumous appeals from the Crown Court to the Court of Appeal.
Given that we have seen successful posthumous appeals from the Crown Court to the Court of Appeal in Post Office cases, the disparity is difficult to justify…
We feel it is important for this issue to be considered by the Crown Court and for the families of the deceased men to have an opportunity to appeal against the convictions of their loved ones.
So far, the commission has referred 70 Post Office-related convictions or sentences to the appellate courts. That makes this the most widespread miscarriage of justice the commission has ever reviewed. But there are still thought to be many more potentially unjust convictions that have yet to be challenged.
The law
The commission declined to be drawn on the legal arguments it will deploy. But we know that its case is based on the wording of the Criminal Appeal Act 1995, which created the Criminal Cases Review Commission.
Section 11 of the act begins:
(1) Where a person has been convicted of an offence by a magistrates’ court in England and Wales, the Commission—
(a) may at any time refer the conviction to the Crown Court…
(2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 108(1) of the Magistrates’ Courts Act 1980 against the conviction (whether or not he pleaded guilty).
Taken literally, the phrase “at any time” must include a time after the person’s death. But is that what parliament intended?
Section 7 of the act deals with cases that are tried in the Crown Court. It says that “where a person has died… and where any [appeal against a conviction in the Crown Court] was begun… by a reference by the Criminal Cases Review Commission, any further step which might have been taken by him in connection with the appeal if he were alive may be taken by a person [approved by the Court of Appeal]”.
On the one hand, that section shows parliament was willing to allow posthumous appeals to be initiated by the commission.
On the other hand, section 7 creates an elaborate procedure for approving the person who can take over a posthumous appeal to the Court of Appeal. No such procedure is created by section 11 for appeals to the Crown Court.
Can the courts fill in the gaps? We shall see.
Update 30 November: a shorter version of this piece has been published by The Times.
See comment below by Robert Zara, who points out that this is an oversimplification.
If the Court of Appeal consider that they cannot interpret 'at any time' in section 11 to allow a posthumous appeal to the Crown Court on a CCRC reference (in view of the express procedural provision in section 7 for such appeals to the Court of Appeal, whereas there is none in respect of appeals to the Crown Court), the Government should commit to amending the law by adding the necessary clause to the Criminal Justice Bill (currently before Parliament) and Sir Wyn Willliams (as chairman of the Horizon Inquiry) should issue an urgent statement supporting such an amendment.
If I may say so, Robert Zara was for many years a much respected and admired (solicitor) District Judge based primarily in Birmingham, Solihull and other West Midlands Magistrates’ Courts. Brisk though unfailingly courteous, he was penetrating in his challenges to those who TRIED to make the system work ,of course for the client but also in the interests of the rule of law and due process. He made us WORK - and all the better for us AND the course of justice.
As to the issue at hand, I am once again indebted to Joshua who has reminded me with his habitual clarity of what the 1995 Act does and DOES NOT say.
Might this indeed be an opportunity for the Courts to interpret and clarify its relevant provisions imaginatively? I wonder, without references, quite what the preamble and Parliamentary debates might add to a clarification of the intention of Parliament? Robert would quite likely be vexed with me for having failed to research those aspects myself- but there you are.