Compensating Post Office victims

Can’t they even get that right?

Two years ago today, the Court of Appeal delivered a devastating judgment. I described it as the biggest miscarriage of justice in England and Wales to be put right in a single ruling.

Three judges overturned the convictions of 39 former sub-postmasters,

¹

years after they had been wrongly prosecuted by the Post Office.

²

They had been convicted between 2003 and 2013 of crimes including theft, fraud and false accounting. Some were imprisoned.

After their cases had been referred to the Court of Appeal by the Criminal Cases Review Commission, the 39 appellants were cleared because their convictions depended entirely on computer-generated data that is now known to have been unreliable.

Photo by Mick Haupt on Unsplash

Lord Justice Holroyde, Mr Justice Picken and Mrs Justice Farbey had been told at an earlier hearing that evidence of serious defects in the Post Office’s Horizon accounting system was “concealed from the courts, prosecutors and defence”, in order to protect the Post Office “at all costs”.

Some of the subpostmasters have since died, their lawyers said, “having gone to their graves” with convictions against their name, while “some took their own lives”.

Giving judgment, the court said that Post Office Limited, as a corporate prosecutor, had been under a duty to investigate the claims of sub-postmasters that there were problems with Horizon. The Post Office needed to consider and make appropriate disclosure of these problems:

In those circumstances, the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court.

Private prosecutions

In my Substack post two years ago, I argued two years ago that the case raised concerns about the system of private prosecutions in England and Wales. The Post Office had stopped bringing its own prosecutions by the time of the judgment. And private prosecutors have joined forces to promote best practice. But the Private Prosecutors’ Association does not have any regulatory function or carry out any quality assurance. What’s to stop another company prosecuting its staff in the way the Post Office did?

Compensation

A great deal has happened over the past two years — but not enough. By the end of last year, the number of people whose convictions had been quashed because they had been convicted as the result of Horizon-related data had risen to 83. But the total figure may be as high as 700.

The best-informed journalist on the story is the indefatigable Nick Wallis, who maintains an important website chronicling the scandal.

A public inquiry, established in non-statutory form in September 2020, was converted to a statutory inquiry in June 2021. The chair is Sir Wyn Williams, a former High Court judge.

This week, Williams will be holding a public hearing at which Post Office Limited — a state-owned company — will be asked about progress in compensating those who have suffered miscarriages of justice.

Compensation is complicated by the fact that some former sub-postmasters were forced into bankruptcy. Concerns had also been raised those entitled to compensation might be unfairly taxed under an “emergency” tax code.

There are currently three overlapping compensation schemes:

• The historical shortfall scheme operated by Post Office Limited

• The overturned historical convictions scheme also operated by Post Office Limited.

• A group litigation scheme being developed by the government.

In written submissions ahead of this week’s hearing, Post Office Limited says it has made offers with a total value of approximately £97.5 million including interest and the deduction of withheld tax. It is no longer asking those who applied late to the historical shortfall scheme why they did not meet the deadline.

Hudgell Solicitors represent 125 claimants under the historical shortfall scheme, 71 sub-postmasters whose convictions have been overturned and four individuals involved in the group litigation scheme. They blame the Post Office and the government for “unacceptable delays”.

A submission from Edward Henry KC and Flora Page on behalf of core participants in the inquiry who are represented by the law firm Hodge Jones & Allen is uncompromising in its criticism:

Our overall argument is that the present situation is untenable. There is no prospect of the sub-postmasters receiving fair compensation if the three different compensation programmes are permitted to run their course along different lines. There is a complete absence of transparent, consistent principle, which is already leading to an array of outcomes, some of which seem highly questionable.

If the government does not step in to give all sub-postmasters the option of applying to an independently administered scheme, the Post Office scandal will run for many more years to come, and further litigation is all too possible. The reputation of government, corporate governance and both civil and criminal justice will be dragged further into the mire by this discordant triplet of inconsistent schemes.

To the charge “they couldn’t even get compensation right” there is no real defence, a situation that must not be allowed to continue.

Writing in January, though, Williams was unpersuaded:

I have no doubt that if there were no compensation schemes yet in existence and that I was making a recommendation about a process for compensating wronged sub-postmasters with a blank piece of paper there would be considerable merit in there being one scheme with a completely independent advisory board and independent assessors determining levels of compensation. However, that is not what exists.

There are three schemes in various stages of their development which are functioning in substantially different ways. In my view it would not now be possible to appoint a person or board to supervise all the schemes without there being a significant risk of substantial delay as a result.

In relation to all schemes that would be very undesirable. In relation to the group litigation scheme, however, such delay could be disastrous.

But Williams also said he was “not persuaded as yet that the complex applications within the historical shortfall scheme are being processed with sufficient vigour”.

The hearing on Thursday should be particularly interesting and will be live-streamed on YouTube.

1. Or sub-postmistresses. I have referred to them as “staff” although the Post Office regarded them as self-employed.

2. Strictly speaking, Post Office Limited.