“Hundreds of innocent postmasters who were wrongfully convicted due to the Horizon scandal will have their names cleared under new laws to be brought forward by the government,” the Ministry of Justice announced this afternoon.
But what about the guilty ones?
“It is better that 10 guilty persons escape than that one innocent suffer,” Blackstone famously wrote. But should those “10 guilty persons” each receive £600,000 in compensation?
Kevin Hollinrake, junior minister at the Department for Business and Trade, was given the job of telling MPs about this unprecedented departure from the normal criminal justice process.
New legislation would “overturn the convictions of all those convicted in England or Wales on the basis of Post Office evidence given during the Horizon scandal”, he said. All that would be asked of those seeking compensation is that they “sign a statement to the effect that they did not commit the crimes of which they are accused”.
Anyone subsequently found to have signed such a statement untruthfully will be at risk of prosecution for fraud, Hollinrake added. But how much of a deterrent will that be to people with convictions for dishonesty?
The minister was clearly uncomfortable, admitting that the move “creates the risks of a different sort of injustice”.
As he explained:
I am sure that a great many people were wrongly convicted in the scandal, but I cannot tell the House that all of those prosecuted were innocent or even that it was 90%, or 80%, or 70%. Without retrying every case, we cannot know.
The risk is that instead of unjust convictions, we end up with unjust acquittals, and we just would not know how many. The only way we could tell would be to put all cases through the courts, further dragging out the distress for many innocent people…
We have been faced with a dilemma: either accept the present problem of many people carrying the unjustified slur of conviction, or accept that an unknown number of people who have genuinely stolen from their post office will be exonerated and perhaps even compensated.
And there is no doubt that some people were properly convicted. The Criminal Cases Review Commission (CCRC) told the Horizon Compensation Advisory Board last September that it had rejected a third of the applications it had received:
You ask how many Post Office cases the CCRC has decided not to refer to the appeal courts to date. As of today’s date, there have been 33 such cases, out of a total of 101 completed CCRC Post Office reviews.
Decisions not to refer have been reached for a variety of reasons, but a consistent feature is that there was cogent prosecution evidence in the case — extraneous to Horizon — that money was stolen by the sub-postmaster in question (for example: evidence of Post Office money having been transferred to the sub-postmaster’s personal bank account; or evidence from an eye witness who saw the sub-postmaster taking money).
A number of the cases which have been turned down have also featured detailed and compelling confessions by the sub-postmaster, wherein they explained to investigators how they took the Post Office money and how they then used it.
Some appeals were dismissed by the courts. I referred on Monday to the three convictions that were upheld by the Court of Appeal in 2021. And there have been others.
In 2005, David Cameron was manager of the England’s Lane Post Office in Hampstead, North London. Six female customers, some elderly, had complained about unauthorised cash withdrawals from the Post Office card accounts. These were recorded on the Horizon system.
Cameron was convicted in 2007 of 10 counts of theft, for which he received a suspended prison sentence. There was no appeal at the time but he was allowed to take his case to the Court of Appeal in 2022.
He had said at his trial that he thought the problems might have been caused by Horizon, the appeal judges said:
This, however, seems somewhat unlikely in circumstances where nowhere during the course of his interview with Post Office investigators did Mr Cameron seek to suggest that the explanation for the further withdrawals was, or even might be, the Horizon system.
On the contrary… having been asked “What’s the office balancing like? What’s the office balance record like?”, Mr Cameron’s response to the investigators was to say that “It's usually quite good” which he explained meant that it was “normally within £20”. In other words, Mr Cameron was there acknowledging that Horizon was not believed by him at the time to be the cause of the withdrawals showing on the relevant records.
“We are driven to the conclusion,” the appeal judges concluded, “that Mr Cameron is now seeking to raise an issue concerning the reliability of Horizon which was simply not an issue, or believed by him to be an issue, at the time that he stood trial”. Because this did not qualify as a Horizon case, leave to appeal was refused and his convictions were not overturned.
Comment
As Hollinrake frankly admitted, the government faced a dilemma:
We are well aware of the imperfections of the solution. I am sure that that will attract some critics, but when they criticise I invite them to say what they would do otherwise. Would they leave many people suffering under the burden of unjust convictions for many years — perhaps forever — with no access to compensation, or would they create some administrative process for deciding innocence, which would be more onerous for the victims?
Sir Bob Neill, chair of the Commons justice committee, limited his criticism to questions of process. “Legislating to overturn convictions that were imposed by our independent courts is constitutionally quite exceptional,” he observed. “What discussions were there with the senior judiciary about its practicality?”
Hollinrake said the government’s proposals had not been resisted by the judiciary. I’m not surprised. The judges’ job is to apply the law laid down by parliament. If parliament passes legislation bypassing the normal appeal process, the courts will respect that.
A spokesperson for the judiciary had said as much before the government announced its plans:
Any miscarriage of justice is a matter of great concern. The criminal courts have dealt expeditiously with all Post Office appeals and will continue to do so with any further cases which are brought before them.
Any legislation in relation to such cases is a matter for Parliament and not for the judiciary.
What the judges would not do, I’m sure, is to abandon the principles under which they decide whether a Horizon-related conviction is safe. Those were set out in the Hamilton judgment, delivered in 2021.
It’s heartening to see the government keeping the judiciary informed of its plans. But I think ministers were worrying unnecessarily about interfering with judicial independence.
That’s not to say this is the right way to proceed. I argued this week that it should be up to those involved — the sub-postmasters and their families — to decide whether to appeal. The courts would then continue to exonerate those who might be innocent while upholding the convictions of those who are clearly guilty.
But we are in an election year and the ITV drama Mr Bates vs The Post Office has had an extraordinary impact. I hope this announcement will mean justice for the hundreds of innocent postmasters who have suffered for so long.
Kevin Hollinrake said: 'I cannot tell the House that all of those prosecuted were innocent or even that it was 90%, or 80%, or 70%. Without retrying every case, we cannot know.'
He's wrong, however, as we can make an intelligent guess.
According to a Post Office FOI statement obtained by Nick Wallis in 2020 and passed on to me by Alan Bates, the number of subpostmasters convicted in 1991 to 1998 averaged 6 per year. After Horizon, from 2000 to 2013, that number rose to 51 per year.
Assuming there was no sudden frenzy of criminality among the country's subpostmasters, we might reasonably assume, from those figures, that roughly 88% of those convicted were innocent.
Whilst I fully sympathise with the lives of SPMs that have been destroyed by the PO and faulty 'Horizon' software, I feel a parliamentary automatic quashing of all convictions sets a worrying precedent. What if we have a very right-wing, populist government? Is there no way of quickly distinguishing between previous convictions that involved Horizon - and those that did not? We also need to find a quick way of providing adequate compensation (in the hundreds of thousands for the heroic SPMs that won judgements in their favour but - after legal costs were deducted - ended up with a paltry £20000 odd compensation. And what exactly is the role of the Ministry of Justice? Do they have one? They do nothing that I can see about the PO scandal, the Windrush scandal, the contaminated blood scandal, the Grenfell Tower scandal . Why are they called the Ministry of Justice when all these scandals take place on their watch and they do and say NOTHING. Should they be prosecuted?