Is the PO bill fair?

Or should parliament clear more postmasters than the courts?

Although a number of deceased postmasters will be cleared of dishonesty as soon as the Post Office (Horizon System) Offences Bill is passed by parliament, Roger Allen will not be one of them. His case raises a number of concerns that I and three legal academics may have an opportunity to discuss when we give oral evidence tomorrow afternoon to the Commons justice committee, which is considering the bill before it begins its committee stage.¹

Allen died last month at the age of 81 and his funeral will be held on Friday. As the Sunday Times reported yesterday, his daughter promised him she would never stop trying to overturn his conviction for theft. Keren Simpson’s father was sentenced to six months’ imprisonment in 2004 and ordered to pay £12,500 in compensation.

There are two reasons why Allen will not be cleared by the bill as it currently stands.

First, the legislation applies only to cases that were prosecuted by the Post Office or the Crown Prosecution Service. But Allen, who was convicted of stealing benefits payments, was prosecuted by the Department of Work and Pensions.

Secondly, the bill excludes cases that have been considered by the Court of Appeal. Allen’s appeal was considered — and dismissed — in 2021.

Both exclusions are government policy. What parliament should now consider is whether ministers have made the right choices.

Department of Work and Pensions

Explaining on 22 February why the bill would exclude cases prosecuted by the Department of Work and Pensions (DWP), the Post Office minister Kevin Hollinrake told MPs:

No convictions prosecuted by DWP have been quashed. Due to the nature of these cases, most DWP convictions relied on physical evidence and when Horizon data was used it was not relied on; this evidence was corroborative of, rather than essential to, the case.

Allen’s case was an example of this. Although there was very little surviving paperwork, we know the case against him was based on “the irregular encashments of DWP benefits and allowances order books after they had been reported as not received by their intended recipient and for which there were loss reports completed by benefit claimants”.

Three judges headed by Lord Justice Holroyde said in 2021 that there was “evidence before the court which supported the prosecution case and which did not depend on Horizon being reliable, still less essential to that case”.

But there was also some evidence that Allen had complained to the helpdesk about the Horizon computer system which all postmasters were required to use. And his daughter backs that up.

“I remember Dad coming home from work every week and he would always say that the balances didn’t match up,” Simpson told the Sunday Times. “He came from a job in insurance; he was good with numbers but he had never used computers before. He would have spent hours adding it up manually. He just didn’t understand what was going on.”

In referring Allen’s case to the Court of Appeal, the Criminal Cases Review Commission (CCRC) said this:

On the information which is before the CCRC, it appears that unexplained balancing problems when using the Horizon system were an important part of the context to Mr Allen’s guilty plea to theft. Although Mr Allen has referred to prosecution evidence regarding unsigned pension dockets, the CCRC does not consider that anything in Mr Allen’s recent correspondence contradicts his assertion that balancing problems in the branch accounts were the result of flaws in the Horizon system.

The CCRC speculated that “Horizon errors resulted in the recording of pension payments that had not in fact been made”. But there is another possibility that, despite being pure speculation on my part, may be plausible.

It is that Allen was deliberately using unclaimed pension payments to make up the shortfall recorded by Horizon. Perhaps he was using money paid by one department of government to repay an improper claim from another. If he gained no benefit for himself, could it be said he acting dishonestly?

As I say, I have no evidence for that suggestion. But evidence is the one thing that’s not needed under the legislation currently before parliament.

Court of Appeal

The second reason why Allen’s conviction is not covered is that the bill excludes cases which have been considered by the Court of Appeal. That refers, in practice, to appeals that have been dismissed; postmasters whose appeals have already been allowed will gain nothing from the legislation.

This provision has been included to avoid treading on the judges’ toes any more than necessary: if the appeal court has upheld a specific conviction, ministers think it would be undermining judicial independence for parliament to set it aside. Kemi Badenoch, the cabinet minister in charge of the bill, told MPs on 20 March that it had been drafted in consultation with the judiciary.

But giving evidence to the Lords constitution committee a few hours earlier, the justice secretary pointed out that the Court of Appeal might have taken a different approach. It could have quashed convictions in cases that did not rely entirely on Horizon evidence. Alex Chalk described these cases as the fruit of the poisoned tree, suggesting that once the Post Office investigation and prosecution system had been tainted by non-disclosure any fruit it might bear was not fit for purpose.

Comment

It looks to me as if the government may be open to argument on exonerating postmasters whose convictions were upheld by the Court of Appeal. The exclusion was not mentioned by Hollinrake in February. And it contains a very obvious paradox.

The CCRC has been working through a number of Horizon-related cases. Whenever it thought there was a “real possibility” that a postmaster’s conviction would be quashed, it would refer the case to the Court of Appeal. If it thought there was no real possibility of a successful appeal, it would not.

If an appeal has been referred by the CCRC and then dismissed by the Court of Appeal — as happened in Allen’s case — the postmaster will not be cleared under the current legislation. If, however, the case was so thin that the CCRC thought there was no real possibility of a successful appeal, that postmaster will be cleared and can claim compensation. The weaker the case, the more likely the postmaster is to be cleared.

Holinrake admitted in February that

the legislation is likely to exonerate a number of people who were, in fact, guilty of a crime. The government accepts that this is a price worth paying in order to ensure that many innocent people are exonerated.

The government will seek to mitigate the risk that such people will receive financial redress when they have not been wronged. That mitigation will require, as a condition of access to financial redress, that the individual signs a statement to the effect that they did not commit the crime for which they were originally convicted.

“Financial redress” of £600,000 is on offer for each cleared postmaster. The more extensive the scheme, the more it will cost. But since the government accepts that some dishonest people will inevitably have their convictions set aside and some of those will dishonestly claim compensation, why not widen the scheme to include postmasters who were prosecuted by the DWP and those whose appeals have previously been dismissed? Wouldn’t that be fair?

1. I shall be taking part remotely.