“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 on 10 January.
Five weeks on, we have heard nothing more. No bill has been published — there has been no draft, no consultation paper. Instead, a report by the Guardian’s political staff last Saturday suggested that the government proposal might have run into difficulty with the judiciary.
It said:
Ministers have held talks about an alternative to Rishi Sunak’s plan to exonerate those wrongfully convicted in the Post Office Horizon scandal.
No 10 insisted it was pressing ahead with the bill announced last month, which would immediately quash the convictions of hundreds of post office operators.
But this week the justice secretary, Alex Chalk, and business minister, Kevin Hollinrake, held discussions about an alternative put forward by the judiciary, under which the courts would overturn wrongful convictions, a process likely to take much longer.
As I explained last month, I was never very comfortable with the idea of legislation that would inevitably clear the guilty as well as the innocent. I thought that Hollinrake sounded uncomfortable too when he admitted that the move “creates the risks of a different sort of injustice”.
But I had thought the courts would faithfully respect whatever legislation parliament might pass. Apparently not.
The first sign that the judges had other ideas came when the lady chief justice of England and Wales gave evidence to the Commons justice committee on 16 January.
It was simply “not factually correct”, said Baroness Carr of Walton-on-the-Hill, to suggest that the courts would have been unable to cope with a large number of appeals arising from the Post Office IT scandal, or that they would not be able to deal with large volumes in the future.
She confirmed that the justice secretary had asked to speak to her urgently before his department announced legislation designed to clear hundreds of wrongly convicted postmasters. Carr had had “two short conversations” with Chalk, remotely, on 5 January.
But “any suggestion that the judiciary has given any proposed legislation the green light is simply not true”, she added. In any case, it was not for the judiciary to comment on the wisdom of proposed legislation.
I followed this up with a question to Carr, asked by a colleague on my behalf, at her news conference on 6 February. What was her view of convicted people being cleared by statute rather than by an appeal court?
This was her reply:
We don’t know what the government is actually proposing and we wait to see what is advanced. I hope you’ve seen enough of me already to know that if I have to speak out, I will.
The rule of law is clearly engaged and it is for the courts to make judicial decisions. These are court-ordered convictions and if there comes a point in time when the rule of law has to be confronted in this context then I will confront it.
What sort of confrontation did Carr have in mind? She stuck to her earlier formulation:
It was just confronting the rule of law. I certainly don’t want to confront anyone in particular. But what I will do is defend the rule of law. I see that as being my job.
The rule of law
The rule of law is not an easy concept to define. In his book of that name, Lord Bingham suggested it meant that
all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.
Clearly, the legislation proposed by the government last month would by “publicly made”. And any disputes would presumably be “administered in the courts”. Why, then, is Carr concerned?
Let’s go back to the points she made in her first answer, slightly reordered:
These are court-ordered convictions
The rule of law is clearly engaged
It is for the courts to make judicial decisions
I take this to mean that she believes that convictions imposed by a court should be set aside only by a court. That, she seems to be saying, is what the rule of law requires. And if she needs to defend that principle, she will.
The Guardian reported on 10 February:
Some senior lawyers have expressed concerns that quashing convictions by statute sets a dangerous precedent by allowing parliament and politicians to overturn the decisions of courts. Critics also say it lumps together innocent and guilty…
The alternative plan would bundle together wrongful convictions and overturn them through the court system, according to four people briefed on the details. They all said the new plan would require some more limited legislation.
The fact that the judiciary has proposed an alternative demonstrates the concern among its members.
That strikes me as plausible — nobody has suggested otherwise this week — but it’s not something that anyone is going to confirm on the record. Not at the moment, anyway.
Legislation
Playing down the story, Downing Street told the Guardian that the government was committed to legislation. But what might it say?
Let’s start with the “blanket exoneration” announced on 10 January. Any legislation would have to define the convictions that were being overturned. I don’t see how parliament could simply specify that all convictions based wholly or mainly on Horizon evidence were being quashed; that would surely lead to confusion over which cases were included.
So the legislation would have to identify the individuals to which it applied. Their names and details of their convictions would presumably be included in a statutory instrument signed by a minister. The legislation would say that everyone on list was deemed to have been acquitted of the specified charges.
The judiciary’s plan — if there is one — would presumably involve a minister sending a list of convicted individuals to the Court of Appeal. Instead of having their convictions quashed by a government minister, they would be cleared by the judges in some sort of fast-track process. Legislation might be needed to support the arrangements.
Would the courts investigate each case on the list? Presumably not. Their job would effectively be to rubber-stamp the names provided. But a scheme such as this would preserve the principle that convicting offenders and setting aside wrongful convictions are a matter for the courts, not parliament. And that’s an important thing to do.
Update 21 February: In the Commons yesterday, the justice secretary Alex Chalk said:
In its December 2023 letter, the independent Horizon compensation advisory board expressed concern that the pace of exonerations was too slow, not least because evidence had been lost and many were simply too traumatised to come forward. That is why the prime minister has decided to bring forward legislation to quash the relevant convictions, and the Department for Business and Trade will be announcing details shortly. These wholly exceptional circumstances have led to this wholly exceptional course.
In other news, The Times carries an important report this morning:
Tan Ikram CBE has been the deputy senior district judge at Westminster Magistrates’ Court since 2017.
The Campaign Against Antisemitism discovered that he had “liked” a post on LinkedIn by a barrister who had previously promoted conspiracy theories claiming that Israel allowed the October 7 attack:
In a statement issued by the Judicial Office press office, Ikram said: “I didn’t know that I’d liked that post. If I did then it was a genuine mistake.”
Earlier this week, Ikram convicted three women of displaying an article to arouse reasonable suspicion that they were supporters of a banned organisation, an offence under the Terrorism Act 2000. They had attached images of paragliders to their backs at a demonstration seven days after Hamas terrorists had used these devices to enter Israel and murder hundreds of people.
Ikram found no evidence that the defendants were seeking to show support for the banned group. He said he had “decided not to punish” the defendants and gave each a 12-month conditional discharge.
The Judicial Conduct Investigations Office deals with complaints about the personal conduct of judges.
It can investigate “misusing social media, for example posting offensive content, or content which could damage public confidence in judicial impartiality such as remarks about government policy”.
It can recommend a range of sanctions but it cannot overturn a judicial decision. A sentence that was passed in the magistrates’ court cannot be referred to the Court of Appeal under the unduly lenient sentence scheme.
There’s a woeful lack of appreciation of the importance of the *Ground 2* findings of both the CCRC (recommending appeals on ground 2) and the Court of Appeal (criminal division) in all successful appeals & it demonstrates a complete failure of reasoning by the CoACD. It wasn’t *just* that the POL withheld evidence of the unreliability of the software but that POL’s approached all their duties as investigators & prosecutors with complete disregard (it’s since been confirmed that staff bonuses were linked to successfully pursuing *alleged* debts). The two barristers (Paul Marshall & Flora Page)who doggedly pursued *ground 2* were forced to withdraw from the case after threats of contempt of court action (that failed to materialise, actually worse, even failed to be acknowledged as ever having been initiated) before ground 2 was argued in CoACD but it did get argued for just a few (less than you can count on one hand) of their former clients & were *found* for all successful appeals by the CoACD. All POL’s prosecutions *must have been* unreliable unless & until they can demonstrate to the satisfaction of the CoA(CD) that they were not - CoACD have overturned convictions in every case *that POL hasn’t contested*! On what grounds can the CoACD find that POL contestation of an appeal can be relied on? The answer is certainly not on anything POL states - even now. The only reasonable thing to do now (Carr needs to pay attention here) is for Parliament to legislate to overturn all POL convictions & for the DPP to take over the prosecutorial role of POL… including in handling of appeals. This deals with the constitutional problem of Parliament usurping the role of the courts whilst accepting the scale of the failings of our criminal justice system that allowed the scandal to go on for nearly 20 yrs unchecked. Fans of the Rule of law will see this retains the courts role but shortcuts making amends for its catastrophic failures here - it also suggests that the upper ranks of the judiciary need to have far more criminal practitioners - Carr’s embarrassing herself 🤷🤞😔
I have things to say on the Post Office story here but before that I want to point out, in response to the bizarre *non-punishment* of the women protestors section that *conditional discharges* are punishment. It’s not rocket science it really simple (criminal) law… just to get this clear🤷🙄