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🤷🙄
I take the point that an appeal is not a technically a retrial, but I have read the conclusions of the Court of Appeal in the case of the 42 sub-postmasters in 2021. Quite rightly, they have a detailed consideration of each case: 39 appeals were upheld, and 3 were not, for good reason. What Alisdair is an administrative method of rapidly processing several hundred appeals - an excellent idea, and perhaps Baroness Carr could be persuaded to adopt it. Based on her statements I have seen so far, she seems rather to be focused on drawing a line between the judiciary and parliament, a kind of constitutional turf war that we could do without.
I do not blame the judiciary: I have watched enough episodes of Engrenages to understand the difference between inquisitorial and adversarial. I merely note that presiding over a gross miscarriage of justice, week after week for sixteen years is not the strongest foundation upon which to claim the rights of the judiciary to solve the problem.
Re the absence so far of a ‘Post Office Horizon Scandal (Quashing of Convictions) Bill’ (even deciding on a short title indicates the constitutional minefield into which the Government proposed to enter by Rishi Sunak’s announcement at the beginning of PMQs on 10 January) like you, I was immediately uncomfortable with the idea of clearing those who were actually guilty of theft or fraud along with those wrongly convicted. Further, how would clearing by legislation those subpostmasters rightly convicted, but whose cases had not yet been heard by the Court of Appeal, look to those subpostmasters whose appeals against conviction had already been dismissed on the basis that the faulty Horizon IT system was not essential to the cases brought against them? (E.g. in the leading case reported as R v Hamilton [2021] EWCA Crim 577, the appeals of Wendy Cousins, Stanley Fell and Neelam Hussain.) The Government announcement smacked of being a knee-jerk reaction to the public outcry following the screening of the ITV drama to court support for the Government at the beginning of a general election year. Mature reflection has shown the difficulties in going down the legislation route. (One might draw a parallel with the announcement by the Blair government of its ‘back of an envelope’ plan to abolish the role of Lord Chancellor.)
You’ve referred to Lady Carr’s concerns in her answer to a question at a press conference on 6 February. One development earlier this week which you’ve not mentioned is, I’d suggest, particularly relevant. On Tuesday, as reported (inter alia) by The Independent, the Court of Appeal quashed the conviction of Jacqueline Falcon. The constitution of the court in R v Falcon was the same as in R v Hamilton save that the LCJ replaced Picken J. While Holroyde LJ gave the court’s reasons for quashing Mrs Falcon’s conviction, the report continues: “Baroness Carr said Ms Falcon’s case was the 71st Horizon-related conviction quashed by the Court of Appeal, adding that her appeal was dealt with at a 30-minute hearing just over three weeks after the CPS indicated it would not oppose the challenge. “The court has been and remains committed to the efficient and swift dispatch of Horizon appeals,” the most senior judge in England and Wales said. She added that recent cases coming before judges were being dealt with “under the fast-track approach”.
So, if Horizon cases are referred to the CACD, they can be dealt with speedily – and more quickly than legislation that’s not even yet been published in draft. (I’m hoping a transcript of R v Falcon will shortly be published on BAILII). The main problem may be in identifying all the Horizon cases and getting some defendants, who have chosen to ‘move on’ with their lives, to engage in the process.
I once heard that the route of appeal went crown court - COA and to the Supreme court. If the supreme court got it wrong then it was parliaments job to tell them so.
Given that a large body of law is 'judge made' what exactly in a democracy is the mechanism to tell the judiciary they got it wrong?
Separation of powers can lead to separate competencies and IMHO courts generally don't like being told to back off because they don't understand or its non of their business.
My understanding is that the courts are condemned in this. Post office may take most of the blame but the case of Lee Castleton demonstrates the failure of the legal system and its apparent unwillingness to address systemic failures.
“ 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”
In the matter of the Post Office convictions, the judiciary which Baroness Carr so strongly defends presided for many years over trials, the majority of which, it now appears, were flawed by inadequate disclosure, false evidence about the reliability of the Horizon computer system, and probably in some cases perjury. Baroness Carr seems to think that the judiciary had no role in that tragic farce, simply trying the evidence put before them. Perhaps so, but not a good argument for her proposed remedy, that the judiciary now retry every individual case. It is the case that when the Court of Appeal upheld the appeals of 39 sub-postmasters, the court rejected the appeals of 3, for good reasons. The Carr solution of several hundred individual appeals, considering the time already elapsed, would take an unconscionable further time. Those concerned about the possibility of legislation acquitting the guilty should explain how they balance that concern against the years of suffering already endured by the innocent.
As a general point, one might feel the assertive approach of Baroness Carr on this issue raises some concern as to her view of her role.
A brilliant piece as ever from Joshua- but then also bravissimo- if I may humbly say so- to Alisdair.
Quite apart from the so articulate points he makes about the much to be preferred judicial and rule of law route, there would surely always linger the suspicion that some at least of those so unconventionally “cleared” had in fact been bandwagoning or merely, passively benefited from this (professedly) temporary circumventing of due process in a (supposedly) unique case. Now, who is bold/reckless enough to assert that circumstances such as the Post Office scandal could never arise again? Never is in this context a reckless rather than merely bold word to use, especially since with (so often unwise ) outsourcing under blandishments from mega- corporations in sales “beauty parades” having told departmental officials WHAT THEY WANTED TO HEAR about their systems being “safe as houses” and immensely cost - saving? We many seasoned- in my case wizened- former and current criminal justice defence practitioners have had LONG experience of suchlike as the contracting out of prison and court escort services, the unnecessary contracting out of duty solicitor allocations ( previously and FOR FREE much better managed by we of the profession), the disastrous contracting out of interpreting services and the abandonment of a functioning National Agreement- I could go on, AND on. These are just the ones that leap to the forefront of my mind since representing my profession I had to wrestle with and resist these ill judged forays.
And so in terms of further Post Office resembling revelations who is to say when there might be “another bus” (or several) “along in a minute? A non judicial statutory detour once established with the Post Office, how very handy it would be for whichever complexion of government might then be in power to point to that precedent in seeking a further” separation of the powers-lite” venture, of course “in exceptional circumstances”! Now then, how “exceptional “ does “exceptional” then have to be-or not? The judicial route it must be as streamlined, over which I am comfortable about entrusting that to the wise and principled “management” of the LCJ. My apologies also for a long post, where in mitigation I hope my conviction and passion for what we (almost all) believe in ring out.
I noted that the LCJ pointed out that they were fasttracking cases to the CACD when it involved uncontested postal workers. That, it seems to me, the correct approach. I think the rule of law is engaged, not least through judicial independence. Ministers, acting as the Crown, unquestionably have the right to pardon people. However, that does not mean that their convictions were wrong. It is saying that in the interests of mercy, their sentence should be commuted or their conviction expunged. The lack of link to innocence is one reason why the post office groups understandably do not want a pardon. However, it is a very different proposition for ministers or Parliament to declare that convictions are wrong. That concerns the application of the law and is wholly within the competence of the judiciary. It is the same argument being made against the Rwanda Bill. That by overruling the facts of the case and not changing the law, Parliament is usurping the role of the courts. Again, Parliament unquestionably has the power to statutorily overrule the courts on a matter of law, and law students are aware of a few obvious examples of them doing so, but overruling them on facts is a breach of the separation of powers. Similarly, deciding that the courts were wrong to convict is not appropriate. The courts decide when they have got it wrong. It is also a neat deflection exercise, "oh, the courts got it wrong" and not, "a (then) state-owned company deliberately lied and withheld evidence that led to convictions". And I worry that once Parliament gets a taste for overruling convictions it will continue to exercise that power. We do not want to import the US approach of pardoning people that are friends of the politicians.
On your second point, I do not understand why a serving judge would have social media. Even if he is right and he did not want to like the article, which stretches credibility but fat fingers have led to this in the past, that shows the very reason for not using social media. The consequences of a mistake are made permanent (thanks to the fact that several sites archive the internet almost hourly) and can only bring the judiciary into disrepute. Social media should be via the judicial communications office not individual judges.
A final point (long post again, sorry!). Did you see the Pontins story? Apparently, they have been found to have continued to keep a 'black list' of Irish surnames and would cancel bookings from people with those names. Sadly for her, the Lady Chief Justice would not be able to book a week in Pontins. I am sure she is devastated to know that she can't go there...
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🤷🙄
I take the point that an appeal is not a technically a retrial, but I have read the conclusions of the Court of Appeal in the case of the 42 sub-postmasters in 2021. Quite rightly, they have a detailed consideration of each case: 39 appeals were upheld, and 3 were not, for good reason. What Alisdair is an administrative method of rapidly processing several hundred appeals - an excellent idea, and perhaps Baroness Carr could be persuaded to adopt it. Based on her statements I have seen so far, she seems rather to be focused on drawing a line between the judiciary and parliament, a kind of constitutional turf war that we could do without.
I do not blame the judiciary: I have watched enough episodes of Engrenages to understand the difference between inquisitorial and adversarial. I merely note that presiding over a gross miscarriage of justice, week after week for sixteen years is not the strongest foundation upon which to claim the rights of the judiciary to solve the problem.
Re the absence so far of a ‘Post Office Horizon Scandal (Quashing of Convictions) Bill’ (even deciding on a short title indicates the constitutional minefield into which the Government proposed to enter by Rishi Sunak’s announcement at the beginning of PMQs on 10 January) like you, I was immediately uncomfortable with the idea of clearing those who were actually guilty of theft or fraud along with those wrongly convicted. Further, how would clearing by legislation those subpostmasters rightly convicted, but whose cases had not yet been heard by the Court of Appeal, look to those subpostmasters whose appeals against conviction had already been dismissed on the basis that the faulty Horizon IT system was not essential to the cases brought against them? (E.g. in the leading case reported as R v Hamilton [2021] EWCA Crim 577, the appeals of Wendy Cousins, Stanley Fell and Neelam Hussain.) The Government announcement smacked of being a knee-jerk reaction to the public outcry following the screening of the ITV drama to court support for the Government at the beginning of a general election year. Mature reflection has shown the difficulties in going down the legislation route. (One might draw a parallel with the announcement by the Blair government of its ‘back of an envelope’ plan to abolish the role of Lord Chancellor.)
You’ve referred to Lady Carr’s concerns in her answer to a question at a press conference on 6 February. One development earlier this week which you’ve not mentioned is, I’d suggest, particularly relevant. On Tuesday, as reported (inter alia) by The Independent, the Court of Appeal quashed the conviction of Jacqueline Falcon. The constitution of the court in R v Falcon was the same as in R v Hamilton save that the LCJ replaced Picken J. While Holroyde LJ gave the court’s reasons for quashing Mrs Falcon’s conviction, the report continues: “Baroness Carr said Ms Falcon’s case was the 71st Horizon-related conviction quashed by the Court of Appeal, adding that her appeal was dealt with at a 30-minute hearing just over three weeks after the CPS indicated it would not oppose the challenge. “The court has been and remains committed to the efficient and swift dispatch of Horizon appeals,” the most senior judge in England and Wales said. She added that recent cases coming before judges were being dealt with “under the fast-track approach”.
So, if Horizon cases are referred to the CACD, they can be dealt with speedily – and more quickly than legislation that’s not even yet been published in draft. (I’m hoping a transcript of R v Falcon will shortly be published on BAILII). The main problem may be in identifying all the Horizon cases and getting some defendants, who have chosen to ‘move on’ with their lives, to engage in the process.
I once heard that the route of appeal went crown court - COA and to the Supreme court. If the supreme court got it wrong then it was parliaments job to tell them so.
Given that a large body of law is 'judge made' what exactly in a democracy is the mechanism to tell the judiciary they got it wrong?
Separation of powers can lead to separate competencies and IMHO courts generally don't like being told to back off because they don't understand or its non of their business.
My understanding is that the courts are condemned in this. Post office may take most of the blame but the case of Lee Castleton demonstrates the failure of the legal system and its apparent unwillingness to address systemic failures.
“ 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”
In the matter of the Post Office convictions, the judiciary which Baroness Carr so strongly defends presided for many years over trials, the majority of which, it now appears, were flawed by inadequate disclosure, false evidence about the reliability of the Horizon computer system, and probably in some cases perjury. Baroness Carr seems to think that the judiciary had no role in that tragic farce, simply trying the evidence put before them. Perhaps so, but not a good argument for her proposed remedy, that the judiciary now retry every individual case. It is the case that when the Court of Appeal upheld the appeals of 39 sub-postmasters, the court rejected the appeals of 3, for good reasons. The Carr solution of several hundred individual appeals, considering the time already elapsed, would take an unconscionable further time. Those concerned about the possibility of legislation acquitting the guilty should explain how they balance that concern against the years of suffering already endured by the innocent.
As a general point, one might feel the assertive approach of Baroness Carr on this issue raises some concern as to her view of her role.
A brilliant piece as ever from Joshua- but then also bravissimo- if I may humbly say so- to Alisdair.
Quite apart from the so articulate points he makes about the much to be preferred judicial and rule of law route, there would surely always linger the suspicion that some at least of those so unconventionally “cleared” had in fact been bandwagoning or merely, passively benefited from this (professedly) temporary circumventing of due process in a (supposedly) unique case. Now, who is bold/reckless enough to assert that circumstances such as the Post Office scandal could never arise again? Never is in this context a reckless rather than merely bold word to use, especially since with (so often unwise ) outsourcing under blandishments from mega- corporations in sales “beauty parades” having told departmental officials WHAT THEY WANTED TO HEAR about their systems being “safe as houses” and immensely cost - saving? We many seasoned- in my case wizened- former and current criminal justice defence practitioners have had LONG experience of suchlike as the contracting out of prison and court escort services, the unnecessary contracting out of duty solicitor allocations ( previously and FOR FREE much better managed by we of the profession), the disastrous contracting out of interpreting services and the abandonment of a functioning National Agreement- I could go on, AND on. These are just the ones that leap to the forefront of my mind since representing my profession I had to wrestle with and resist these ill judged forays.
And so in terms of further Post Office resembling revelations who is to say when there might be “another bus” (or several) “along in a minute? A non judicial statutory detour once established with the Post Office, how very handy it would be for whichever complexion of government might then be in power to point to that precedent in seeking a further” separation of the powers-lite” venture, of course “in exceptional circumstances”! Now then, how “exceptional “ does “exceptional” then have to be-or not? The judicial route it must be as streamlined, over which I am comfortable about entrusting that to the wise and principled “management” of the LCJ. My apologies also for a long post, where in mitigation I hope my conviction and passion for what we (almost all) believe in ring out.
An excellent piece as ever.
I noted that the LCJ pointed out that they were fasttracking cases to the CACD when it involved uncontested postal workers. That, it seems to me, the correct approach. I think the rule of law is engaged, not least through judicial independence. Ministers, acting as the Crown, unquestionably have the right to pardon people. However, that does not mean that their convictions were wrong. It is saying that in the interests of mercy, their sentence should be commuted or their conviction expunged. The lack of link to innocence is one reason why the post office groups understandably do not want a pardon. However, it is a very different proposition for ministers or Parliament to declare that convictions are wrong. That concerns the application of the law and is wholly within the competence of the judiciary. It is the same argument being made against the Rwanda Bill. That by overruling the facts of the case and not changing the law, Parliament is usurping the role of the courts. Again, Parliament unquestionably has the power to statutorily overrule the courts on a matter of law, and law students are aware of a few obvious examples of them doing so, but overruling them on facts is a breach of the separation of powers. Similarly, deciding that the courts were wrong to convict is not appropriate. The courts decide when they have got it wrong. It is also a neat deflection exercise, "oh, the courts got it wrong" and not, "a (then) state-owned company deliberately lied and withheld evidence that led to convictions". And I worry that once Parliament gets a taste for overruling convictions it will continue to exercise that power. We do not want to import the US approach of pardoning people that are friends of the politicians.
On your second point, I do not understand why a serving judge would have social media. Even if he is right and he did not want to like the article, which stretches credibility but fat fingers have led to this in the past, that shows the very reason for not using social media. The consequences of a mistake are made permanent (thanks to the fact that several sites archive the internet almost hourly) and can only bring the judiciary into disrepute. Social media should be via the judicial communications office not individual judges.
A final point (long post again, sorry!). Did you see the Pontins story? Apparently, they have been found to have continued to keep a 'black list' of Irish surnames and would cancel bookings from people with those names. Sadly for her, the Lady Chief Justice would not be able to book a week in Pontins. I am sure she is devastated to know that she can't go there...