Post Office scandal: what next?
Something must be done, say police and politicians — but don’t hold your breath
The ITV drama Mr Bates vs The Post Office1 has captured the attention of politicians much more effectively than the careful and methodical work of Sir Wyn Williams’s public inquiry. But I would be surprised if ministers pre-empt the former judge’s work by taking the radical steps that some are now calling for. It seems even less likely that there will be any prosecutions before Williams has finished taking evidence.
Hundreds of sub-postmasters were wrongly prosecuted by the Post Office. Others were sued over non-existent shortfalls. As a result, the Post Office received payments to which it was not entitled. Saturday’s Times quoted the Metropolitan Police as saying that officers were “investigating potential fraud offences arising out of these prosecutions” relating to “monies recovered from sub-postmasters as a result of prosecutions or civil actions”.
The Sunday Times reported yesterday — and the prime minister later confirmed — that the justice secretary was exploring how to exonerate hundreds of sub-postmasters who had been unjustly convicted during the Horizon IT scandal.
The paper said:
Alex Chalk is looking at whether the Post Office can be stripped of its role in the appeals process, with many victims still attempting to overturn wrongful convictions…
This includes whether the Crown Prosecution Service could take over [outstanding appeals], which may make it easier for convictions to be quashed.
That strikes me as strange. It’s true that a handful of appeals have been opposed by the Post Office. In April 2021, the Court of Appeal overturned the convictions of 39 sub-postmasters in a single judgment. The judges drew a distinction between those 39 cases — in which there was no independent evidence of an actual shortfall — and three further appeals in which the reliability of Horizon data was not essential to the prosecution case. Those three convictions were safe, the court found.
I can see no reason to suppose that the outcome would have been any different if the respondent to these appeals had been the Crown Prosecution Service rather than the Post Office. These were ultimately decisions for the Court of Appeal.
Perhaps this is a diversionary tactic by the justice secretary. As I reported on Friday, Chalk received a letter on 14 December from the government-appointed Horizon Compensation Advisory Board. This pointed out that only 93 convictions had been overturned, although there had been more than 900 prosecutions.
The board offered a number of possible explanations:
Over two decades, much of the evidence has been lost or destroyed by the Post Office.
Individuals’ unwillingness to appeal given their understandable deep distrust of authority.
The Court of Appeal rules impose limitations on the Post Office’s ability to concede cases.
The unreliability of evidence about other Post Office-related systems and Department of Work and Pensions payments, which has still not been adequately examined and may never be.
In cases where Post Office concludes that a retrial would not be in the public interest, the conviction is overturned but the postmaster is denied full compensation and left with an implication of continued guilt.
The board recommended overturning “all Post Office-driven convictions from the Horizon period” — even though “a small minority” of those convicted must have been “genuinely guilty of something”.
That might require legislation. Some MPs would baulk at the prospect of paying compensation to criminals, while others would say it was a price worth paying for the greater good.
A detailed paper sent with the board’s letter pointed out that the Post Office still retained managerial control over the appeal process, though it had instructed independent leading counsel. In the board’s view,
it cannot be right that a body found to have prosecuted in a manner that was found to be an affront to justice, and which continues to demonstrate real difficulties in providing proper disclosure, continues to manage critical decisions on appeals.
For that reason, the board recommended “there should be an independent authority that could step in and govern such a process of investigation and review”.
That may have been what inspired Chalk to suggest bringing in the Crown Prosecution Service.
My own view is that it should be up to those involved — the sub-postmasters and their families — to decide what to do.
The Criminal Cases Review Commission published a note on Friday offering its help. Helen Pitcher OBE, who chairs the commission, said:
Everybody affected by these failings should receive the justice they deserve. However, hundreds of potential applicants have still not come forward, whether that’s directly to the Court of Appeal or requesting a review from the Criminal Cases Review Commission.
Some might understandably still be traumatised by what has happened to them and to their loved ones but we can help and we encourage them to contact us.
That seems to be the right approach. A state-owned body generated these wrongful convictions. If — for whatever reason — those involved want nothing more to do with the criminal justice system, that is surely their privilege.
Am I being pedantic in objecting to the US abbreviation for versus?
John Samuels’ points 1 to 4 articulate well the obstacles confronting the “one fell swoop” notion.
As to his point 5 it is an intriguing proposition which I for one am still musing over. But would that not, as with the batch of convictions already quashed, rather nibble at the challenges here, given that Sir Wyn, as I understand his inquiry so far, is seised only of a finite number of such cases rather than what I imagine must be quite a sizeable number still emerging or to emerge?
I make it plain all the same that I regard the Post Office’s and indeed Fu-Jitsu’s stances of trying to brazen it all out as shameful.
I am coming rather late to this thread as I needed to do some research.
Before any suggestion that the CCRC might achieve justice for the sub-postmasters (“SPMs”) takes root, the following needs to be remembered:
1. Save in exceptional circumstances the CCRC won't consider an application relating to a Crown Court conviction unless permission to appeal has been sought and refused by the CACD.
2. While it is unclear to what extent there may have been convictions of SPMs in the Magistrates Court, leave is required for an out of time appeal to the Crown Court; and it is far from certain that, under the existing Crown Court rules, any necessary extension of time would be granted.
3. The comments of Helen Pitcher, CCRC Chair, need to be seen against the background that:
a) in the Malkinson case the CCRC twice refused his application;
b) were a significant number of SPMs to accept her invitation to apply to the CCRC, not only would they swamp the existing work of the CCRC (see para 4 below), but they would be faced with the hurdles identified in paragraphs 1 and 2 above.
4. The CCRC is woefully under-funded and under-resourced. I have drafted applications currently before the CCRC:
a) conviction June 2009 ; application launched December 2019; unresolved.
b) conviction June 2010; renewed application lodged August 2020; unresolved.
c) conviction March 2018; application lodged December 2022; first looked at by Case Review Manager June 2023; unresolved.
5. A pragmatic suggestion: Sir Wyn Williams is capable of acting as a Single Judge of the CACD. If in the course of his inquiry he concludes that the case of any SPM should be considered by the CACD, he should make it clear that he will grant permission to appeal to that court. That will avoid the requirement for anomalous tailored legislation ; or any other means of creating an ad hoc arrangement for achieving a modification of the criminal justice system which, as you correctly suggest, will have unintended consequences.