Former subpostmasters celebrate outside the Royal Courts of Justice in London, on April 23, 2021 (Photo by TOLGA AKMEN/AFP via Getty Images)
On Law

An affront to justice

The Post Office scandal has shown that private prosecutors should no longer be left to regulate themselves

Joshua Rozenberg

This article is taken from the June 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

In April, the Court of Appeal put right the biggest miscarriage of justice it had ever dealt with in a single ruling. No fewer than 39 former Post Office staff were cleared of crimes of dishonesty. All had lost their jobs and some had served prison sentences. Three of them had died. There is much that can be done to prevent a scandal like this happening again — but not if the government continues to reject calls for further safeguards.

Apart from the defendant, there are normally three separate parties involved in a criminal trial: the alleged victims, police investigators and the Crown Prosecution Service (CPS). These cases went wrong because the Post Office was complainant, investigator and prosecutor, all rolled into one.

Although criminal proceedings are brought in the name of the crown, anybody can initiate a prosecution. During the nineteenth century, that role was gradually taken over by police forces. The first director of public prosecutions, who started work in 1880, was allowed to deal only with cases “of importance or difficulty”. In 1985, when the CPS was created to handle cases that had previously been prosecuted by the police, parliament preserved the right of individuals and corporations to bring “private” prosecutions.

Some safeguards already exist: the attorney general or the CPS can stop any case and some cannot start without their consent. But the government saw “no sufficient justification” for introducing any further restrictions on the right to bring a private prosecution. 

In this context, the Post Office is just as much a private prosecutor as Marcus Ball, the anti-Brexit campaigner who took out a summons against Boris Johnson in 2019 — only to see it overturned on appeal.

The only evidence against the individuals cleared in April had come from a computerised accounting system

The CPS was set up on the recommendation of a royal commission. “We do not think,” it reported in 1981, “that private citizens should have an unlimited right of access to the criminal process.” If the commission’s recommendations had been accepted, private prosecutors would have had to run each prosecution they wanted to bring past the CPS. 

The CPS could then have chosen to take cases over and bring them to court. Perhaps the Post Office would have paid more attention to its duties as a prosecutor if it had known that someone else might be marking its homework.

The only evidence against the 39 individuals cleared in April had come from a computerised accounting system called Horizon. As the Court of Appeal said in April, sub-postmasters and sub-postmistresses had been “prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation”. 

Indeed, the Post Office had “treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss”. It proceeded “as if it were for the accused to prove that no such loss had occurred” while refusing to disclose any material that might have undermined the prosecution case. 

Those failures of investigation and disclosure were so egregious, the judges said, that prosecutions which relied entirely on the Post Office’s Horizon accounting system were “an affront to the conscience of the court”. 

How, though, can we be sure the Post Office knew that its failure to disclose bugs, errors or defects in the Horizon software had put it in breach of its duties as a prosecutor? Because that’s what it was advised by Simon Clarke, a barrister employed by the solicitors who handled prosecutions for the Post Office. “By reason of that failure to disclose,” Clarke advised his clients, “there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not … There are also a number of current cases where there has been no disclosure where there ought to have been.”

The Post Office scandal has shown private prosecutors should no longer be left to regulate themselves

When the Criminal Cases Review Commission referred the Post Office cases to the Court of Appeal last year, it invited the House of Commons justice committee to consider whether safeguards were needed when an organisation acted as both investigator and prosecutor, as well as being the alleged victim.

Yes indeed, the MPs recommended last October. “Any organisation that conducts a substantial number of prosecutions” should be “subject to the same regulatory standards and expectations of accountability and transparency as public prosecutors.” 

There should be a binding code, enforced by an experienced regulator. Among other safeguards, the CPS should be notified each time a prosecution is initiated. Organisations that brought significant numbers of private prosecutions should be subject to inspections.

Ministers liked the committee’s idea of limiting the costs that a private prosecutor could recover from public funds. But the government was “not persuaded” that introducing a binding and enforceable code of standards, or an inspection regime, would be a “proportionate response”. Such changes “could have a major impact on the right to bring a private prosecution itself”. 

But that, of course, is the point. Private prosecutions may save public money. They also provide a useful backstop. But, as the Post Office scandal has shown, private prosecutors should no longer be left to regulate themselves.

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