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The Post Office scandal

Legislation to resolve the injustice is not as straightforward as it seems

This article is taken from the February 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In an ideal world, it should not have taken a saccharine ITV series to bring the plight of the sub-postmasters victimised by the Post Office’s Horizon accounting software to public attention.

Perhaps the scandal, despite years of increasing mainstream media coverage, was simply too complicated to explain in readily intelligible terms, and only a human interest angle, backed with a prime time television slot, could do the trick.

Be that as it may, now that the public’s attention has been captured, the question of what to do about Horizon-related criminal convictions has naturally acquired a new sense of political urgency.

Some sub-postmasters have already had their convictions quashed by the Court of Appeal, though not all who applied were successful, since the court took the view that the Horizon evidence had not been essential to the prosecution in some of the cases. Other sub-postmasters are said to be too traumatised by their experience to want to go through the legal process again.

With potentially thousands of convictions to be reviewed, the Criminal Cases Review Commission, already operating under strain, will certainly be overwhelmed, as may be the Court of Appeal. Free pardons, the other traditional method for correcting injustices in the criminal justice system, do not void the convictions themselves, which made them unacceptable to many sub-postmasters.

On 10 January, the government announced its solution: it will introduce legislation to statutorily quash Horizon-related convictions en masse. Predictably, the move drew complaints from some lawyers that it was an affront to the independence of the judiciary, for only judges can undo what judges have done.

A few commentators, including the BBC’s legal correspondent, even claimed that the mooted legislation affronted the doctrine of separation of powers — which, except in a very limited form, has never been a feature of the British system.

In any case, even accepting that the determination of guilt and innocence is at the core of courts’ traditional sphere of action, parliamentary sovereignty clearly means that the legislature has the power to intervene in what it has traditionally reserved to the judges, just as Parliament regularly does in the case of the executive.

But on the whole, at a time when even the mere assertion of constitutional orthodoxy will draw public criticism from certain quarters, the legal reaction has been relatively muted, maybe because the role of the legal profession in the Horizon scandal, which is currently being canvassed in Sir Wyn Williams’s inquiry, is not an entirely satisfactory one.

It is possible some of the convicted sub-postmasters are guilty, faulty computing system or not

In any case, it would be awkward for lawyers and the judiciary to oppose what is clearly going to be a popular measure supported by all parties.

What is true is that precedents for such legislation are hard to find, though they do exist. The Indemnity and Oblivion Act 1660 declared null and void “Judgements Indictments Convictions Attainders Outlawries Penaltyes Escheats and Forfeitures and every of them” for most crimes committed during the English Civil War and Commonwealth (excluded: murder, witchcraft, and being a regicide).

More recently, men convicted of homosexuality offences and executed First World War soldiers have received statutory pardons, though in neither case were the underlying convictions quashed.

Another parallel may be found in the passing of personal acts of Parliament, once a core part of Parliament’s work but now virtually extinct. In those cases, legislation was enacted to afford redress to specific individuals, notwithstanding the generally applicable law.

The grant of divorces, the naturalisation of aliens, the disposal of large estates and, as recently as 1987, the enabling of marriages between persons within prohibited degrees of kinship, were all traditionally accomplished this way. And there is of course the act of attainder, which declared a named person guilty of a crime without trial, a rather more controversial type of law-making.

The new legislation will need to define the range of Horizon-related convictions to be overturned, a task less straightforward than it may seem. For example, Robin Garbutt claims he was wrongfully convicted of his wife’s murder based on Horizon evidence of defalcation at his Yorkshire post office branch, which was introduced into evidence at his trial.

The CCRC refused to refer the case to the Court of Appeal on the ground that the Horizon evidence was “not essential to his conviction”, though given the lack of insight into the jury’s thinking it is hard to see how that claim can be made so confidently. It is unlikely the government’s bill will quash Garbutt’s conviction, but his and other cases are bound to cause difficulties.

Moreover, although the vast majority of convicted sub-postmasters are clearly innocent, it is possible that some are guilty, faulty computing system or not. Drafters will thus have to decide whether to err on the side of either clearing some potentially guilty sub-postmasters or of letting some dubious convictions stand.

The government’s solution is to make sub-postmasters sign a declaration that they are innocent before they can receive compensation, an imperfect albeit sensible compromise. But although the new legislation will help, the ugly legacy of Horizon will live on for some time yet.

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