*/
As the Post Office (Horizon System) Offences Bill is debated in Parliament and legal circles, Chris Hodges OBE, Chair of the Horizon Compensation Advisory Board, explains why they recommended this controversial route
We do not actually know how many sub-postmasters were wrongly convicted in the Post Office scandal, but it is probably around 1,000: over 700 in England and Wales, over 100 in Scotland and about 30 in Northern Ireland. Unquestionably, multiple individuals have suffered enormously.
The judgment of Mr Justice Fraser in Bates v Post Office Ltd [2019] EWHC 3408 (QB) and the evidence rolling out of the Post Office Horizon IT Public Inquiry have established not just that the computer system was – and was known to be – unreliable, but that there were other grounds on which convictions were unjust. The Inquiry continues to unearth a mountain of relevant evidence and may still take a considerable time to complete its investigation.
Appeal processes have been working, but slowly, and it became increasingly apparent that they would not work at all for many – and certainly not quickly. There are several distinct reasons for this.
The appeals process was designed for individual appeals to be brought and not for mass cases, where there may be various sub-groups, and evolving evidence being uncovered by a public inquiry. The process of appealing convictions gives rise to a sequence of stages in which decisions are made by applying different tests that lead to different outcomes. (I will not go into the details here, but they are curious.) In many cases, evidence has not survived. This is particularly relevant where there is just record of a conviction on the basis of a guilty plea.
The state has no ability to take spontaneous action to rectify injustices over which it has presided and the appeals process requires an individual to come forward. Many sub-postmasters were, and remain, unwilling to come forward at all. The psychological reasons for this are readily understandable. There are many deeply traumatised people, who want to put everything behind them, do not want to talk to any official person, and find any reminders of the past to be re-traumatising. Hence, normal legal requirements for talking to a lawyer or putting their name forward to go through what is to them another uncertain appeal process, or relive history in order to quantify a redress claim, are all processes they shun. The Horizon Compensation Advisory Board has published a paper on the psychological effects of trauma induced by aggressive, bullying behaviour during interviews.*
Statistics reveal serious problems in delivering justice to this cohort. In England and Wales, only 94 cases out of 700+ have been overturned. In Scotland, as at December 2023, a mailshot was sent to around 80 sub-postmasters – of the 16 applications received, 4 were overturned, a number remain refused or in limbo. Various experienced commentators believe that at least a number of the non-overturns were wrongly upheld, but that adequate grounds for appeal were not (able to be) put forward. The main point is that 600 or so cases were not even being brought before the courts, when the vast majority of convictions were clearly unjust.
Until these sub-postmasters have their convictions overturned, they cannot access any redress – returning their own money that was ‘stolen from them’, or any other form of recompense. Of course, we can design procedures that would refer reconsideration to the courts, perhaps streamlining evidence or introducing a presumption of innocence, perhaps unless there is cogent evidence to the contrary. But having to go through hundreds of cases individually will take months or years. Delivery of redress after that will also need some form of individual quantification, and that will take months overall. How long do innocent people have to wait?
So the only mechanism that appears likely to be effective in delivering overturns quickly is a legislative one. Court processes just will not do this. It is accepted that some who did bad things may go free. But it is more important in a civilised state that the innocent should be pardoned than that the guilty escape (they have already been punished in any case).
In a number of cases, individuals may have committed technical offences, such as false accounting. The reasons for this appear to exonerate them morally. There are numerous believable stories of people trying to put things right, or make the problem go away, especially when faced with no adequate helpline or technical support from the Post Office, and being terrorised into making a plea.
Does this offend the ‘separation of powers’ doctrine? Of course. But is that doctrine less important than the paramount importance of delivering justice, especially with speed, to these significantly wronged people? Why should it not be?
Does it set a precedent for the future? Any first occurrence sets some form of precedent, by definition. What is the risk of future political intervention in the independence of the Judiciary? The timing of this question is not ideal, given the Rwanda issues – but they are surely significantly distinguishable from the situation of Post Office victims. The state is here seeking to uphold the innocence and human rights of its subjects, not undermine them in any way.
Some judges, lawyers and academics – and even politicians – may feel very uncomfortable about offending the ‘separation of powers’ doctrine. It would be extraordinary if one did not.
But what would the populace think about the legal and judicial system if it proves to be unable to rectify these multiple wrongs within an adequate time before too many people are able to benefit from any rectification? What price a doctrine? What value is justice?
The victims and the general public do not give a fig for this constitutional doctrine. The clear voice of the populace has been that what is important is delivering justice now, and that the mechanism does not matter. If our systems and procedures do not deliver justice now in this case, what sort of system and state do we live in?
**
LCJ on the legislative solution: The Lady Chief Justice (pictured above) told the Commons Justice Committee in January that she had not given the green light to a legislative solution to quashing the Post Office convictions and that the appeal cases had been progressed ‘efficiently, effectively and robustly’. ‘Insofar as there’s a narrative out there which suggests that the courts have been unable to cope with these cases, or would in the future be unable to deal with large volumes of these cases, that is simply very far off the mark,’ she added. Asked for her view on clearing people by statute rather than appeal at the annual press conference in February, Dame Carr said: ‘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.’
Psychological effects: * Implications of the Psychological Effects on Sub-Post-Masters and Mistresses of the Behaviour of Authorities, a paper by the Horizon Compensation Advisory Board, can be viewed here.
The Bill: The government announced on 10 January that legislation would be introduced to quash Post Office/Horizon-related convictions in England and Wales and the Bill was published on 13 March. Read the Bill and track its progress here.
Pictured top: Noel Thomas, a former sub-postmaster, is pictured outside court on 23 April 2021 after judges quashed 39 convictions.
Christopher Hodges OBE is Emeritus Professor of Justice Systems, Centre for Socio-Legal Studies, University of Oxford and a Supernumerary Fellow of Wolfson College Oxford. He is Chair of the Horizon Compensation Advisory Board.
We do not actually know how many sub-postmasters were wrongly convicted in the Post Office scandal, but it is probably around 1,000: over 700 in England and Wales, over 100 in Scotland and about 30 in Northern Ireland. Unquestionably, multiple individuals have suffered enormously.
The judgment of Mr Justice Fraser in Bates v Post Office Ltd [2019] EWHC 3408 (QB) and the evidence rolling out of the Post Office Horizon IT Public Inquiry have established not just that the computer system was – and was known to be – unreliable, but that there were other grounds on which convictions were unjust. The Inquiry continues to unearth a mountain of relevant evidence and may still take a considerable time to complete its investigation.
Appeal processes have been working, but slowly, and it became increasingly apparent that they would not work at all for many – and certainly not quickly. There are several distinct reasons for this.
The appeals process was designed for individual appeals to be brought and not for mass cases, where there may be various sub-groups, and evolving evidence being uncovered by a public inquiry. The process of appealing convictions gives rise to a sequence of stages in which decisions are made by applying different tests that lead to different outcomes. (I will not go into the details here, but they are curious.) In many cases, evidence has not survived. This is particularly relevant where there is just record of a conviction on the basis of a guilty plea.
The state has no ability to take spontaneous action to rectify injustices over which it has presided and the appeals process requires an individual to come forward. Many sub-postmasters were, and remain, unwilling to come forward at all. The psychological reasons for this are readily understandable. There are many deeply traumatised people, who want to put everything behind them, do not want to talk to any official person, and find any reminders of the past to be re-traumatising. Hence, normal legal requirements for talking to a lawyer or putting their name forward to go through what is to them another uncertain appeal process, or relive history in order to quantify a redress claim, are all processes they shun. The Horizon Compensation Advisory Board has published a paper on the psychological effects of trauma induced by aggressive, bullying behaviour during interviews.*
Statistics reveal serious problems in delivering justice to this cohort. In England and Wales, only 94 cases out of 700+ have been overturned. In Scotland, as at December 2023, a mailshot was sent to around 80 sub-postmasters – of the 16 applications received, 4 were overturned, a number remain refused or in limbo. Various experienced commentators believe that at least a number of the non-overturns were wrongly upheld, but that adequate grounds for appeal were not (able to be) put forward. The main point is that 600 or so cases were not even being brought before the courts, when the vast majority of convictions were clearly unjust.
Until these sub-postmasters have their convictions overturned, they cannot access any redress – returning their own money that was ‘stolen from them’, or any other form of recompense. Of course, we can design procedures that would refer reconsideration to the courts, perhaps streamlining evidence or introducing a presumption of innocence, perhaps unless there is cogent evidence to the contrary. But having to go through hundreds of cases individually will take months or years. Delivery of redress after that will also need some form of individual quantification, and that will take months overall. How long do innocent people have to wait?
So the only mechanism that appears likely to be effective in delivering overturns quickly is a legislative one. Court processes just will not do this. It is accepted that some who did bad things may go free. But it is more important in a civilised state that the innocent should be pardoned than that the guilty escape (they have already been punished in any case).
In a number of cases, individuals may have committed technical offences, such as false accounting. The reasons for this appear to exonerate them morally. There are numerous believable stories of people trying to put things right, or make the problem go away, especially when faced with no adequate helpline or technical support from the Post Office, and being terrorised into making a plea.
Does this offend the ‘separation of powers’ doctrine? Of course. But is that doctrine less important than the paramount importance of delivering justice, especially with speed, to these significantly wronged people? Why should it not be?
Does it set a precedent for the future? Any first occurrence sets some form of precedent, by definition. What is the risk of future political intervention in the independence of the Judiciary? The timing of this question is not ideal, given the Rwanda issues – but they are surely significantly distinguishable from the situation of Post Office victims. The state is here seeking to uphold the innocence and human rights of its subjects, not undermine them in any way.
Some judges, lawyers and academics – and even politicians – may feel very uncomfortable about offending the ‘separation of powers’ doctrine. It would be extraordinary if one did not.
But what would the populace think about the legal and judicial system if it proves to be unable to rectify these multiple wrongs within an adequate time before too many people are able to benefit from any rectification? What price a doctrine? What value is justice?
The victims and the general public do not give a fig for this constitutional doctrine. The clear voice of the populace has been that what is important is delivering justice now, and that the mechanism does not matter. If our systems and procedures do not deliver justice now in this case, what sort of system and state do we live in?
**
LCJ on the legislative solution: The Lady Chief Justice (pictured above) told the Commons Justice Committee in January that she had not given the green light to a legislative solution to quashing the Post Office convictions and that the appeal cases had been progressed ‘efficiently, effectively and robustly’. ‘Insofar as there’s a narrative out there which suggests that the courts have been unable to cope with these cases, or would in the future be unable to deal with large volumes of these cases, that is simply very far off the mark,’ she added. Asked for her view on clearing people by statute rather than appeal at the annual press conference in February, Dame Carr said: ‘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.’
Psychological effects: * Implications of the Psychological Effects on Sub-Post-Masters and Mistresses of the Behaviour of Authorities, a paper by the Horizon Compensation Advisory Board, can be viewed here.
The Bill: The government announced on 10 January that legislation would be introduced to quash Post Office/Horizon-related convictions in England and Wales and the Bill was published on 13 March. Read the Bill and track its progress here.
Pictured top: Noel Thomas, a former sub-postmaster, is pictured outside court on 23 April 2021 after judges quashed 39 convictions.
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