Private criminal prosecutions – those brought by corporate entities or individuals – have increased in recent years as prosecutions brought by the state have decreased.

On 23 April 2021 the Court of Appeal gave judgment on the appeals of 42 former sub-postmasters and other Post Office employees following their referral by the Criminal Cases Review Commission (CCRC) in the wake of a successful civil claim brought by over 550 claimants resulting in the Post Office settling the claim for £57.75m, without admitting liability.

The Post Office had already conceded that 39 of the appeals should be allowed on the basis that the defendants did not or could not have received a fair trial. The Court of Appeal found that 39 of the appeals should also be allowed on the basis that the prosecutions were an affront to public conscience.

The scale of this miscarriage of justice must have far reaching consequences for the future of private prosecutions.

The background

Between 1991 and 2015 there were 918 successful prosecutions brought by the Post Office against subpostmasters, subpostmistresses and other employees. The prosecutions were based in large part on software called Horizon. As long ago as 2012 the Post Office commissioned an independent review of the operation of Horizon in response to concerns raised by the pressure group Justice for Subpostmasters Alliance and investigative journalists that flaws in the system were responsible for reported cash shortfalls. The report highlighted faults in Horizon which undermined the safety of the convictions that relied upon its accuracy. This led to the group action which resulted in six High Court cases which took place in 2018 and 2019.

The judgment in Bates v Post Office Ltd (No.3: Common Issues) [2019] EWHC 606 (QB) delivered by Mr Justice Fraser was highly critical of the Post Office stating that it showed ‘oppressive behaviour’ in response to claimants who had been dismissed for accounting errors they blamed on the Horizon system [§517]. He went on to say that the submissions provided by the Post Office paid ‘no attention to the actual evidence, and seem to have their origin in a parallel world’ [§138], that the Post Office ‘seemed to adopt an extraordinarily narrow approach to relevance, generally along the lines that any evidence that is unfavourable to the Post Office is not relevant’ [§34], feared ‘objective scrutiny of its behaviour’ [§28] and operated with a ‘culture of secrecy and confidentiality’ [§36].

The implications of such comments to the safety of any convictions resulting from Post Office prosecutions where the court and defendants proceed on the basis that the prosecutor is objective, impartial and fair minded is self-evident. It is therefore perhaps no surprise that prior to handing down judgment in Bates v Post Office Ltd (No.6: Horizon Issues) [2019] EWHC 3408 (QB) on 16 December 2019 Mr Justice Fraser announced that he would be referring the matter to the Director of Public Prosecutions because he had ‘very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system’. As a result of this referral the CCRC referred 47 Post Office conviction cases to the Court of Appeal.

Post Office as a private prosecutor 

The Post Office is in a perhaps unique position as a private prosecutor, and it is that unique position that gave the CCRC the greatest cause for concern upon its referral to the Court of Appeal. Historically, Royal Mail was a public authority but following the Postal Services Act 2011 a majority of shares were floated on the London Stock Exchange. The government sold its remaining shares in 2015 thereby ending 499 years of state ownership.

Royal Mail solicitors are believed to be the earliest known formal investigators and prosecutors in the world and their origins can be traced as far back as 1683. With the introduction of the Penny Black in 1840, the first postage revenue stamp, postal services became more accessible to members of the public and postal traffic volume rose. Inevitably so too did associated crime. The investigations undertaken were serious and varied, including a key role in the detection and capture of the Great Train Robbers.

Following full privatisation in 2015 the Royal Mail Group retained its investigative branch and its legal department and continued to prosecute about 150 cases per year as a private prosecutor. While being granted no investigative powers it has regularly undertaken joint investigations with the police and other investigative bodies that do have statutory investigative powers. It was granted access to the Police National Computer system for intelligence and prosecution purposes. It had financial investigators appointed by the National Crime Agency for the purposes of undertaking financial investigations for restraint and confiscation proceedings, and Royal Mail Group was included within the list of ‘Relevant Public Authorities’ under the Regulation of Investigatory Powers Act 2000 designated to grant authorisations for the carrying out of directed surveillance to investigate crime.

Report of the Justice Committee

On 3 June 2020 the Chair of the CCRC wrote to the Chair of the Justice Committee requesting the Committee to undertake a formal review of the circumstances in which and safeguards in place where an organisation is allowed to act as a prosecutor when it is also the victim and the investigator of an alleged offence. The Committee commissioned an inquiry into the effectiveness of the safeguards in place to regulate private prosecutions.

On 2 October 2020 the Committee reported that ‘the lack of internal or external oversight of the Post Office’s approach to prosecutions is an issue which speaks to a broader concern over the growing numbers of private prosecutions’. The Committee warned that the rising number of private prosecutions justified a ‘proactive approach’ in examining the effectiveness of regulating private prosecutions and suggested that organisations who bring significant numbers of private prosecutions should be subject to inspections and subject to more stringent oversight if found to be misusing the power to bring private prosecutions.

The Committee also recommended that the government review funding arrangements for private prosecutions in order to ensure a fair balance between the prosecutor and defendant and ensure the most cost-effective use of public funds. The ability of a private prosecutor to recover its costs irrespective of whether the prosecution results in a conviction, and at entirely different rates to a legally aided defendant, has long been seen as conferring an unfair advantage to the private prosecutor.

Court of Appeal decision

In considering the 47 cases referred by the CCRC, the Court of Appeal found that there had been a category 1 abuse of process as a fair trial was not possible in any case in which the reliability of Horizon data was essential to the prosecution; that applied to 44 of the 47 cases referred. This was because the (i) whole conduct of those prosecutions was based on the assertion that the Horizon data was reliable and (ii) failures of investigation and disclosure in relation to the problems with Horizon meant those appellants had been denied material which could have been used to challenge the reliability of that data [§§120-126].

The Court of Appeal went on to find that in the same 44 cases, the prosecutions had been an affront to the public conscience constituting a category 2 abuse of process. In reaching that conclusion, the court found:

  • The Post Office had deliberately chosen not to comply with its obligations in circumstances where the prosecutions depended on the reliability of Horizon data. The court observed that these were ‘very serious failures’ in its obligations as a prosecutor and that the Post Office’s approach to investigation and disclosure was ‘influenced by what was in the interests of [the Post Office] rather than by what the law required’ [§129].
  • There was evidence of systemic issues with Horizon over many years and the Post Office ought to have known how its own system worked [§131].
  • The Post Office knew that the consequences of conviction would be (and were) severe [§132].
  • The Post Office’s failings of investigation and disclosure ‘directly implicate the courts’ as had the full picture been disclosed (as it should have been) then none of these prosecutions would have taken the course they did [§133].
  • If the full picture had been disclosed (as it should have been) the public interest in prosecution would have been heavily outweighed by the need to maintain public confidence in the criminal justice system [§135].

Preventing such abuses in the future

In R v Zinga [2014] 1 WLR 2228 Lord Thomas of Cwmgiedd CJ said: ‘At a time when the retrenchment of the state is evident in many areas, including the funding of the Crown Prosecution Service and the Serious Fraud Office, it seems inevitable that the number of private prosecutions will increase, particularly in areas relating to the criminal misuse of intellectual property. In the overwhelming majority of such cases, a prosecution will serve the public interest in addressing such criminal conduct.’ [§57]

That prediction was justified, and in part may have been a self-fulfilling prophecy, but the revelation of how the Post Office investigated and prosecuted their own employees should be cautionary. The scale of the miscarriage of justice and the effect on those who were plainly of character good enough to fulfil their responsibilities was reflected in the settlement with the group claimants. It may seem superficially attractive to allow corporate entities to fill the void left by a chronic lack of public investment in all aspects of the criminal justice system but the pitfalls exposed by the Post Office debacle has laid bare the problems that may exist when criminal prosecutions are brought by the victims of the alleged crime and without sufficient transparency and safeguards for the defendant.

By focusing narrowly on the particular issues with Horizon and the particular failings by the Post Office, the Court of Appeal missed an important and timely opportunity to draw attention to the wider systemic problems with private prosecutions. Although there were strong criticisms of the failures by the Post Office and some limited scrutiny of what lay behind those failures, the court did not embrace the opportunity to consider the issue more broadly let alone make any recommendations for the conduct of private prosecutions in the future.

In reality, in the wake of this scandal, private prosecutors or investigators are unlikely to be trusted with the same armoury of investigatory weapons available to the state but given that already scarce resources available to police and the Crown Prosecution Service for the public investigation and prosecution of crime one can expect that the trend of private prosecutions will continue to be upward.

However, given the limited scope of the Court of Appeal judgment there remain questions over whether the government will accept and implement the recommendation made by the Justice Committee to limit the level of costs recoverable by a private prosecutor and impose further regulatory safeguards in private prosecutions to prevent such abuses in the future.

Private prosecutions have an historic and important place within the criminal justice system. The issue for a private prosecutor going forward is whether the burden of compliance will be worth the expenditure which may no longer be recoverable from the public purse. 

© Getty images/Tolga Akmen

Pictured above: The widow of a former subpostmaster whose name was cleared after his death speaks to members of the media outside the Royal Courts of Justice in London on 23 April 2021. Pictured top: Former subpostmasters celebrate outside the Royal Courts of Justice in London, on 23 April 2021, following the court ruling clearing 39 subpostmasters of convictions for theft and false accounting.