'Can the 'Post Office convictions' be quashed by legislation?': Jonathan Rogers

In this short video, I'm going to talk to you about the government's announcement that it will legislate this year in order to overturn hundreds of convictions against subpostmasters, which occurred when the Post Office prosecuted them for offenses including fraud, theft and false accounting. I'm going to set out what the problem is that the government are trying to solve. Why they are trying to solve it, why this legislative solution and matters appertaining to how they might go about this.

Let's start with what the problem is. The Post Office prosecuted hundreds of its own subpostmasters at the very least since 1999. Up until 2015. It did so on the basis that the Horizon software which was in place in all Post Office branches and which Subpostmasters had to use whether they liked it or not, showed that more money was being taken in these branches than as Subpostmasters were declaring, leading to the inference, therefore, that the Subpostmasters may have taken the missing money.

We now know that the Horizon software was seriously faulty, had several bugs which the Post Office and Fujitsu were never quite able to solve. We also know that third party access to the software system used by each branch was also possible. Had any of this been disclosed to the postmastersmasters, no doubt they would have successfully pleaded not guilty, but they were never told about these problems. They were always told that there were no problems with the Horizon software and even that they were the only ones to claim otherwise.

Now we have the problem of what to do since the scandal has broken and since we know of the Horizon software problem, it would seem to follow that every conviction which was based upon Horizon software evidence must be unsafe. That is, of course, not to say that every single prosecution brought by the Post Office would necessarily misconceived. There may have been some cases where there the Horizon software actually correctly identified a shortfall, and there may have been other evidence of money going missing. But it would seem probable that the vast majority of cases which resulted in convictions are unsafe convictions, insofar as they seem to have relied entirely upon inferences drawn from the Horizon software.

That is the problem which the government is seeking to solve. It wishes these convictions to be overturned as quickly as possible in order that the postmasters will then be eligible to receive compensation for the harms inflicted by their conviction and in some cases wrongful imprisonment.

The next question is why they want to do this by the legislative solution of simply declaring all these convictions to be unsafe.

Now, certainly why is a question to ask here, because this has not been done before in so many words. By this I mean, that we can find instances in the past of legislation which has the effect of recognizing the moral innocence of people in the past. One example might be the Home Office scheme, whereby men who are convicted of consensual homosexual affairs back in the 1960s, which would be legal today, can now have their convictions disregarded. But that's an entirely different thing. The courts would not be competent to quash those convictions, and in any event, those are cases where the Home Office are only disregarding the convictions on a case-by-case basis. After looking at the entire file of what happened when the person was convicted. What is proposed now regarding the Post Office and the subpostmastersis very different.

For a start, there will not be individual scrutiny of each individual case. In many cases they cannot be because we may have lost the file. If a postmaster was convicted in the Magistrates Court, say 20 years ago for false accounting it is quite unlikely, at least it's entirely possible that both the Post Office and that individual may have lost the paperwork appertaining to what actually happened. So we don't know whether there was other evidence implicating that postmaster besides the Horizon software evidence. So case-by-case scrutiny may be too difficult after all these years. And that leads us to a separate problem. That the Court of Appeal, when hearing a conviction from the Crown Court, cannot simply decide that a conviction is unsafe without hearing what actually happened in the original proceedings.

Also, it's impossible for a prosecutor to simply concede an appeal. It's possible for a prosecutor to say to the Court of Appeal that they are not contesting the, that they are not contesting what the defendant is saying, and that they would be happy for the Court of Appeal to quash the conviction, but they cannot automatically forfeit or concede it, as it were. The Court of Appeal will still have to make its own decision that the conviction is unsafe and it will still want to know what actually happened at the original trial or at the time when the defendant pleaded guilty. If no one knows exactly the evidence upon which he was convicted or upon which he decided to plead guilty, the Court of Appeal will not be in a position to declare the conviction unsafe. Thus, the preference for a legislative solution.

Now, one drawback with this legislative solution, which the government is quite open about, is that it bears the risk that convictions will be overturned in the cases of people who were actually guilty and against whom when they were prosecuted, there was actually evidence besides the Horizon software to implicate them. We are being told that this is a necessary evil in order to facilitate the quashing of convictions for the vast majority of subpostmasters who really ought to have their convictions quashed.

And to remind you, the reasons why we are not putting these cases through the ordinary appeal system is partly that in some cases the files may be lost. But also our criminal appeals system is heavily overworked as it is. So too is the Criminal Case Review Commission and we would need their input in some cases in order to send some cases back to the Crown Court by the defendant pleaded guilty in a magistrates court. For various reasons this would take a very long time if you went through the ordinary procedures.

So having decided that we're just going to cut the Gordian knot and get on with it and declare these convictions to be unsafe, how should the government go about it?
We haven't yet seen the proposed bill, but a couple of problems strike me as being worthy of their attention.

The first problem arises in those cases where subpostmasters have already tried to appeal their convictions, since the problems with the Horizon software were known, but were unsuccessful. Now, the vast majority of those who have appealed have actually been successful. There seem to have been 93 successful appeals so far. Another number, not more than 50, have either been unsuccessful or the applicant has withdrawn the application to appeal, leaving, of course, several hundreds of people who haven't appealed at all. But in any event, there have been some who have appealed and have done so unsuccessfully, and these would be in cases where the Court of Appeal was quite sure that there was other evidence of that guilt besides the Horizon software evidence.

What do we do then with those people who have already unsuccessfully appealed? Should they be benefiting from this generous statutory scheme as well?

I think most lawyers would prefer that they did not, however unfortunate it might be. The reasoning would be along the following lines: that where subpostmasters have not appealed their convictions, all we ever have then is a court convicting them on the basis of faulty Horizon's software, probably, some 20 or so years ago, when the problems with Horizon software were not known. It's irregular, but perhaps not unthinkable for statute to simply declare those convictions to be unsafe now that we know the problems with Horizon software because the court which convicted these people had no knowledge of them. But in the cases where subpostmasters have appealed very recently and their appeal started to be heard by the Court of Appeal in 2021, then we have a situation where a court has reviewed their convictions, looking at the whole file and with full knowledge of the problems of the Horizon software. So it appears to be a further transgression on judicial independence if their convictions were to be set aside by legislation.

Of course, if you then decided those subpostmasters who unsuccessfully appealed should not be entitled to compensation, then I suppose the same would be true of those who unsuccessfully sought leave to appeal. And there may come a point where a line has to be drawn. Yet to be decided, I should think.

Another problem which strikes me as worthy of attention would be the situation of the subpostmaster, who is not entirely satisfied with acquittal by statute. That is an impersonal declaration with nobody actually looking at his or her individual case. Since the government has conceded that their scheme is likely or at least could very well conceivably benefit a few people who are truly guilty, there may well be some subpostmasters who don't want the impersonal acquittal, which may, in the eyes of some people, still carry a taint of suspicion. Should these people be allowed to take their case to an actual court, assuming that they have the file and can show what happened in the original court, where they were convicted and therefore demonstrate on appeal that their conviction is unsafe? Should they be allowed to do this? I suspect the government would prefer that they did not. But maybe they have a right. When we look at Article 6(1) of the European Convention on Human Rights we see that everyone has a right to a fair trial, and that means that everyone has a right, that their guilt of a criminal charge should be determined by an independent and impartial tribunal. And when we talk about the liability being determined, we mean the whole process, including the appeal. In other words, if they have a right to appeal, then they even have a right that that appeal should also be determined by an independent and impartial tribunal. That would seem to be quite clearly not the case in the case of an impersonal statutory reversal of the conviction.

So if the statutes were to disallow anyone to appeal, there may arguably be an infringement of these persons rights under Article 6(1) if they would prefer a court to acquit them on appeal. Now, there may still be distinctions to be made. In a lot of these cases the subpostmasters will still be appealing rather late. The problems with Horizon software have been done before now, and one is expected to launch one's appeal as soon as one reasonably can. So possibly in those cases where subpostmasters have not yet started their appeal, it would not be an infringement of Article 6(1) to deny them the right to do so now and to give them the started to be acquittal instead, because it's not so obvious that they necessarily have the right to appeal after such a long time in any event. In other words, it's not so obvious that their right to determination by a court would be something they'd be deprived of because they might not actually have it. But in the cases of those subpostmasters who have already started the appeal system and have been waiting a very long time because the Post Office so far has been the body responding to these appeals and it has not been quick or in any way as co-operative as one might have liked. I think those subpostmasters who have started a process already are probably in a different position and I should think the statute should permit them to continue with their appeal if they are minded to do so. There then of course arises a potential difficulty that these people might then prove to be unsuccessful. I think that is something which Parliament should simply allow to run its course. That is to say if it is going to have statutory acquittals for all persons prosecuted by the Post Office for these offenses, then that should apply to everyone except those who have already appealed unsuccessfully. If anyone having got the benefit of the statutory acquittal then asserts their right to take their case to court as well, then whatever happens, there should be allowed to happen and it should not affect the statutory acquittal.

This goes back to the judicial independence point. We can't really have statute overturning positions already made by a competent Court of Appeal that a person's conviction is safe, notwithstanding knowledge of the Horizon software problem. But that's because it would be a case of a statute overturning a court decision. It would be less offensive for statute to simply declare people to be innocent and then for court to take a different view in an individual case.

A final observation of my own. Let us suppose that the difficulties I have mentioned in the government's proposed solution, that is the problem of those subpostmasters who have already appealed unsuccessfully, and the problem of those subpostmasters who may have already started the appeal process and want to see it through. If those problems are thought to be of some weight, then here is another thought as to how legislation might try to solve the problem.

Recall that one of the reasons why it is difficult to get these appeals through the system in a speedy way now is that the Court of Appeal will want to have some idea of what actually happened in the original proceedings. That is, the evidence used by the prosecution. Recall also that the prosecutor cannot simply concede that an appeal should succeed, the court must make that decision for itself. There are also technical aspects relating to those persons who were convicted in a magistrates court, where they have pleaded guilty then it seems the Criminal Cases Review Commission must refer their cases back and that is a further delay. Well it seems to me that all of these problems can properly be solved by statute.

Statute could say that a prosecutor is entitled to concede an appeal such that the Court of Appeal can then rubber stamp the conviction unsafe. I'm just talking about Post Office cases here and legislation designed solely for these Post Office cases. But I think that law would be acceptable. I also think that statute could amend the usual safety test and say that a Court of Appeal must quash a conviction unless the prosecutor persuades it that the conviction is still safe.

That would mean that the subpostmasters won't actually need particular grounds to appeal. They will need to have the actual file at their disposal. They could just appeal, and leave it to the prosecutor to dig up the file and to show that they may have been convicted on the basis of much more reliable evidence than the Horizon software evidence.

That would also make the appeal system much more easier to process. I would of course, in turn mean prosecutors would simply concede the appeal if they didn't have the file showing other damning evidence against the subpostmaster. And legislation could deal with other matters. It could also eliminate the need for the Criminal Cases Review Commission to be involved to send cases back to the court where the defendant pleaded guilty in the Magistrates Court.

What I'm suggesting is that the various technicalities of the appeal system, which are causing delay at the moment and which do have some reason behind them, these are the details and technicalities which can be set aside by legislation solely for these Post Office cases. It will then mean that the subpostmasters will eventually be able to say they have nonetheless been acquitted through the proper appeal system and it would also respect the rights under Article 6(1) of the European Convention on Human Rights, in my opinion.