It was not the Commission which changed the law allowing the Post Office to prosecute subpostmasters on the basis of flawed unreliable evidence. But MPs. Parliamentary scrutiny should mean something, shouldn’t it? Let’s see what it actually meant here. How did MPs discharge their function? Many are lawyers. One of the much touted benefits is meant to be that they can properly scrutinise such legislation and understand its implications. MPs also get expenses to pay for researchers. 

• Did they ask any of the questions the Commission failed to? 
• Did they check the Commission’s analysis or look at what the experts quoted in it actually said? 
• Did they remember the many miscarriages of justice there had been in previous years and consider whether this change might become part of the ever expanding Law of Unintended Consequences? 

Having a memory going back more than a few weeks, curiosity, research, proper analysis: surely this is what MPs should be for? Will it come as much of a surprise to find that the answer to this is no? Not in this case anyway.

The relevant Hansard record provides the answer. MPs made the blindingly stupid mistake of thinking that because computer technology had become more complicated, thus making it more difficult to prove reliability, the answer was not to bother at all because this would be “impractical”. The idea that it was precisely this complexity which made it imperative to find a way of ensuring and proving that it could be relied on – especially in criminal cases when a person’s reputation, career and liberty might be at stake – did not occur to them. They did not question the Commission’s binary approach: keep S.69 as it was or remove it entirely. They did not consider replacing S.69 with something that better addressed the issue of establishing the reliability of computer evidence. Nor did they wonder how much more impractical (in all likelihood impossible) it would be for defendants to rebut the presumption by showing that the system was wrong, unreliable, not working as it should etc. Nor did they consider the costs associated with such a change, in particular, whether Legal Aid would pay for a defendant to challenge computer evidence.  

The relevant Minister – Paul Boateng (a solicitor) – treated it as a trivial change. He frivolously commented about eight year old children being the only ones to understand computers. There was simply no understanding of how complex computer systems operate nor any consideration of the consequences. Boateng seemed to think that the common law presumption worked fine with mechanical sources – traffic lights and speedometers – and so would work fine for evidence coming from complex corporate computer systems. It was unpardonably ignorant.

The result made it very much easier for the Post Office to do what it did. Its misconduct is not the only example of miscarriages of justice caused by this change. In 2015 a trial of nurses in S. Wales accused of wilful neglect had to be abandoned because the computer log of patient records was deemed wholly unreliable. The judge criticised the hospital’s failure to have a dependable computer system in place. The details of the IT failings can be read here. 

Does this matter now?

Yes. The presumption that computer evidence is reliable unless proved otherwise is untenable. It is based on an ignorant misunderstanding of computer systems. It is not supported by IT experts. It has been a key factor in the worst miscarriage of justice in English legal history. The legal aid budget has been cut back even further since 2000 when the change was introduced. It is now practically impossible for a defendant to rebut the presumption. This is not likely to improve any time soon. 

The fundamental problem is the poor understanding of IT by government, the legal system and many of its buyers. Its complexity and risks are not well understood and this has led to “lax legislation, lax regulation and lax procurement”. All have been seen in the Post Office scandal and all of them were caused by government. 

In 2022 the Justice Ministry said there were no plans to review the presumption “as it has wide application”. This is simply 2022’s version of the error made when S.69 was removed. Then it was “impractical” to expect people to prove that their evidence was reliable: too difficult. Now it is too much effort to review this because it’s used so widely. Again, too difficult. But it is precisely because it has wide application that it is imperative that it be based on a proper understanding. Ignoring the problems caused by a flawed decision 23 years ago will not make them go away. It simply means their costs will be borne by those least able to pay. 

Fairness

This is – ultimately – a question of fairness. Fairness between the state and citizens. The state has immense power: to pass legislation, to prosecute, imprison and so on. There is little equality of arms. The very minimum citizens have a right to expect is that the state should use those powers fairly and responsibly, should correct mistakes promptly when they happen and should legislate responsibly, thoughtfully and on the basis of sound evidence. That did not happen here. 

In April 2021 the Court of Appeal said that the Post Office’s conduct in its prosecutions was “an affront to the conscience of the Court.” It would be an affront to the conscience of Parliament for it to keep in place a flawed legislative change permitting such injustice simply because it does not want to confront the consequences of the poor decision it made so many years ago and now do the hard work necessary to put it right.

Cyclefree