Hobson’s Choice? The Subpostmaster issue

Hobson’s Choice? The Subpostmaster issue

The announcement of a law to overturn the subpostmasters’ convictions has provoked some concern amongst m’learned friends, on constitutional grounds. Are these valid? Why is the government in this position?

The dilemma: if every convicted subpostmaster in the last 25 years applied to the Criminal Cases Review Commission (“CCRC“) to have their convictions reviewed and referred to the Court of Appeal, even if they started tomorrow, it would taken an inordinately long time to deal with them, even if the Post Office did not object. Many would likely have died before their cases are heard; their lives would still be blighted in the meanwhile. They would have to wait for the convictions to be quashed before getting compensation. Some may simply refuse to get involved with the justice system. Who pays the costs? What about those who pleaded guilty because they were bullied into it? What about those who have died? Or those who paid money they did not owe in order to avoid prosecution? Do they get the money extorted from them under false pretences repaid? This has lasted a quarter of a century. It is unconscionable to drag it out still longer. Speed is essential if justice is to be done. And it is justice which is needed now – not endless legal arguments.

Could there be a mass appeal via the normal legal process? Possibly. But would it be any quicker?

The main concern has been the worry about setting a precedent: the executive and legislature should not interfere with the judicial process. If these convictions are overturned by Parliamentary fiat, what is to stop a future unscrupulous PM using a large Parliamentary majority to absolve friends rightly convicted? (That faint echo you hear is Owen Paterson, Boris Johnson and those MPs rushing to say that the Standards Committee’s findings could be ignored because, well, just because.) The distinction between the executive, legislature and judiciary is an important one. It is not daft to worry about a rush to breach these boundaries. They exist for good reasons. But.

A touch of humility from the legal fraternity is needed. More than a touch in fact. This miscarriage is in large part due to multiple failings over years by lawyers and the legal process, starting with the Law Commission, via investigators, in-house prosecutors, members of the external Bar, defence lawyers, judges, those supervising or reviewing or even noticing the activities of those bodies with statutory prosecution powers (was anyone doing this? A question for the Ministry of Justice, perhaps), the CPS, to the extent it was involved, the lawyers responsible for non-disclosure, those who failed to blow the whistle (in breach of their professional duties and those owed to the courts), those advising the Post Office’s Board on its obligations and ending with the judiciary which did nothing about a senior retired Law Lord seeking to get rid of the judge hearing the Bates litigation for no reason other than the Post Office’s annoyance at not getting its own way. The legal system does not come out of this story well, however much praise is now due to those lawyers who have worked tirelessly to expose the scandal and help its victims. It is, frankly, a bit much for it to ignore all this in the rush to preserve constitutional proprieties. Doing right is what’s needed now (followed by extensive reflection on its own part in this abysmal affair).

How might this be done?

It is not correct to say that there is no Parliamentary interference with the judicial process. The Attorney-General has always had the power to discontinue a prosecution in the public interest – nolle prosequi – and, in exercising this power, is answerable to Parliament not the courts. It is true that this power is only exercised before a court judgement. After the normal route is an appeal against conviction or, exceptionally, a pardon. But note one important fact about these options: in both, a crime has been committed but it is decided that either the wrong person has been convicted or that, for reasons of public policy, even though they had committed it, the law was unjust (e.g. pardons of soldiers for cowardice or of gay men for now lawful sexual behaviour). There was a crime though.

Here, we cannot say this. This is not overturning convictions because the wrong people were convicted. But because there never was any crime. There never was any money missing. The alleged “missing” monies were figures plucked out of Horizon’s behind. If this had been known at the time, would there have been prosecutions? Wouldn’t the A-G have issued a nolle prosequi order if the prosecutions had not been halted by the Post Office? In effect, what is being proposed now is a retrospective nolle prosequi, a finding that the prosecutions were, as the Court of Appeal has already ruled, an affront to the conscience of the court. They should never have happened because there never were any crimes to be prosecuted (as some of the Post Office’s own documents now reveal). As for those prosecuted on non-Horizon evidence, based on what the Inquiry has shown about the conduct of Post Office investigative/prosecuting staff, no reliance can be placed on any of their work.

Why are we faced with this choice? For years the criminal justice system has been underfunded. Plenty have warned of the consequences; these have been dismissed as special pleading, alarmist or unimportant. The CCRC was seen as so unimportant that it has a part-time Chair who has eight other jobs, including Head of the Judicial Appointments Commission (the CCRC’s conflicts of interest policy having been lost in the post, presumably), which is why, when the Andy Malkinson miscarriage of justice hit the news last summer, we were treated to the spectacle of her promoting her holiday home business in Montenegro. We see the result of this under-resourcing now.

Why the rush? Why, because of the endless delays and denials by government and its wholly owned entity, the Post Office, only finally shamed into action by a TV drama.

Underinvestment, denial and delays. There are some lessons in there for governments. Perhaps they might heed them this time. Perhaps.


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