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With the quashing of the convictions of 39 sub-postmasters and sub-postmistresses, and the Post Office promising to compensate all those who lost money, reputation, and more in the Horizon scandal, we are no doubt due for another of the regular orgies of self-congratulation about the Wonders of British Justice.
Forgive me if I do not join in the rejoicing. It seems to me that a familiar script is playing out.
The Post Office fought tooth and nail to avoid accepting that there could be any problem with the Horizon accounting system, to the extent that the judge in the High Court, Mr Justice Fraser, remarked in exasperation that the Post Office’s approach was 'the 21st century equivalent of maintaining that the earth is flat'.
Relevant here is the branch of the law of evidence known as 'similar fact evidence'. Back in 1892, John and Sarah Makin were charged with the murder of a young child Horace Murray, whom they had taken in and promised to care for. What convinced the jury of their guilt was the discovery of the remains of eleven or twelve other infants, buried in the gardens of properties the Makins had lived in. In 1914, a woman named Margaret Lofty was found dead in her bath by her husband, George Joseph Smith. What made it clear that this was not a tragic accident but murder was that two previous wives of Smith, Alice Burnham in 1913 and Bessie Mundy in 1912, had died in similar circumstances.
Twelve or thirteen infants sufficed to hang John Makin as a baby farmer. Three 'Brides in the Bath' sent George Joseph Smith to the gallows. But several hundred respectable shopkeepers all complaining of similar 'phantom debits', with none of them having money inexplicably appearing in their bank accounts? Oh, that was 'an unprecedented attack on the Horizon system' involving people seeking to 'jump on the Horizon bashing bandwagon'.
The Post Office is now making all the right noises about its sympathy for those it has wronged. But it conducted the civil litigation like a species of warfare. The judgments of Mr Justice Fraser are available on the BAILII website. It will be sufficient to quote very briefly from them. 'The Post Office… has resisted timely resolution of this Group Litigation whenever it can'. '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'. A fortnight into the main trial of the civil case, the Post Office applied for Mr Justice Fraser to withdraw from the case, so that it would have to start all over again before another judge. When Mr Justice Fraser refused to withdraw, the Post Office sought to appeal his refusal.
Charles Dickens had the apt description when in Bleak House he referred to the Court of Chancery 'giving to monied might the means abundantly of wearying out the right'.
Eventually, faced with the devastating findings which Mr Justice Fraser made, the Post Office reached a settlement with the 550 sub-postmasters and sub-postmistresses who had sued. The Post Office did not admit liability, and paid out about £58 million. But, thanks to the fact that legal aid in this country has almost been destroyed, the lion’s share of that sum went to litigation funders. As Rob Davies noted (Post Office’s aggressive pursuit of staff casts shadow over ex-boss’s tenure, Guardian, 23 April 2021), the individual claimants received about £20,000 apiece. £11 million to the claimants; £47 million in costs and funders’ fees. Not quite the eventual outcome of Jarndyce v Jarndyce, where the entire estate was swallowed up in costs, but close enough.
And even before the Court of Appeal, the Post Office desperately sought to avoid the damning finding which the Court of Appeal made, that the prosecution of the 39 sub-postmasters and postmistresses was an affront to the conscience of the court and that they should never have been prosecuted.
Having had a Damascene conversion forced upon it, the Post Office is now proposing to compensate the sub-postmasters and sub-postmistresses who were wronged; but, as I understand it, seeks to exclude from any such arrangement those who were parties to the civil litigation, as though the £20,000 bone tossed to each of them was full compensation for the wrong done to them.
As I said at the beginning, a familiar script is playing out.
Let’s go back to the 1970s.
The first achievement of the ironically named Prevention of Terrorism (Temporary Provisions) Act 1974 was the framing of the Guildford Four. Eventually, it was shown that the statements which had convicted the Guildford Four had been tampered with. Allowing their appeal, the then Lord Chief Justice declared 'the police must have lied'. And, having served 14 years in prison for an offence they had not committed, most of that after those actually responsible for the Guildford pub bombing had admitted their guilt, the Guildford Four were released. The officers in their case were tried for conspiracy to pervert the course of justice. 'The innocent Patrick Armstrong (one of the Four) does not exist' declared counsel for one of the officers, prompting the rhetorical question – is it, then, acceptable to manufacture evidence to convict someone you 'know' to be guilty? At all events, the officers were acquitted. The statements evidently tampered with themselves.
Now, you might suppose that if you were wrongly imprisoned, and belatedly released, you would be entitled to some sort of compensation for what you had undergone. You would be wrong. Under a wicked provision in section 133(1ZA) of the Criminal Justice Act 1988, you are only deemed to be the victim of a miscarriage of justice if new evidence shows beyond reasonable doubt that you are innocent – not even that it’s more likely than not that you are innocent.
So we have a familiar script – doggedly insist for years that nothing could possibly have gone wrong; when admitting the miscarriage of justice can no longer be avoided, make the most niggardly redress possible; and above all, ensure that nobody who was responsible for it ever suffers any adverse consequences.
That does mean that there really is no incentive to avoid miscarriages of justice.
Recently, the former cage fighter and reality TV star Alex Reid admitted that in advancing a road accident claim he had wrongly stated that a witness, Darren Summers, was not known to him, and so was an independent witness. In fact, Reid had trained Summers in martial arts. We do not know whether the evidence Summers was to give was true or not, because Reid discontinued his claim before it came to trial. At all events, Reid admitted that in putting Summers forward as an independent witness he had been guilty of contempt of court, and he was jailed for eight weeks.
I do not for a moment condone what Reid did. But I struggle to see that claiming that someone is an independent witness when in fact the two of you are well acquainted is worse than telling one court after another that there are no known problems with Horizon and that any sub-postmaster who says differently is a bandwagon-jumping perjurer. Lord knows, this country’s prisons are full enough already – but we shall know that the Horizon scandal has really been taken seriously when some senior Post Office personnel are added to the prison population. I am not holding my breath.
Neil Hickman is a retired district judge
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