Post Office convictions: setting the record straight

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https://www.lawgazette.co.uk/commentary ... 32.article

egislation will be introduced ‘within weeks’ overturning wrongful convictions of hundreds of postmasters, the Ministry of Justice announced on 10 January.

Seven weeks on, the bill is still far from ready. ‘The government will continue to engage closely with relevant stakeholders as they continue to prepare the legislation for introduction to parliament,’ the Post Office minister Kevin Hollinrake (pictured) told MPs last week. Later, he announced that the bill would be published this month and should be passed by July.

Perhaps we should not be too hard on the government. As it has often said, the legislation is unprecedented. But something comparable has been done in the past.

Under the Policing and Crime Act 2017, pardons were awarded to people who had been convicted of same-sex activity that was illegal at the time. As the legislation makes clear, a pardon does not overturn a conviction. And pardons were awarded only to those who had persuaded the home secretary to ‘disregard’ their convictions under earlier legislation. But that may give us a clue as to how the Post Office (Quashing of Convictions) Bill – if that is what it is to be called – can be made to work.

I had assumed until last week that a minister would sign a statutory instrument listing every person who was being exonerated by the legislation. The government has decided not to do that, for several reasons.

For one thing, the Post Office does not have a complete list of everyone it has successfully prosecuted. For another, legislation that applies only to named individuals would be classified as a private bill, which involves special parliamentary procedures. And some of those being cleared may not want others to know that they had ever been convicted.

Instead, the new legislation will simply quash all convictions that come within its scope. The bill will contain a series of criteria, specifying the prosecutor; the timeframe; the offences; the defendant’s connection with the Post Office; and the use of Horizon software.

Some peers found this concept hard to grasp when it was explained to them in the House of Lords on Tuesday. ‘Can the minister confirm that it will not be Post Office Ltd that will be sifting through who qualifies to have their conviction overturned,’ asked the Liberal Democrat frontbencher Lord Fox.

‘The whole point about this sweeping bill… is that all convictions will be quashed en masse at the moment it becomes an act,’ explained the minister, Lord Johnson of Lainston. If your conviction meets the specified criteria, it will be lifted automatically. You can then go on to claim compensation. And the legislation covers those who have died before it comes into force.

What ministers have not explained is how anyone will know that a particular conviction has been set aside. It would still turn up on a criminal records check unless the Disclosure and Barring Service was told that the individual had been exonerated.

This point, which I raised last week, was not mentioned when ministers were questioned on Tuesday. MPs and peers were more interested in discussing compensation. But perhaps the legislation I mentioned earlier shows the way.

Under the Protection of Freedoms Act 2012, a person convicted of certain sexual offences can ask the home secretary to treat a conviction as ‘disregarded’. If that application is granted, the home secretary must ensure that the conviction is marked as deleted in official records. The person concerned is then regarded as having not committed the offence. There is no public list but the conviction would not be disclosed after a basic search by, for example, a potential employer.

We wait to see whether something similar is included in legislation. Unless there is certainty over who it applies to, I don’t see how the bill can satisfy the lady chief justice’s recent insistence that it must comply with the rule of law.

As Hollinrake accepted, ‘the legislation is likely to exonerate a number of people who were, in fact, guilty of a crime’. Nick Read, chief executive of the Post Office, agreed that this was the least worse option.

But MPs questioned Read on advice he had received from one of the Post Office’s external legal advisers, Nick Vamos of Peters & Peters.

‘It is highly likely that the vast majority of people who have not yet appealed were, in fact, guilty as charged and were safely convicted,’ the solicitor told him in January.

Vamos is a former head of special crime at the Crown Prosecution Service and his analysis of past cases has come up with convictions where the reliability of Horizon evidence was not in issue.

But these convictions were tainted for other reasons. The failure of Post Office prosecutors to comply with disclosure obligations must render all their convictions unsafe. It is right to set them aside.