The Post Office Horizon IT inquiry resumes taking oral evidence today. Alan Bates is on first and subsequent witnesses are listed on the inquiry’s website. I am sure that many of these evidence sessions will be broadcast live and widely reported.
Hampstead, London. The Penfold box dates from around 1870 and is no longer in use. A similar pillar box still operates in Park Town, Oxford. Residents occasionally awake to find the acanthus leaves painted green.
Meanwhile, I want to bring readers up-to-date with the government’s Post Office (Horizon System) Offences Bill, which will quash postmasters’ convictions and open the door to compensation.
I summarised the bill on 14 March and the House of Commons library published a comprehensive briefing on 18 March. The bill had its main Commons debate on 20 March. It will be considered next by what’s called a committee of the whole house, which means its detailed examination will take place in the Commons chamber with all MPs able to take part.
I don’t suppose any MPs will try to block the bill. But things may be different when it reaches the House of Lords. At the end of last week, a former lord chief justice of England and Wales said he wouldn’t rule out putting down amendments.
Lord Burnett of Maldon told the FT that quashing convictions by statute amounted to an erosion of judicial independence.
He added:
For parliament to overturn convictions is a clear erosion of the separation of powers.
It is perhaps in recognition of this that all politicians are shouting that the legislation should set no precedent. They wouldn’t feel the need to do so unless they recognise that the legislation does not accord with constitutional norms.
Burnett’s successor, Baroness Carr of Walton-on-the-Hill, told me last month that the Court of Appeal stood ready, ready, willing and able to deal with Post Office appeals “in double-quick time”. In February, she made a point of saying in court that Horizon convictions were being quashed “speedily” with the co-operation of all concerned.
But her predecessor would have gone further, the FT reported last Friday:
Burnett advised the government that a better option than exoneration en masse would be to give ministers powers to refer cases to the Court of Appeal; and assume all convictions were wrongful and should be overturned unless new evidence could be presented by the Post Office.
“Everybody is motivated by the strong desire quickly to put right a serious wrong,” he told the FT. “It appeared to me that there was a simple route that would preserve constitutional proprieties and swiftly deliver the exoneration of those wrongly convicted.”
Is he right? Do we really want to reverse the burden of proof in the Court of Appeal? Wouldn’t that be a more disturbing precedent than quashing convictions by legislation? It would certainly be easier to argue that future miscarriages of justice should be dealt with in this way.
Although Kemi Badenoch, the business and trade secretary, is leading on the bill, Alex Chalk is closely involved. The justice secretary explained his thinking to the Lords constitution committee on 20 March:
A miscarriage of justice on this extraordinary scale is of itself an affront to the rule of law… If the British people lose faith in the ability of the system to ensure that innocent people do not go to their grave with a mark of Cain hanging over them, the rule of law faces very significant challenges indeed.
These are wholly unique circumstances taking together the combination of, one, the sheer number, with more than 980 convictions; two, the lapse of time; three, the fact that evidence appears to have been lost in many cases; and, perhaps most compellingly, four, the fact that so many entirely innocent people have totally lost faith in the system…
The system ordinarily relies… on individuals coming forward and persuading the Court of Appeal that the conviction ought to be overturned because it is unsafe; and the burden is upon them to do so… Those four things — the lapse of time, the loss of evidence, the loss of confidence in the system and the sheer numbers — taken separately or certainly cumulatively puts this in an extraordinary position…
The state — or, at the very least, an emanation of the state — broke this and it is therefore for the state to fix it. This is not a failing of the judiciary…
Where the Court of Appeal has specifically considered matters and upheld the convictions, my present view is that we ought not to stray into that territory. On balance, given the unique circumstances, making crystal clear that this is not a precedent, this is the right way to proceed.
What, though, about Burnett’s point? Chalk told peers he had considered it:
I looked carefully at a model that would reverse the presumption and, to all intents and purposes, impose a presumption that this was the fruit of the poisoned tree, so that convictions that had stemmed from prosecutions from the Post Office — or, indeed, were relying on Post Office evidence — were in effect tainted unless they could be rebutted…
The concern must be that, notwithstanding the scheme that had helpfully been proposed and thought up, it is not difficult to see circumstances where, perhaps perfectly properly, people say, “We need to rebut this. We need to have this set down”. Then, of course, the litigants come before the court and say, “I know we all want to get this done by July but we really can’t, in conscience”. The courts par excellence are there to ensure that, once they are seized of matters, they will take as long as they take to do justice on the facts before them.
Just imagine that, if there was a suggestion that the presumption had been rebutted and the whole case was put off to September or beyond because they had to consider this, that and the other, and there had to be disclosure, then it turned out that that person was acquitted and the whole thing was quashed but they had died before or whatever. The whole system would be brought into disrepute.
I fear that what would happen is that, out there, in the court of public opinion, people would turn around and say, “This lot really don’t get it, do they? They really don’t get that there are innocent people who’ve been horribly wronged, by an emanation of the state, and the state couldn’t even clear up its mess”…
It is incumbent on all of us… to say that this is not a precedent. Everyone must make that clear…
Incidentally, to that end, if there are people who have suggestions about how we could make that crystal clear in the bill, for example, I am interested in that because that is the perfectly plain and proper concern that people rightfully raise.
Burnett was unpersuaded. “I am unable to see why a constitutionally appropriate mechanism to bring the cases back to court would undermine public confidence,” he said.
Although there doesn’t seem to be much support for the former lord chief justice on this, the government’s bill has other problems which I hope to explore next week.