The Post Office “exonerations” Bill must also quash the convictions of unsuccessful appellants

Last week the government published the Post Office (Horizon System) Offences Bill. It receives its second reading in the House of Commons today.

Clause 1 (1) provides:

Every conviction to which this Act applies is quashed on the coming into force of this Act.”

The Bill will quash the convictions of all Sub-Postmasters and Postmistresses (“SPMs”) who were prosecuted by either the Post Office or the Crown Prosecution Service, whether they pleaded guilty, or were found guilty of a “relevant offence” (that is theft, fraud, false accounting or similar offences of dishonesty) against the Post Office between September 1996 and December 31 2018. Any who were instead formally cautioned will have their cautions expunged.

There will be no need for any of them to show that Horizon evidence was essential, or even relevant, to their convictions as long as they were working in a Post Office where Horizon was in use, and that the offences were allegedly committed while they were working “in connection with” or “for the purpose of” Post Office business. So long as these minimal conditions are fulfilled their convictions will be quashed.

The Bill does not apply where the prosecution was undertaken by an agency other than the Post Office or the CPS. This seems odd and unfair, because some prosecutions were carried out by the Department for Work and Pensions. Just as the CPS used Horizon and Post Office evidence, so did the Department for Work and Pensions; and it did not miraculously become reliable just because it was being used by the DWP.

Nevertheless, for the most part it is a good and necessary Bill. No doubt some guilty people will be cleared along with the innocent. Post Office employees convicted of stealing from the mail, or stealing from a till on the basis of CCTV evidence, could find themselves declared innocent even if their convictions had nothing to do with Horizon. So be it. Some wrongful acquittals are a small price to pay to help to rectify the most widespread miscarriage of justice scandal of modern times.

The SPMs have waited far too long for their exonerations and the Bill leaves no scope for nit-picking arguments about how important the Horizon evidence was in any particular case. Without this Bill it is highly likely that the Post Office would continue to try to resist many appeals if it thought it had a chance of doing so. That is not speculation. It has been resisting them. In January of this year the Chief Executive of the Post Office wrote to Alex Chalk, the Justice Secretary, to say that they would “feel bound to oppose” at least 369 appeals against conviction, together “with another 132 in which we cannot determine the sufficiency of evidence without more information.”

The Bill is likely to sail through Parliament and will become law this summer. The vast majority of wrongfully convicted SPMs will then find that their convictions have been quashed, without even the need to make any application.

However, along with those prosecuted by the DWP, another small group of SPMs will not be helped by the Bill. Indeed they are likely to feel that its provisions victimise them still further, simply because they have fought harder than most to clear their names.

Those who have appealed unsuccessfully to the Court of Appeal will be excluded from its provisions.

One can understand the principled arguments against legislation to quash criminal convictions: it has been said that it breaches the principle of separation of powers, it usurps the function of the courts, it sets a dangerous precedent and so on. (Most of these have been well answered, incidentally, by Robert Craig in an article on the UK Constitutional Law Association website).

Why not instead, as David Allen Green has argued, fund the Criminal Cases Review Commission properly and instruct it to get on with sending cases back to the Court of Appeal with instructions to the Post Office not to oppose any appeals?

The answer is that the CCRC / Court of Appeal model simply wouldn’t work; and it certainly wouldn’t work quickly enough. Many of the convicted SPMs are now quite old, some have already died. They have been prosecuted, gaoled, had their assets seized, lost their jobs and their reputations. Hundreds of lives have been ruined. They need exoneration and compensation now, not in a few years time and not after having to fight their way again through a legal system that all of them have every reason to distrust.

Few would have much confidence in the ability of the CCRC to work at anything like the speed required, even if – an optimistic and highly unrealistic assumption – it was given the necessary resources. And since Hamilton & others v. Post Office Ltd [2021] EWCA Crim 577,  where the Court quashed 39 convictions (while upholding 3 others) the Court of Appeal has shown repeatedly that even now, and even where Horizon was relied upon to obtain a conviction,  it can still be very difficult for a SPM to win an appeal.

The reason for that stems from the Hamilton judgment itself. Whilst a total victory for most of the SPMs concerned, the case set a precedent which has been used against some subsequent appellants. The Court of Appeal decided it will only quash SPMs’ convictions if they can show that Horizon evidence was “essential” to their convictions. If, for example, a SPM confessed during one of the Post Office’s notoriously unfair investigations, or pleaded guilty in a desparate damage limitation compromise, it might well not be regarded as “essential.” If a case was merely supported by Horizon evidence the conviction will be upheld, no matter that the trial jury might very well not have convicted if it knew what we now know about the quality of that evidence.  The Court does not use the language of “burden of proof” or “standard of proof” in its judgments, but the practical effect is that the burden remains on the convicted SPMs to demonstrate that their convictions are unsafe.  

Most of those who have appealed have indeed been successful, but not all; and those who have not succeeded have had to undergo all the strain and worry of an appeal only to find themselves, in effect, publicly condemned all over again.

The government was right to see that the Court of Appeal’s minimalist approach was not working.

And since Hamilton was decided the Post Office Horizon Inquiry has uncovered a torrent of horrifying evidence about the Post Office prosecution process, making the the Court of Appeal’s conservative approach still more questionable.

The useless Horizon software was but part of the scandal. Just as bad was the way SPMs were prosecuted. From the so-called “investigators” bullying bewildered men and women into confessing to non-existent crimes, to the gormless jobsworths conscientiously ticking the boxes to identify suspects as “negroid” or “Siamese,” whilst ignoring the most basic principles of fair disclosure; from the suavely suited barrister suggesting subtle pre-trial “clarifications” to the evidence of a compromised expert witness, and the trial advocates magnanimously agreeing to drop baseless theft charges in exchange for guilty pleas to equally baseless false accounting charges, nothing about the investigation or prosecution process was fair. At every stage it was manipulated to ensure that the Post Office processed its hundreds of victims to ruination, bankruptcy or imprisonment with cruel efficiency. Instead of the dispassionate objectivity that should characterise all prosecutions, courtroom victories were sometimes gleefully celebrated.

It is no doubt for this reason that the government has been persuaded to quash the vast majority of Post Office convictions without recourse to the courts. The premise upon which the Bill is based is that all Post Office prosecutions during the relevant period were so tainted with unfairness that any resulting convictions should be quashed without a detailed examination of their precise facts.

It is also for this reason that the decision to exclude the unsuccesful appellants makes so little sense.

Before 2o21, amongst the hundreds of SPMs convicted only a few –  no-one knows exactly how many – even attempted to appeal their convictions, either to the Crown Court (if the original case was heard by Magistrates) or to the Court of Appeal, if the conviction was in the Crown Court. I can find no record of any successful appeals before 2021, although it is possible that there were one or two. From then onwards at least thirteen appeals have been opposed by the Post Office and rejected by the Court of Appeal on the grounds that Horizon evidence was not “essential” to the conviction.

One such case was that of Wendy Cousins, who – like many others – pleaded guilty hoping for a suspended sentence after receiving legal advice that the Horizon evidence was unassailable. Her appeal was rejected in 2021 because Horizon evidence, though used in her prosecution, was said not to be “essential” to the conviction. Less than a year after her conviction Mrs Cousins was dead. “All she ever wanted to do was clear her name,” said her son Paul:

My mother died a convicted criminal for something she didn’t do. I feel angry and bitter. I used to think the judicial system is innocent until proven guilty, but every stage it’s been guilty until proven innocent.”

Another was that of David Cameron. Mr Cameron had worked for the Post Office without any suspicion of impropriety since 1987 and managed the England’s Lane Post office in north London from 1992. During the 1990s and up to 2007 when he was convicted like thousands of other customers I must have used his friendly and helpful Post Office many times. As with so many other victims of the scandal those who knew him well spoke very highly of him.

In 2005 and 2006 money went missing from the Post Office card accounts (“POCAs”) of 4 elderly ladies, and he was convicted at Wood Green Crown Court in 2007 of stealing just over £2,000. He did not appeal his conviction at the time, no doubt because he was told that (on the basis of what the defence then knew) he had no arguable grounds to do so. Following the revelations about Horizon Mr Cameron sought leave to appeal his conviction, and his application was heard by the full court in 2022. By then many records both from the Post Office and of the trial itself had, inevitably, been lost. It was even (as the Court of Appeal noted) “not altogether clear” which witnesses had given evidence at the trial. There was no trial transcript. A Post Office audit made during the investigation had disappeared. Whilst Mr Cameron had not suggested that Horizon could be responsible when interviewed by the Post Office investigators, he did remember raising the issue when he gave evidence at his trial, in order to explain the losses which were otherwise inexplicable except on the basis of dishonesty. What was clear was that the losses themselves were calculated at least in part using Horizon, because a draft (the final version may not have included the word “accurately”) agreed fact at the trial was:

The POCA withdrawal printouts exhibited as GW/1-GW/6, the screenshots exhibited as GW/8-GW and the transaction log extracts exhibited as NB/1-NB/8 and NB/22- NB/23 accurately represent the transactions recorded by the Horizon system shown on them, and comply with the provisions of section 117 of the Criminal Justice Act 2003 .”

What was said in the judge’s summing up (normally something of central importance in any appeal), or in counsels’ closing speeches (which might have thrown light on how important the Horizon evidence was thought to be by the participants in the trial) is not revealed in the judgment. Presumably that is because again no record of them has survived. The Court emphasised that Mr Cameron had not raised problems with Horizon during the investigation:that was harldy surprising in 2007 when the system was widely thought to be reliable and unchallengeable. Despite all the uncertainties, and the clear evidence that Horizon evidence was used in the prosecution, the Court concluded that Mr Cameron’s was “not one of those exceptional cases in which it is appropriate to allow the appeal.”  Now, instead, through no fault of Mr Cameron’s, it is to become one of those exceptional cases which will not be quashed by statute.

Yet another case was that of Roger Allen, a Sub Postmaster prosecuted not by the Post Office but (like a small number of other cases) by the Department for Work and Pensions because he was accused of stealing pension money. Mr Allen pleaded guilty to theft in 2004 and was sentenced to 6 months imprisonment. In 2018 he applied to the CCRC which referred his case to the Court of Appeal. The Court accepted that Horizon “played a role” in his prosecution but said that it was not “essential” to his conviction. This was despite the fact that virtually no paperwork remained from the case beyond a draft indictment, the Crown Court log (not the same as a transcript of evidence), a call log “relating to certain calls which were made to POL,” and a pre-sentence report.

It is worth noting that all these cases were decided before the Horizon Inquiry had uncovered the full extent of the Post Office’s malfeasance; indeed the Inquiry is far from over and there may well be even more shocking revelations yet to come.

Had the SPMs not appealed none of this would matter. On the Bill becoming law their convictions would be quashed along with those of the hundreds of others who have not appealed.

Mrs Cousins is dead, but her children and people like Mr Cameron and Mr Allen must feel that they are being punished yet again, simply for contesting their convictions.

The postal affairs minister, Kevin Hollinrake, a decent man who has been generally supportive of the SPMs, tried to defend the provision, telling Times Radio that those people will be able to appeal again in light of our legislation. … We will support them where we can to bring their cases, and we very much hope people who are innocent who follow that process are exonerated.” Mr Hollinrake later “clarified” his remark. The legislation does not enable unsuccessful appellants to appeal again, and even if it did their appeals would simply be rejected again.

Instead, said Mr Hollinrake, they would have to be “re-referred by the CCRC but we will do all we can to assist.” That is, with respect, an empty promise.  The CCRC will not refer cases back to the Court of Appeal unless some new point of law or entirely fresh evidence is produced. “All we can do to assist,” means nothing.

The rationale for excluding unsuccessful appellants like Mrs Cousins and Mr Cameron is opaque. According to the Bill’s explanatory notes, it preserves the role and independence of the courts.” It is a nonsensical explanation when the whole point of the Bill is to overturn hundreds of convictions without any court process at all.

Nor does it explain why unsuccessful appellants to the Court of Appeal should be excluded, when those who have appealed unsuccessfully to the Crown Court are included.

The Bill even excludes from the scheme those who have merely made a written application for leave to appeal which has then been refused by a single judge. In such cases there has not been a court hearing, nor any oral argument.

Typically such applications for leave to appeal are based upon arguments that the trial judge misdirected the jury, or that evidence was wrongly excluded or wrongly admitted.

During the relevant period from 1996 – 2018 Horizon faults were being concealed by the Post Office, so most applications for leave to appeal are likely to have been for reasons unrelated to Horizon. There would have been no judicial assessments of the significance of Horizon in most of the applications, and if there had been they would have been conducted in ignorance of the scandal that has subsequently emerged. Yet the mere fact of having had a written application rejected ten or twenty years ago will be enough to prevent a SPM being exonerated, and thus to prevent them receiving the compensation to which they would otherwise be entitled. The explanatory notes make not even a token attempt to justify this indefensible exclusion.

We must hope that during its passage through Parliament the Bill is amended so that it quashes the convictions of all SPMs caught up in the Horizon scandal, including those who have had their appeals rejected. To refuse them the justice finally being given to those who never appealed would be to create yet another chapter in this seemingly interminable saga of injustice.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

9 thoughts on “The Post Office “exonerations” Bill must also quash the convictions of unsuccessful appellants”

  1. As the Explanatory Notes to the Bill state (para 21) this is “an unprecedented and wholly exceptional solution to a miscarriage of justice of unparalleled scale and impact”. The next paragraph, stating that “The approach to quashing convictions in the Bill does not set any constitutional precedent” is nonsense: clearly it does set a precedent, albeit one it is hoped will never need to be followed.

    One can understand the concerns of Government not to be seen to stepping on the shoes of the judiciary by reversing by statute a decision the Court of Appeal has already made (even where the ‘decision’ is only that of a single judge refusing leave to appeal on consideration of the papers and without the benefit of the Hamilton judgment and what has emerged from the public inquiry), but you make a powerful argument for extending this unprecedented response to the “unparalleled” miscarriage of justice to such cases. I intend to e-mail my MP (a former justice minister) urging him to propose the necessary amendment(s)to the Bill to prevent further injustice.

    Incidentally, the concern of the executive (or one of its agencies – in this case the CCRC) not to be seen to be trespassing on the territory of the judiciary was expressed in one of the submissions of the CCRC in the recently-reported case of R (Crown Prosecution Service) v Crown Court at Preston [2023] EWHC 1957 (Admin), [2024] 2 WLR 779. At para 35(iii) (page 790F of the WLR report) Bennathan J records this in his judgment handed down on 27 July 2023: “The central concern of the CCRC, as expressed in written and oral submissions by Mr Philip Rule KC, was to retain the important constitutional distinction between the roles of the CCRC and the courts, whereby only the courts have the power to overturn or uphold convictions.” Bennathan J (with whose judgment Edis LJ agreed) also pointed out at para 41 (page 792D) the “need to be realistic about how the CCRC functions.” In the following paragraph (para 42), and relevant to the need to act swiftly to overturn the unjust convictions of subpostmasters (apart from anything else, to enable them to access the £600,000 compensation on offer), Bennathan J set out, by reference to the CCRC Annual Report and Accounts for 2021/2022, “how long and arduous a process the CCRC route to an appeal can be”—even if, as in the recent ‘Horizon’ appeal R v Falcon (reported in the Evening Standard on 13 February 2024) the Court of Appeal was able to and did deal with a case within 3 weeks once the reference reached the court. The report records Lady Carr CJ as saying that Ms Falcon’s case was the 71st Horizon-related conviction quashed by the Court of Appeal, adding that her appeal was dealt with at a 30-minute hearing just over three weeks after the CPS indicated it would not oppose the challenge. “The court has been and remains committed to the efficient and swift dispatch of Horizon appeals,” the most senior judge in England and Wales said. She added that recent cases coming before judges were being dealt with “under the fast-track approach”. It would seem that the LCJ is not enamoured with the Government’s initiative!

  2. Superb comment, in particular on the case of David Cameron. We (a group of SW reliability experts and lawyers) are working on a paper precisely on the Cameron application of leave to appeal and its denial. The reasons we have are the reasons you adduce, but with more detail on the technology. The main point to writing is somehow to get the courts to reconsider, but I don’t see much leverage just through publishing a paper. I’d be grateful if you could get in touch and maybe help with some advice!

    1. I would be interested to see your paper and I will try to contact you, though I doubt I will be able to offer much in the way of helpful advice.

  3. “Those who have appealed unsuccessfully to the Court of Appeal will be excluded from its provisions.”

    Do you allow foul language in your blog comments? Because my reaction is “How fucking dare they?”

    Then I ask what sort of dimwit civil servant would write that line and what sort of dimwit Minister would retain it?

    Moreover “The Bill does not apply where the prosecution was undertaken by an agency other than the Post Office or the CPS” – how fucking dare they again?

    We (yer masses) have to find a way to change the incentives on the governing class.
    Tumbrils! I demand tumbrils! After all, the numbers would be small change once we’ve executed all the Covid traitors.

    1. Yes, in general foul language is permitted, though not encouraged. As someone who could be considered a very junior member of the governing class I’m not all that happy about the tumbrils comment, but on this occasion I have allowed it.

  4. Thank you for a very considered blog on these horrific details in the events being presently revealed in the Horizon Inquiry. Two things concern me as a non-lawyer: 1. Given the ‘bullying’ imposed on these postmasters/postmistresses/counter employees how can we accept any single person as being guilty of theft or manipulation of the system when all manipulations were being managed by Fujitsu/Post Office employees? After all, would they not be stealing from themselves as franchisees? 2. In my four years of law subjects I learnt that title to assets obtained by theft never passes to the thief. If this is correct, how can Post Office retain the money value of such assets they obtained? Surely this must be given back to the correct owners?

    1. Yes indeed: “nemo debit quod non habet,” as Jeeves might put it. But given the accounting system was totally unreliable I think the “value” of the assets taken by the PO is probably all but impossible now to establish.

  5. I’m assuming sub-postmasters are still being prosecuted and convicted via conventional forms of evidence even today, but I’m also wondering if any imprisoned on what is now viewed as historically untrustworthy evidence, are still serving sentences and if so, are they being released?

    That last bit is rhetorical. I don’t expect you to know the answer, but the IIP sentences have long been deemed “unfair” by “the Government” but I’m gathering that many sentenced thusly, remain in the nick. Being vindicated is nice but not being in prison seems more important, especially for the elderly.

    1. No-one convicted of theft or false accounting using Horizon evidence could still be in prison now. However, the case of Robin Garbutt springs to mind. He was cnvicted of murdering his wife, part of the evidence being a financial motive which was supported by Horizon evidence. I express no view on the safety of the conviction but he certainly has many supporters who consider him innocent.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.