Ruling in 2021, the Court of Appeal exonerated thirty nine postmasters of fraud. The judges quashed their convictions, restoring their spotless criminal records. Rather than some mass conspiracy among postmasters to embezzle money from the Post Office, they were stooges and victims. Egregious faults within Fujitsu’s Horizon computer system left them with gaping holes in their business accounts. Rather than examine the technology, senior figures at the Post Office leapt to assumptions of criminal guilt and then clung to them come what may. In the 1990s, computers were philosophers kings, incapable of error. This was the age of Little Britain. ‘Computer says no’ was a decree, not a suggestion.
After the Court of Appeal’s decision, a deluge of appeals was anticipated. Postmasters wrongly pursued and convicted by the Post Office’s private prosecutors were expected to come forward en masse, seeking exoneration, vindication and compensation. They were not cheats stealing from their neighbours. They were victims of one of the greatest miscarriages of justice in British history. Instead, nothing happened. Tumbleweed, not postmasters and press, blew through the Royal Courts of Justice. Occasional decisions quashing convictions were met with shrugs. It took last weekend’s ITV drama to engage and enrage the public, forcing politicians to face the issue.
With this newfound public interest, the government is searching for a lever to pull that will reset this travesty. Ministers and MPs want to be able to say that ‘something has been done’ before the public turns its ire on them. It is not as though they and Post Office executives didn’t have any notice of the scandal. More and more evidence is leaking out about how senior figures at the Post Office sat on their hands – or worse, lied through their teeth. Too pathetic to acknowledge fault in the system, executives willingly participated in the fraud. Figures like Paula Vennells let innocent people be tried in the law courts and the courts of public opinion. Wrongly convicted people like Seema Misra, lost their liberty and their livelihoods. Others were left destitute, forced to repay money they had never touched. And the most tragic of all are those who committed suicide, unable to cope with the pressure heaped upon them and the shame they felt over acts they never committed.
But while the Post Office executives are the figures who deserve the country’s ire and contempt – and the prosecutions that are doubtless looming – ministers and MPs should have done more. Alan Bates, with the support of Lord Arbuthnot, campaigned for over a decade for justice. Time and time again he tried to put evidence before the government and the Post Office about the faults in the system and the innocence of those it was persecuting. But until the drama pricked the public’s conscience, their efforts were to little avail. Meanwhile, all the government did in this time was to funnel billions to Fujitsu and to drape Post Office executives in plaudits and gongs.
Now casting around for a solution, the most obvious lever for the government to pull is the one marked ‘legislation’. This is the modern-day Conservative government’s solution to everything. Obsessed with the idea that Parliament is sovereign, it has used its majority over the last decade to try and legislate itself out of everything and anything. Riven by dissent over EU membership? Legislate for a referendum. Troubled by the sea-border between Northern Ireland and the mainland? Legislate away international law. Told by the Supreme Court that Rwanda is not safe for asylum seekers? Legislate to say that actually, it is.
What does distinguish this effort from the others is that it isn’t venal and self-serving. There is shame enough to go around the entire House of Commons, with no party immune from blame, and there is a desire to genuinely fix this calamity – so much as it is possible to do so. The wrongfully convicted postmasters, many of whom are ageing and retired, deserve absolution and compensation as soon as possible. No one benefits from these convictions hanging over their and their families heads. But for Parliament to once more stick its head under the hood of the British constitution is only likely to do more damage in the long-run.
The British constitution is still reeling from the consequences of the Brexit referendum, while Sunak’s fixation with Rwanda means that another constitutional face-off between the Supreme Court and Parliament is almost inevitable. Passing legislation absolving the postmasters would be yet another subversion of the separation of powers. Letting Parliament wipe away convictions usurps the judicial role. Courts are responsible for the enforcement of law and justice – not politicians. Acquitting the postmasters by legislative fiat would be the inversion of another constitutional abomination, acts of attainder. These acts were used to convict, imprison, and even execute political opponents. Parliament used an Act of Attainder to order the execution of Thomas Stafford, a favourite of King Charles I, in 1623. It became a stepping stone towards civil war.
Legislation exonerating the postmasters would be abusing parliament’s sovereignty, no matter how commendable the aim. And it would be doing so unnecessarily. Courts are more than capable of reversing wrongful convictions, en masse or otherwise. Ironically, it is Parliament’s most recent legislative interference in the appellate process that has made it more difficult for judges to reverse miscarriages of justice.
Courts are more than capable of reversing wrongful convictions. Ironically, as other scandals, like Oliver Campbell and Andrew Malkinson have shown, it is Parliament’s interference in the appellate process that makes it more difficult for courts to remedy this injustice. The Criminal Cases Review Commission, which is responsible for reviewing the safety of convictions and referring cases to the Court of Appeal, is only able to do so if there is a ‘real possibility’ of the appellate court overturning the conviction. This sets the hurdle so high that in the past 25 years, the CCRC has only referred 800 cases to the Court of Appeal. Parliament would be better reforming the Criminal Appeal Act 1995 and enhancing the powers of the CCRC so that it is better able to investigate miscarriages of justice and to refer them to the higher courts.
Beyond this, the Post Office scandal is a mess for the courts, not Parliament to fix. . Even if the government refuses to reform the appellate process, Parliament would be better legislating for a system that would let the courts hear the appeals of the postmasters en masse. Panels of judges, or perhaps even KCs, as Michael Sternberg KC suggested in the Times this week, could be empowered with reviewing and quashing convictions on an expedited basis. But even without legislation like this, there are ways in which the courts can move quickly to exonerate the wrongfully convicted. The CPS could investigate every one of the nine hundred convictions, deciding which hinged on the faulty Horizon system. Coupled with a statement from the Post Office acknowledging that it had failed to comply with its duty of disclosure, the cases could be returned to the courts and the convictions quashed. Nothing warrants setting aflame another constitutional norm.
No one should be surprised by the fact it has taken this long for the Post Office scandal to come to real public attention. The government, still busy handing billions to Fujitsu for IT systems while offering millions to the postmasters, wanted to keep it quiet. Elsewhere, the Liberal Democrats worried that the fingerprints of their leader, Sir Ed Davey, were all over the scandal; while Sir Keir Starmer was head of the CPS at the time prosecutions were pursued. Keeping the scandal far from the front pages was in everyone’s interest except the postmasters.
With this in mind, MPs shouldn’t be able to absolve themselves of responsibility by waving a magic legislative wand. Legislation will not bring some of them back to life, or erase past financial struggles. Parliament’s responsibility is to smooth the path towards justice. Not to deliver it itself.