The Post Office scandal – biggest miscarriage of justice in British history

There is a huge scandal in Britain at the moment. 

In 2019, the High Court ruled that the Post Office's Fujitsu's Horizon IT system contained inherent bugs, glitches and errors which had erroneously flagged up account shortfalls. However, by this point, the Post Office had forced at least 4,000 sub-postmasters – the individuals running local branches – to make repayments based on this data.

The Post Office, their investigators, and Fujitsu employees, essentially lied to cover up the widespread problems with Horizon. This cover up was instrumental in this miscarriages of justice which resulted in malicious wrongful convictions and resultant fatalities, and ruination of lives. There probably needs to be a criminal prosecution of certain Post Office management and relevant Fujitsu individuals. They knowingly instigated vexatious litigation, misled the courts, and appropriated serious sums of money from the sub-postmasters who 'repaid' money that was never missing. Then, they received bonuses on the money they stole and the tax they reclaimed. (More info: BBC News)

The government is trying to pass the Post Office exoneration bill to overturn these convictions.

The problem with a legislative approach is as follows: 

• It creates two kinds of precedents:
• When the next scandal comes along, there will be a political clamour for 'something to be seen to be done'. If the government of the day simply refuses, and leaves it for the courts to correct; then inconsistency will lead to accusations of favouritism. 
• It gives government latitude to interfere by fiat with other things best left to the courts, e.g. declaring that an landlocked African country was safe when it was not. Other examples could follow in due course. What if, as opposed to exoneration; a future Parliament passes a law that maligns a given group as being 'guilty' of some crime? 
• There is also a rule of law problem with laws that have retrospective effect. It would entail changing the law of, let's say, assault which would lead to previous convictions being reassessed. The rule of law requires that legislation doesn't move in that direction.
• Some of the sub-postmasters may be guilty. What if, in due course, an investigation reveals that around 10% of all blanket-acquittals were actually guilty? It would taint the acquittal of the 90%.
• Some innocent defendants might fall through the net, depending on how the Act is drafted.

What is really needed is for the government to ensure resources allow these cases to be heard quickly by the Court of Criminal Appeal. Whether via the Criminal Cases Review Commission (which refers cases back to the Court of Appeal) or through a special legal unit that acts as solicitors to the convicted postal workers, or a combination of the both, is a matter of detail. The Criminal Cases Review Commission has been chronically under-resourced. Presently, without their prior approval, none of these old convictions can be sent to the Court of Criminal Appeal. 

However, judges can be remarkably innovative when the need arises. I wouldn't be surprised if a vehicle arises (e.g. an individual appeal) to take the findings from the Horizon Inquiry and make a generally binding decision; namely, that postmaster convictions based on Horizon evidence were fundamentally flawed and unsafe, and that an individual conviction could only stand if the case was re-prosecuted.

I was struck by a comment from Nicholas Cooke KC in an interesting article in the Guardian:

I am very concerned that the proposed legislation will have the effect of covering up the extent to which failings in the criminal justice system allowed this appalling miscarriage of justice to occur.

If this is swept under the carpet, the courts won't adjust to account for this blind spot. Perhaps a judicial direction to a jury?

It is far preferable that court cases are dealt with by the courts.