Justice Committee
Oral evidence: Post Office (Horizon System) Offences Bill, HC 684
Tuesday 16 April 2024
Ordered by the House of Commons to be published on 16 April 2024.
Members present: Sir Robert Neill (Chair); Tahir Ali; James Daly; Rachel Hopkins; Dr Kieran Mullan; Chris Stephens; and Edward Timpson.
Member from the Joint Committee on Human Rights present: Joanna Cherry.
Questions 1 to 63
Witnesses
Professor James Chalmers, Regius Professor of Law, University of Glasgow; Dr Robert Craig, Lecturer in Law, University of Bristol; Dr Hannah Quirk, Reader in Criminal Law, Kings College London; and Joshua Rozenberg KC (Hon), Journalist.
Examination of witnesses
Witnesses: Joshua Rozenberg, Dr Robert Craig, Dr Hannah Quirk and Professor James Chalmers.
Chair: Welcome to this session of the Justice Committee. The first part of our session is to look at the Post Office (Horizon System) Offences Bill, which is before Parliament, and in particular at the implications that it might have for the justice system and its operation. We are grateful to our panel of expert witnesses who have joined us. I will come to you shortly, but at the beginning of the meeting we have to deal with declarations of interest. I am a non-practising barrister, a former consultant to a law firm.
Edward Timpson: I am a barrister with a practising certificate, but I am not undertaking any direct court work. I am a former Solicitor General, and a former chair of CAFCASS and of the national Child Safeguarding Practice Review Panel. My brother is the chair of the Prison Reform Trust and I currently advise Ministers on family justice policy.
Chair: Welcome, Joanna Cherry, who is guesting as Chair of the Joint Committee on Human Rights.
Joanna Cherry: Thank you, Chair. I am a non-practising member of the Faculty of Advocates.
James Daly: I am a practising solicitor and partner in a firm of solicitors.
Tahir Ali: I am a member of the Communication Workers Union.
Chair: Thank you. Let me ask our panel of witnesses to introduce themselves.
Joshua Rozenberg: I am Joshua Rozenberg. I am a legal commentator and journalist.
Dr Quirk: I am Dr Hannah Quirk. I am a reader in criminal law at King’s College London and I am editor of the Criminal Law Review.
Dr Craig: I am Dr Robert Craig. I am a lecturer in constitutional law at the University of Bristol.
Professor Chalmers: I am James Chalmers. I am regius professor of law at the University of Glasgow.
Q1 Chair: Shall I kick off? This is a rather unusual piece of legislation, to put it mildly, isn’t it? It purports to quash a raft of convictions. We will go into some of the detail in a moment, but I suppose the first thing to raise is around whether it will actually achieve what it wants to do and what the cost is. We have looked at the Bill, and the aim is to quash the criminal convictions imposed by the courts, which are said to be unsafe because of the unreliability of the Horizon system and the evidence that was generated by it.
To start with, do you think that the Bill achieves that purpose? Clause 1 says that, in effect, those convictions will be quashed on the date the Bill has Royal Assent. Have any of you ever come across such a procedure before?
Professor Chalmers: No, I think would be the short answer.
Q2 Chair: We are all agreed: this is wholly unusual. Is it justified? What are the risks of doing this? You are shaking your head, Dr Quirk. Perhaps you can tell us why.
Dr Quirk: I am uneasy about this Bill for a number of reasons; largely, Parliament and Ministers being involved directly in quashing convictions. I completely understand the sentiment behind the Bill. It has been an appalling travesty of justice that the postmasters have suffered, but I think there are very significant concerns about Parliament getting involved in individual cases as it does.
There are questions about the status of these convictions. I think you may find that people who have had their cases quashed by the Court of Appeal might wonder if there is a difference between their innocence—there are also those who have had pardons and how that relates to it as well. The precedent it establishes is my biggest concern.
Dr Craig: I take the opposite view. I think it is not only justified but necessary. I think it is an excellent idea. To take Chitty’s point of view, he says a pardon can be granted by an Act of Parliament or by seal. Chitty from 200 years ago thinks it is perfectly constitutionally proper and I would agree.
Just as an opening claim, the idea that you exclude some people who have applied to the Court of Appeal seems to me to undermine the entire purpose of the Act, which is to wipe away all the convictions—I say “wipe away” as a colloquial phrase—from the entire period. I think that is exactly what should be done in this case, given the situation. I think it is entirely consistent with what the Court of Appeal has said, which is that this is an affront to the conscience of the court.
Q3 Chair: The Court of Appeal relied upon a test, in effect, of whether Horizon was essential to the prosecution case. This is going well beyond that, isn’t it? What is the justification for that?
Dr Craig: I think the fundamental justification is Blackstone’s principle, which is that it is better for 10 guilty people to go free than for one innocent to be punished. That is a cuddly principle. We all smile and think that is a nice idea, but now we have an actual example where this systemic-level principle is absolutely applicable. It is not 10 to one. It is the other way round; it is one to 10. So I think it is an open and shut case really.
I actually think we should lean in and say, “It is a good thing that some guilty people are going to get away with this” because this is a systemic threat that the Post Office has posed. We have people in Parliament now questioning the judges’ role here. That needs to be squashed, quickly, because the judges have enough to do without second-guessing what the prosecution is up to in their cases. That is why we should actually lean in.
Q4 Chair: I think we have the drift of where you are coming from. What about you, Professor Chalmers?
Professor Chalmers: I also support the Bill. I was somewhat surprised, in reading it initially, at the mechanism that convictions will be quashed immediately on Royal Assent, because one concern that that raises is that the public record is, by definition, no longer accurate—there is a group of convictions recorded as such but where the record cannot be relied upon.
That is remedied, in part, by the mechanism whereby the Secretary of State is to identify convictions that should be removed from the records, but that exercise will not be comprehensive. It is not the case that if a conviction is not identified as being quashed, it therefore stands. It does, I think, create an unprecedented situation where there are convictions that are on the public record that we are not to rely upon, but without a comprehensive exercise to identify which ones these are.
Q5 Chair: And Mr Rozenberg?
Joshua Rozenberg: On Professor Chalmers’ point, the point at which this comes into effect is crucial because, as he says, it will be for the Secretary of State to send a message to the courts to say, “You must treat this conviction as an acquittal and pass this on to the criminal records people, just as you would with anybody acquitted on appeal.” He is absolutely right: when the Act takes effect, the records will be inaccurate and we will not know for a fact who this legislation applies to.
I think I agree with Robert Craig about the general point, which is that this is, as the Government says, the “least worst option”. Their concern about allowing this to go through the courts in the normal way is that a number of people simply will not apply, and if they do apply, the cases will take a long time, whereas the Government’s position, as you know, is that this will clear everything up. The Government intends this to become law by July, and when it becomes law, those people will be acquitted by law. Of course, that includes people who have died in the meantime.
Q6 Chair: I understand that point. It has been suggested, and some evidence has been given to our Committee to suggest, that the Court of Appeal could fast-track these cases and that could be done much more quickly than usual. You are a very experienced commentator on these matters, Joshua. Is it realistic that that could be done by July?
Joshua Rozenberg: The Secretary of State, Alex Chalk, is sceptical. He thinks that cases would be adjourned and that the courts would have to accept those adjournments. Some would be done by July, but it really depends on what approach the prosecutor takes. If the prosecutor—generally speaking, the Post Office, but it might be the Crown Prosecution Service, and we have not talked about the Department for Work and Pensions yet—accepts that the conviction should be quashed, it will be quashed and it can be done very quickly. The courts are very proud of the fact that they have fast-tracked cases through in those circumstances.
What we are concerned about are the cases where the prosecutor does not accept that those people should be cleared—there may not be many of those—or, above all, the cases where people simply do not want anything more to do with the criminal justice system and are not prepared to allow their names to go forward and appeal.
There is also the advantage, from their point of view, that it will not be necessary for people to tell the world that they were convicted 15 or 20 years ago and have now been cleared—their cases may have been forgotten about by everybody they knew then. This will all be private in the sense that they will have access to the criminal records, and they will be able to show anybody who needs to know that they have been cleared, but the whole publicity surrounding them will not be brought up again by the fact that their case will come before the courts and they will be named in court. Some people may want that; others may not.
Q7 Chair: I do not know—as a journalist, you may have been able to look at this in more detail than some of our academic witnesses—whether anybody has been able to quantify how many people that might be. You make a fair point: the Secretary of State has said that a lot of people are not engaging. That will be right, but I am not sure if anyone has been able to put a figure on what that is.
Joshua Rozenberg: I agree. I think the only information we have is from the Criminal Cases Review Commission, which has been advertising because it certainly hasn’t had as many people coming forward as were involved in the Bates litigation.
Dr Craig: The Horizon compensation advisory board, with Lord Arbuthnot, Chris Hodges and various people, recently stated that the Post Office say that they are duty-bound to oppose something like 330 of these appeals, which means they still do not get it.
The reason is that they seem to think that they are private litigators. They think they have to fight. They actually think they are going to be in contempt of court if they do not fight. In other words, they are not thinking like public prosecutors. This is three months ago, so they still do not get it. That is another reason, I think, for pursuing this approach.
Dr Quirk: I have one slight concern with almost forcing an acquittal on people. When we looked at previous systemic miscarriages of justice, such as the West Midlands serious crime squad, there were people who had been wrongly convicted who did not want to go back to that issue because they had, for example, a new partner they had not told. I appreciate the point that it is not made public, but there may be personal ramifications.
Chair: I understand that.
Q8 James Daly: I’m sorry; this is a very obvious question. In the Bill, the start date for convictions is 23 September 1996. Could you confirm why it is 23 September, not the 22nd?
Dr Craig: There was a pilot programme that ran out, so that date could capture some people whose situation was before the main roll‑out.
Q9 James Daly: There were obviously lots of Post Office prosecutions prior to that date, but is the logic that none of those involved the Horizon scheme?
Dr Craig: That is the idea.
Q10 Chair: We are in a situation where Parliament, without a Division, passed the Bill on Second Reading. Whatever we think about the principle of the Bill, it has got this far, and we can debate its merits one way or the other, but is the Bill actually going to do the job adequately?
For example, clause 2 sets out five conditions that must be satisfied before the conviction is quashed. Are those conditions sufficiently tailored to mete out justice to rectify the wrong that everybody accepts has been done in this case? Do you think they are adequate, Dr Quirk? Are there any bits that you think could be improved?
Dr Quirk: I do. I wondered, around section 3, whether we needed to look at magistrates court cases. There is also a case that the Criminal Cases Review Commission has just referred—it was not sure if it was able to or not. It was a magistrates court plea where the defendant has died. There is not really a mechanism for referring those cases, so I think they have referred it anyway, as a punt, but it might be worth adding something into the legislation so that they have that power in future cases.
Q11 Chair: We all know that there is a mechanism where the Criminal Cases Review Commission can refer the convictions of people who are deceased.
Dr Quirk: Only to the Court of Appeal.
Chair: Only to the Court of Appeal but you cannot do it in the magistrates; that is a gap.
Dr Quirk: Yes, so that might be worth a statutory amendment.
Q12 Chair: That is very helpful. Are there any other observations on the conditions in clause 2?
Joshua Rozenberg: They go much further than the Hamilton case, don’t they?
Chair: Yes, they do.
Joshua Rozenberg: They are much broader and you can see the Government’s intention. The Government do not want any officials in the Department for Business and Trade to have to consider whether a specific case referred to it comes within what will then be the Act or not, so they have tried to draft this very broadly. But, of course, there is still the question about whether prosecutions by the Department for Work and Pensions should be brought into scope.
Q13 Chair: That is a fair point. As you say, the test in Hamilton was really whether or not the Horizon data was essential to the prosecution, and this is more broad. Parliament is entitled, if it wishes, to go more broadly than the Court of Appeal’s ratio.
Professor Chalmers: One difficulty that will arise in some cases is the sheer paucity of information about whether Horizon was or was not essential. For example, one of the appeals—in Ambrose, for example—was allowed solely on the basis that there was a line in the internal spreadsheets in the Post Office saying that this was an audit case. Often with these cases, there simply aren’t the records held any more, and they are certainly not comprehensive at this point. Therefore, requiring a demonstration that the evidence was essential—in that category—will be problematic.
Q14 Chair: The explanatory notes around this section say, “The criteria set out in the Bill…are intended to be unambiguous”. Are they unambiguous, from your point of view?
Joshua Rozenberg: There are bound to be borderline cases, aren’t there? There are bound to be cases where officials are going to have to take a decision and make a recommendation to the Secretary of State, who has the power to give effect to what Parliament will have decided. If the Secretary of State is not persuaded to inform the trial court, the conviction will not be publicly quashed.
Q15 Chair: So the suggestion that this is intended to be done without anybody having to apply judgment cannot really be right, can it? Somebody is going to have to apply some judgment somewhere.
Dr Craig: But the beauty of the time limit is that it is about as clear as you are going to get, which I think is a good thing.
Q16 Chair: Any other thoughts around ambiguity, Dr Quirk?
Dr Quirk: I just wondered why there is a reference to the compensation scheme under the Criminal Justice Act 1988, when these cases were all being dealt with under separate compensation schemes?
Chair: That is not clear, as far as we have seen so far. That is helpful.
Q17 Dr Mullan: Just furthering the discussion of the ambiguity element—as you’ve said, if you make it essential, that is quite challenging, but in the other direction, given that someone will have to go through the cases just to check the bare bones, do you think it would be impossible to have somewhere that is between essential and potentially no reference to Horizon whatsoever in a conviction, where you could at least say that it is mentioned, present, part of the case in some manner? Or would you agree with the Government’s position that even that would be too complicated to do and not feasible?
Professor Chalmers: I think I would agree with the Government’s position there. I’m not in a position to speak to the detail of this, but I would have thought most cases would involve some mention of Horizon, in the sense that this was the primary means of keeping records.
Dr Mullan: Just to give you a hypothetical example to aid the discussion. If you were seen taking money out of a till, Horizon might literally have no bearing on a case in any way, shape, or form—it shouldn’t be mentioned anywhere. That might be an example.
Professor Chalmers: It might be an example, but I would have thought in that circumstance—I may well be wrong—that there would be some mention in the papers that were available of the records on Horizon because that was the record-keeping system. I can’t clearly identify any sort of test that would allow you to distinguish cases that you would quash from those that you wouldn’t.
Q18 Dr Mullan: Does anyone else feel differently?
Dr Craig: I don’t feel differently; I just think that there’s a bigger picture, which is that even those ones need to be quashed, because you have got to send a message to the Post Office and a message to the future. The actions of the Post Office over the last 20 years is going to be used as a case study across every Westminster system forever—that’s the reputation that this generation have imposed on the Post Office.
Dr Quirk: I disagree, but I think it possibly wouldn’t be an issue because if they are taking money out of the till, they are not doing so as part of their functions as a postmaster, so I think you could exclude it that way.
Q19 Chair: You have raised an interesting thought. If you’re behind the till, in consequence of your work as a postmaster, aren’t you then—if you then pocket the cash—carrying that out in the course of your employment as a postmaster?
Joshua Rozenberg: I think the answer is yes to that, because Condition C is that “at the time of the alleged offence, the person…was carrying on a post office business, or…was working in a post office”. So even if they were taking cash out of the till, they would still be doing that as a postmaster, rather than as a walk-in thief.
Dr Quirk: Not if they were stealing it, though.
Q20 Chair: You’re saying that the moment they steal it, they cease to be active in the course of their employment, in effect?
Dr Quirk: I think there is a difference between taking money out of the till to give somebody their change, and taking money out of the till—you’re not doing that as a postmaster.
Q21 Joanna Cherry: Doesn’t this discussion just illustrate that there is ambiguity? It is a bit of an old chestnut, isn’t it—if you do something criminal in the course of your employment, whether you are doing it in the course of your employment, or whether it’s so extraordinary that it is removed from the course of your employment. That is a debate that has gone on in all sorts of spheres of law for quite a long time. I’m afraid I’m not quite sure what the outcome is on it.
Professor Chalmers: I don’t think that is the Condition C test, though. I think the test is, were you employed by or working in a post office, not whether in the course of your employment—
Chair: Exactly.
Joanna Cherry: I’m thinking about D, where the alleged offence was committed in connection with running or working for the post office business—that’s where the potential ambiguity is.
Professor Chalmers: I think “in connection” is rather different from course—I see the point, but I think it is rather broader than course of employment.
Chair: It’s clear that it needs to be a broader phrase.
Joanna Cherry: Is “in connection” broader or narrower than in the course of employment? I think it is a bit ambiguous.
Chair: Under different circumstances, it would be interesting if it was tested in court, but I’m not sure if it—
Dr Mullan: The civil servants are going to have to do something about distinguishing them in some way—it’s not a complete blanket.
Chair: The Lord Chancellor at one time talked in terms of an approach which was, it is all “the fruit of the poisonous tree”. Would it be simpler and easier to have adopted that approach—that it is all tainted if it has come via the Post Office’s prosecutor?
Q22 James Daly: That is why I asked the question about 23 September 1996, because if it comes down to a question of the reputation of the prosecutor, then every single prosecution that the Post Office has ever brought under any circumstances should be quashed, on that logic.
Dr Craig: If you look at the numbers jumping at the time that Horizon was rolled out, there was a step change. That is a really easy break point, when you can go, “Before that we can’t be sure, so we are going to let that go. But from the point that this system came in, the culture curdled, and it became a different kind of beast.” That is the point at which you should move forward.
Q23 James Daly: If you had the misfortune of being in court on 17 September 1996, having done exactly the same thing as someone who was there on 30 September 1996, are you comfortable that those two people should be treated differently?
Dr Craig: We have to draw a line somewhere and I would draw the line there because that is when their culture changed. Internally, that is when the curdling, as I call it, happened—a curdling of the culture, whereby it became about malicious prosecutions. That is when it started, and I don’t think we have got evidence that there was that culture before. That is sufficient for me to draw the line there.
Dr Quirk: This is one of the difficulties with the status for the postmasters as well. I understand the sentiment of just clearing everything out and saying all these convictions were wrong and so be it if some guilty people get a bonus, but I think there is a danger that that then taints the acquittal of all the postmasters who quite rightly say, “I was completely innocent of this.” So, despite the good intentions of the Act, I think there is a danger of devaluing what is being done for individual postmasters here.
Q24 James Daly: One of the things that this Committee deals with all the time is things like IPP. So, if we talk about retrospective legislation, the danger always is that people are treated differently.
As far as I can see, the only explanation, which I am afraid to say, Dr Craig, is not the most convincing explanation, is that as a result of a computer system being installed, all these cases must be treated differently to all the cases that came before. Retrospective legislation, on the basis of the logic you have put forward, should apply to every single case the Post Office has ever put forward. Surely it has to?
Dr Craig: There are two categories of abuse of process. Category 1 is when there is a relationship horizontally between the prosecutor and the defendant that is an abuse and needs to be stayed. This has been found by Lord Justice Holroyde in Hamilton to be a category 2. That is an abuse of the conscience of the court. That becomes a systemic problem, and when there is a systemic problem, you need a systemic solution, and that is when principles like Blackstone’s principle kick in, when you have to say, “This is all wrong.”
You have to send a message that all of these prosecutions are wrong, because of this prosecutor, and that message needs to go forward in the future as well. There is a systemic difference, and that systemic moment is when the prosecution stops acting with an overriding duty to the court, and starts being about horizontal attacks on people who are innocent.
Dr Quirk: I think there are dangers with that. When the Court of Appeal has looked previously at systemic wrongs, such as serious crime squad cases, it has not just blanketly quashed everything. I think there are also dangers, as you said, with the retroactivity of it.
You could quite easily see a scenario now where people who were convicted in Northern Ireland, under emergency provisions legislation that have subsequently fallen foul, now say, “Why shouldn’t my convictions be looked at too?” Or people who have received pardons, the Alan Turing legislation, or the first world war cases, can say, “Why are we being treated differently? This was a systemic abuse of our rights too.” So I think there are dangers, despite the Government having said that this is not intended to establish a precedent, that it would be very difficult to argue against it.
Chair: Seeing there are no other observations on that point, I will move to Ms Hopkins.
Q25 Rachel Hopkins: I am just going back to clause 4, although I know we touched on it slightly. Clause 4 requires the Secretary of State to take all reasonable steps to identify convictions quashed by clause 1. The Secretary of State must then notify the relevant court of these convictions and, most importantly, must then notify the person, or person’s representatives, that the conviction has been quashed. Can you elaborate on any potential practical difficulties that you can see with that approach for the Secretary of State, in taking steps like these?
Professor Chalmers: I suppose it is simply, initially, the state of the records that are available for this. Obviously, this is not directly relevant here, but we know that in Scotland, for instance with the Lord Advocate, essentially all the cases in this period are now past the period for routine destruction of case files.
Now, they have been able to get material in Scottish cases from the Post Office, and the Post Office does seem to have kept things longer; whether it kept them systemically would be a different matter. Simply identifying the cases that are concerned and what the facts of those cases were, in so far as their relevance to the various conditions, is going to be challenging. I imagine that tracing the individuals concerned in some cases will be very difficult as well.
Joshua Rozenberg: I am sure that is right. I think this is the most difficult part of the Bill—deciding which cases are covered. In one sense, it may not matter too much because the Government can say, “The people who are covered by the Bill are cleared whether they do anything about it or not.” If they want to prove it, if they want to get a Disclosure and Barring Service declaration, then they go through the process of telling the Secretary of State. And of course they can make representations, and the Government have to listen to any representations made on behalf of anybody by anybody in reaching their decision. Maybe it could even be challenged by judicial review if the Secretary of State declines to find that somebody comes within the categories.
But it is very tricky and it is going to be imperfect. I don’t think anybody is suggesting that all the cases which are covered by what will be the Act will actually be referred to the various courts. It is quite messy. But, on the other hand, unless you are actually going to publish a list of everybody who has been cleared—I thought a statutory instrument was one way the Government might go through it—you have got to have some way of establishing who actually comes within this legislation, given that nobody is actually going to be named in the Act or any secondary legislation.
Dr Quirk: I wonder whether a possible compromise might be to ask the Criminal Cases Review Commission to do it, rather than the Secretary of State, as it would then slightly distance the referral mechanism from the Executive.
Q26 Rachel Hopkins: Can I press ahead with a couple of those nuances that have been picked up already? Talking about who will be responsible for administering the scheme—your suggestion is that the CCRC take that back—if there were disputes, and the point was raised about whether a conviction has actually been quashed, how should the Secretary of State handle that? There was a suggestion there about JR. Does anyone have any views about that sort of dispute?
Joshua Rozenberg: It is really a question of what guidance officials are given by the Secretary of State, isn’t it? Do they err on the side of including people, as Robert Craig argues, or do they try and save money, which is what every Department would normally want to do? I think it is reasonable to expect the Government to tell us what sort of guidance will be applied when officials are going through all these cases.
Q27 Rachel Hopkins: A final point: we talked about whether, in practice, those who have been affected by the Horizon scandal could just consider their conviction to be quashed. They cannot consider their conviction to be quashed until they receive that notification by the Secretary of State.
Joshua Rozenberg: That is not right. They can consider their conviction to be quashed as soon as the Act achieves Royal Assent; the problem is proving it. They can’t prove it without some notification from the Secretary of State. But yes, they can celebrate, on this day in July, that their conviction has been quashed, because they will be confident that they come within the wording of what will then be the Act. But how you persuade others is the problem that we are talking about.
Q28 Chair: So what we need is some process whereby someone can prove it, let’s say, to the visa department at the American embassy, if you wanted to go there, or to a potential employer that you are one of the people whose conviction has been quashed by this. We don’t seem to have that mechanism spelt out at the moment, do we?
Professor Chalmers: I think we have that mechanism in the sense that once the Secretary of State has asked for the information to be deleted from the records, as it were, a criminal record check will come up without that information. That, I think, is the mechanism. But people may, of course, only run up against the need to actually request it be invoked, at the point when they are being denied a visa.
It may be worth noting as well that there is some prior experience in operating this sort of system in a slightly different way under the Protection of Freedoms Act 2012, where requests can be made to have a conviction disregarded for historical same-sex activity. So there is experience within the Government in processing applications. The difference there is that there had to be applications—that was not automatic.
Chair: I understand that.
Dr Craig: If you wanted an example from the beginning, of an Act of Parliament doing something very similar to this, because it was treated as if, that exact Act is a good precedent.
Joshua Rozenberg: May I just mention clause 4(4)—“Where the Secretary of State identifies that a person’s conviction has been quashed…the Secretary of State…must take all reasonable steps to notify the person”? So you would get a letter from the Government saying that your conviction has been quashed.
Q29 Chair: You would show that to the person, perhaps.
Joshua Rozenberg: Yes.
Dr Quirk: Presumably that deals only with people who have not got in touch with the Secretary of State. Those who are involved in the process at the moment will have given their details beforehand, so they will be in a position to get letters quite quickly.
Q30 Dr Mullan: To jump back slightly to clauses 1 and 3, about those who have—we might expect those who felt strongly and had a good case to do so—gone to the Court of Appeal, and the way in which this Act would exclude them, I wonder whether you think that is fair and justifiable?
Dr Quirk: If we are taking an expansive approach, it seems unfair to exclude them. The Court of Appeal might have been applying different criteria at that stage—the full extent of the scandal had not come to light.
Q31 Dr Mullan: Their test was that Horizon was essential, and this test is just that the person worked in a post office when Horizon was operating—a vastly different test. Does anyone think that it is reasonable?
Professor Chalmers: I obviously think it is unreasonable. I can certainly see the argument for cases from Hamilton onwards, but if someone had appealed at the time when the problems with Horizon were not documented, it seems to me to be entirely unfair to exclude them from the Act on that basis.
Dr Craig: The CCRC has to assess whether to refer, and those people who didn’t pass that threshold to be referred are going to get a quashed conviction, but the people who did get referred are not—which seems to be a bit unfair on those people who were close to the line and won’t get it, while the people who didn’t make that low bar are going to get quashed.
Q32 Dr Mullan: Does anyone want to play devil’s advocate for the Government? What are they trying to achieve in doing this?
Joshua Rozenberg: They are trying not to trespass on the territory of the courts. They are trying not to tread on the judges’ toes any more than is necessary. They have taken a policy decision that where a court has looked at a specific case and decided that there was dishonesty—that there is evidence of dishonesty apart from Horizon—they should not interfere. But that is a policy decision and that may be wrong, given the broad thrust of the legislation.
Dr Craig: The reason it is wrong is that it is a contested view of the separation of powers to think that we have a pure separation of powers in this country—that we have institutional silos and there should not be overlap. But that is not our system; our system is partial, and all about checks and balances. This is a paradigm example of Parliament acting correctly under our system to step in to fix a mistake in the common law. The fact that it should fix it in as generic and broad a way as possible is because legislation is supposed to be that way. To that extent, it is entirely reasonable, but the idea that this is a breach of the separation of powers is not one that I share.
Q33 Joanna Cherry: The Bill will only quash convictions handed down in the courts of England and Wales. If you were unfortunate enough to be convicted in Scotland or Northern Ireland, your conviction will not be quashed by the Bill. My question is: have the UK Government taken the right approach by not extending the Bill to Scotland and Northern Ireland? I will start with Professor Chalmers, if I may.
Professor Chalmers: My view would be no, simply from a practical point of view. Given that the Scottish Government has indicated that it intends to mirror this legislation, it is very difficult to see how the Scottish Government could make different policy choices to any significant extent from those set down in the Bill.
Given the imperative to quash convictions as quickly as possible, which underpins this, requiring the Scottish Government to wait to see how the legislation passes through Parliament and how it is amended so as to try and mirror it later on, seems to help no one. I can see the argument, which I think has been made in the Chamber, that the Scottish Parliament can pass legislation fairly quickly if it has to, but I would have thought it would be better to ensure that there is proper scrutiny of the mechanism in the Bill for doing that, if it was not being forced into making the policy decisions in a single day, which of course it can do if it has to.
Q34 Joanna Cherry: You will be aware that there has been a lot of lively discussion in legal circles in Scotland about alternative ways of approaching this. I think it is fair to say that when the Lord Advocate made her statement to the Scottish Parliament, she favoured a more separation-of-powers approach than perhaps politicians have decided to go down—I take on board everything that Dr Craig says about that.
What I am interested in is another proposal put forward by somebody, which you are probably aware of. There has been a letter to Scottish Legal News from a retired sheriff, Kevin Drummond KC, who said that he felt that this matter could be solved tomorrow—not just by the Crown Office and Procurator Fiscal Service in Scotland, but by the CPS in England—by each agency “bringing to their respective criminal appeal courts a list of convictions with case references and informing the court that investigations have revealed these convictions to be flawed and inviting the court to overturn the convictions. Such a step would have the additional advantage of respecting the separation of powers.”
I am not an English lawyer, so I am not sure how that would work for the CPS, but I wondered whether he was talking about the Lord Advocate inviting the High Court of Justiciary in Scotland to exercise its nobile officium—its equitable power to right wrongs. Do you think that that was what he was getting at? I wondered what you thought of that proposal.
Professor Chalmers: I think what he was getting at, although I am not entirely certain, was the ability of the Crown to essentially indicate that it does not oppose an appeal being granted. The limitation of that is that it has to operate in one of two ways. Either it happens after investigation, which is not going to be immediate; the Lord Advocate would require a considerable amount of time, I think, to make a judgment as to whether the convictions were ones that could be sustained. Or it happens on a basis that is not related to the individual cases, and the Lord Advocate simply says, “Here are the cases of conviction that resulted from reports from the Post Office; please quash them all.”
I am not sure the Court would think it had the power to do that. The problem beyond that, which goes back to a point Dr Quirk made earlier, is that it may undermine the quashing of convictions if it is believed that there has been no consideration of the merits and no criteria applied beyond it being a Post Office case.
Q35 Joanna Cherry: You said earlier that the Crown may not actually have access to the relevant paperwork, so it may not be able to identify the cases.
Professor Chalmers: Yes. The Lord Advocate has said that the Crown Office has had to obtain information from the Post Office to establish what has happened in many cases. What I do not know is whether it is always possible to obtain that information or how comprehensive it is.
Q36 Joanna Cherry: I wonder what our other witnesses think about the decision to restrict the Bill’s application to England and Wales.
Dr Craig: I do not have much to add, except that—purely as a non-Scottish lawyer—my understanding is that the Post Office did not bring the prosecutions in Scotland. That is an interesting difference, for me, given what I have said today.
Dr Quirk: I think there may be difficulties, partly logical difficulties, like that Northern Ireland comes under the remit of the Criminal Cases Review Commission, whereas there is an argument that Scotland is so separate that it should be dealt with differently. I think smaller jurisdictions are probably able to deal with the caseload more quickly.
In terms of getting the case back into the Court of Appeal, in England it would more be a CCRC referral, rather than the Crown Prosecution Service. I am not sure of the Scottish distinctions. Again, particularly with Northern Ireland, I think there might be problems bringing up these ideas around the retroactive quashing of convictions, particularly following things like the legacy Act, which has precluded so many other ways of dealing with conflict-related cases. It might be putting them in quite a difficult position.
Q37 Joanna Cherry: That is a very interesting point. Joshua?
Joshua Rozenberg: I do not want to stick up too much for the UK Government, but I would have thought it reasonable for the UK Government to expect that the Scottish Government would want to handle this themselves in their own Parliament. It is slightly unusual for Scotland to be saying to the UK Government, “Will you legislate for us?” But if that is what Scotland wishes the UK Government to do, you would have thought the UK Government would be happy to amend the Bill in that way.
Q38 Joanna Cherry: May I quickly go back to Professor Chalmers? The point made by Dr Craig—absolutely correctly, of course—was that in Scotland these were not private prosecutions; they were pursued by the Crown. Do you think that that makes any difference to the legislative approach? Or, rather, should it?
Professor Chalmers: I think it shouldn’t, because what the Scottish experience shows is that the problem was not simply one of the Post Office as prosecutor but one of the Post Office as investigator. For some time, the Crown Office was relying on what it had been told; it regarded the Post Office as one of the longest-standing specialist reporting agencies.
I think there is a cautionary tale here. The suggestion has been made that what this shows is that there is a problem with the English system of private prosecution. There may or may not be such a problem; but it would appear from the Scottish experience that requiring prosecutions to go through another agency does not solve the problem when the investigating agency is going round its task in such a poor way.
Joanna Cherry: A very interesting point—thank you.
Q39 Chris Stephens: Surely the best argument is the Criminal Justice Bill that is now going through Parliament, in which the Scottish Parliament was given legislative consent for the parts of the Criminal Justice Bill down here that apply to Scotland.
Would that not be a better way of addressing the issue for people in Scotland, given that in the end the issue is to ensure that people are getting compensation at the same time and that people in Scotland and Northern Ireland do not have a delay in getting that compensation when people in other parts of the UK are receiving it?
Professor Chalmers: Although I have not seen recent figures, I don’t think that legislative consent motions are that unusual; I would not regard it as exceptional for the Scottish Government to consent in these circumstances. The practical reality is that I cannot see that the Scottish Government have much room for manoeuvre on the policy here.
Given how this links into a UK compensation scheme and not a devolved scheme, it would be very odd if the Scottish Government were to say, “We want to do something different in terms of the scope of convictions”—though of course, if they did say that, that would be a different matter. However, in circumstances where they are saying “We want to mirror what is happening, but therefore we have to delay it, despite the imperative to try to get this done quickly”, that seems to me to be problematic.
It has been suggested in the Chamber that one reason for asking the Scottish Parliament to do this is that there has to be a level of scrutiny of the Lord Advocate and the Scottish prosecution system. But at the same time, it was being suggested that the Scottish Parliament could legislate quickly—three days was mentioned. Well, you can’t have both: you can have either the emergency legislation or the detailed scrutiny. Either of those are valid arguments, but they do not work in conjunction.
Q40 Chris Stephens: Scrutiny of a prosecution could happen after a Bill has passed anyway, though; that is another issue. The issue is to quash convictions to get compensation to people, is it not?
Professor Chalmers: Absolutely.
Q41 Chris Stephens: You might be aware that the Scottish Criminal Cases Review Commission has been actively trying to contact people to appeal, but had not heard from the majority—although more than in England. Does that raise a potential concern that the Post Office may not co-operate fully with the Crown Office and the Scottish Government, particularly given the reticence and intransigence we have seen over the entirety of this situation?
Professor Chalmers: It may do. It is fair to know what is in the Court of Appeal judgments. Unusually, perhaps, there have been quite complimentary words said about the Post Office and the Post Office’s lawyers in terms of bringing forward relevant information and making concessions where appropriate. I am aware that that is not the experience replicated across this whole sphere, but in terms of dealing with criminal appeals, that is the area where those comments were made.
I suspect that, more generally, there is just considerable difficulty in contacting people who may wish to have moved on, long after the event, and who may not readily be contactable. There has been a poor decision taken with this legislation that something should be done about the fact that people do not want to come forward—and that their convictions should be quashed, whether they are asking for that to happen or not.
Q42 Chris Stephens: Does that also impact upon family members, potentially? I am thinking about people who are no longer alive.
Professor Chalmers: Absolutely, yes.
Q43 Joanna Cherry: May I come back, Professor Chalmers? I want to understand this properly, because you have made a very important point there. I think you are really saying that, because this Bill links into a UK-wide compensation scheme in relation to a UK-wide problem, which is the problem that arose with malfeasance in the Post Office, then the Scottish Government are going to have to have almost identical legislation to fit into that. So it makes sense for there to be UK-wide legislation with a legislative consent motion; which, as you have said, is not necessarily unusual.
Professor Chalmers: Absolutely, yes.
Q44 Joanna Cherry: Is it fair to say that, from time to time, people like myself get terribly excited about legislative consent, where it has been withheld or ignored—in actual fact, a huge amount of co-operative work went on between the UK and Scottish Governments where legislative consent motions were made and people like me do not get excited about it? Are you saying that this is really just a very practical example of where this legislation is designed to right a UK-wide wrong and to feed into a UK-wide compensation, so it makes sense to have UK-wide legislation?
Professor Chalmers: Yes. I agree with the point about this being a matter of normal co-operation. My recollection at the time of the Scotland Act was that the mechanism of legislative consent motions was seen as something a bit exceptional. Over time it was a practical solution to co-operating and ensuring the smooth running of the process, and not in most cases contentious.
Joanna Cherry: Thanks. That is very clear.
Dr Quirk: Just briefly, I wondered whether one way round this might be uncoupling the compensation from the quashing of the conviction. If we are saying that everybody who was convicted is eligible for compensation, that could go ahead by whatever mechanism.
Chair: Get the money out and deal with the convictions afterwards—I understand. Thanks.
Q45 Edward Timpson: Can we go back to the exceptional nature of what the Government Bill is proposing? Dr Craig, I was particularly interested in what you quite effusively said about the approach being taken. You cited in evidence of this approach that this is not a new departure for Parliament in overturning a judicial decision. You cited the Burmah Oil case when there was compensation for the damage caused by British soldiers on retreating and that led to the War Damage Act 1965. That was retrospective, although it was not a criminal case.
Bearing that in mind, how high a bar do we think needs to be reached to make this exceptional, given that 71 convictions have already been quashed by the Court of Appeal and the fact that the Lady Chief Justice, in the most recent case of Falcon in February, said, “The court has been and remains committed to the efficient and swift dispatch of Horizon appeals”?
Dr Craig: In terms of a precedent, Chitty says: “A pardon may be effectually granted either by Act of Parliament, or under the great seal”. So in terms of precedent, that is not even a controversial position.
Dr Quirk: That is a pardon.
Dr Craig: Yes, but statutory pardons, if you look at Chitty, are indistinguishable from Acts of Parliament in their effect. I do not think we should get too hung up about whether or not a conviction is technically removed or not; I think that is a narrow distinction that does not really help us.
Chitty says, “Generally speaking, it puts him in the same situation as that in which he stood before…and…so far makes him a new man as to entitle him…to bring an action against any one who scandalizes him in respect of the crime pardoned.” So I do not think we want to get too hung up on the narrow distinctions between whether it is a technical quashing or a pardon in this situation.
In any event, “The king’s right to pardon and remit the consequences of a violation of the law”, says Chitty, “is confined to cases in which the prosecution is carried on in his majesty’s name”, so you cannot even pardon these because they are not brought by the King. So the only route open to these people is—
Q46 Chair: Is that last point right? At the end of the day are we looking at a private prosecutor or not? It appears on the indictment as the King or Queen against X or Y. All prosecutions are brought in the name of the monarch regardless of whether it is the Crown Prosecution Service or a private prosecutor. Is that right?
Dr Craig: I am not sure what the actual indictment said, but that is a very good point, Sir Bob. But Chitty is clear that if it is a private prosecution it is not open to be pardoned, which means that before the CCRC got the power to do this, your only remedy was to go to the Court of Appeal again, where the burden of proof is reversed. If you have not got evidence to undermine it because it has been destroyed, the only remedy is an Act of Parliament.
Q47 James Daly: For the record, can you tell us who Chitty is?
Dr Craig: I beg your pardon. Chitty is a treatise on prerogatives from 1820, so it is hot off the press.
Q48 James Daly: Why were you quoting from him?
Dr Craig: Because he is the leading writer on prerogatives and he has a section on pardons.
Dr Quirk: I am not sure that is completely right. There was the Michael Shields case; he was a Liverpool fan convicted in Bulgaria. He was convicted in a foreign jurisdiction.
Q49 Chair: Was it dealt with by our Parliament?
Dr Quirk: May I check?
Professor Chalmers: It might be worth noting as well, to answer the point you asked about earlier, that it was noted in the Hamilton appeal that the prosecutions were all brought in the name of the Crown, although they were private prosecutions.
Joshua Rozenberg: Can I pick up on a couple of points? I do not think we should be too hung up on the idea of this legislation being a precedent. Yes, in political terms, once this is through, as Dr Quirk says, others will say, “Me too, please”. But it is not a precedent in the legal sense.
The very fact that this legislation is before Parliament for the first time shows us that you do not need a precedent to actually do something for the first time. The fact that you have done it before does not mean you have to do it again.
In terms of Parliament overturning decisions of the courts, we have much more recent and current examples of that than Burmah Oil. I am not just thinking of the Safety of Rwanda Bill, which says the courts must conclusively treat Rwanda as a safe country, which is not what the Supreme Court found last November; I am thinking more of the Litigation Funding Agreements (Enforceability) Bill, which was given a Second Reading by the House of Lords yesterday. As the Minister said, it restores the law to the position it was before the Supreme Court decided the PACCAR case last July. So we do see examples currently of Parliament overturning decisions of the courts, and maybe this is just another one of them.
Q50 Edward Timpson: Can I come back to that question? It is about understanding the consequences of parliamentary intervention in a judicial decision and the fact that although taking this route, albeit in the exceptional circumstances that we all know about, may not have a legal precedent that is consequential on that decision, it may encourage others to use a parliamentary remedy rather than a judicial remedy in the future. Is that something that we should factor in and potentially be concerned about?
Robert Craig: I think it is a good thing. It is a political constitution. We want to reduce people’s desire to go rushing off to the court. Take your remedy to Parliament. In a political constitution, this is to be encouraged. There is an idea that it is somehow a difficulty or a bad thing, but there is going to be more political discourse and more political applications to MPs to fix problems. Good!
Q51 Edward Timpson: Does Joshua want to come back? His face suggests he wants to.
Joshua Rozenberg: I don’t really know what to think about that. I can see the arguments on both sides. I don’t see why Parliament shouldn’t be flexible, just as the courts very often say, “This is not a matter for us—it is a matter for Parliament.” I do think, to some extent—I agree with Robert Craig—that Parliament should be encouraged to deal with problems as they come along and if Parliament thinks the courts have got it wrong, Parliament should be there to put it right.
Hannah Quirk: I profoundly disagree. If we look at the reasons for the separation of powers, we should not have Parliament acting to convict individuals or to direct that they shouldn’t be acquitted. The rule of law needs to apply to everybody and if you have a situation whereby Parliament can suddenly say, “Oh but not to you—we are going to quash those convictions,” that is fundamentally deeply dangerous in a democracy and to public confidence in the law.
We also don’t want to have it reliant on public opinion. I think everybody has the utmost sympathy for the postmasters. But what about schoolteachers or scoutmasters who have been wrongly convicted of historical sex abuse cases? That is a very difficult case to make publicly, and it would be more difficult for politicians to associate themselves with. The whole point of the law is that it is not a popularity contest. The law applies to everybody and is applied by the courts in a disinterested way.
Robert Craig: I am not saying that this should be done willy-nilly. The qualifying criteria might be that it is the greatest miscarriage of justice in the history of the UK.
Chair: I am just conscious that we have another panel to get on to before we finish. I want to make sure that we cover any remaining issues.
Q52 Tahir Ali: The issue of precedent has been mentioned before. The explanatory notes to the Bill state that: “The approach to quashing convictions in the Bill does not set any constitutional precedent.” What precedent does the Bill set and why might it be dangerous?
Chair: We may have rehearsed much of this, but is there anything that you want to add?
Robert Craig: This is where I was going to mention Burmah Oil. Of course, there are the world war one soldiers—again, I take the point that there was a statutory pardon. These are examples, so I don’t think it does set a precedent because Parliament has been able to do this for about 1,000 years.
Hannah Quirk: It sets a precedent because it has happened. I think Roy Jenkins gave a pardon to Timothy Evans after he had been hanged and explicitly said, “I cannot conceive of another situation, the facts are so unique this will never happen again.” We have had multiple cases.
Q53 James Daly: I think it was Professor Chalmers who made this point. At the start of this, the question of why the DWP cases were not included was considered. If it is a reputational issue with the prosecutor, then I can understand why that is the case. However, I think it was Professor Chalmers who said that it may well not be the prosecutor but the investigator of the facts that is the crucial matter here.
I wonder: if there was a police officer who was convicted of corruption, and it related to the investigation of a number of cases, why on earth would it not set the precedent that every single case—every single one—over potentially a 25-year career was tainted? Why would there not be a blanket precedent that meant that some people, who might have committed some very serious offences, would then walk out of prison?
Dr Craig: I’m there!
James Daly: You say you are there, but that is a very—
Dr Craig: I have said before that this is a systemic problem requiring a systemic solution, which is what an Act of Parliament is. Dealing with something that has undermined the court system is the problem, because one of the aspects of the rule of law is being entitled to have a fair trial with all of the evidence in front of the jury and the courts, and that has been prevented for decades.
Q54 James Daly: I understand that, but is what you are saying about the example I gave that the act of dishonesty in maybe one or two cases out of a 1,000-case career is sufficient for 998 convictions to be quashed?
Dr Craig: I see what you mean. I am not talking about individuals. I am talking about a culture that has developed in that prosecution office. That is the thing that needs to be confronted.
Dr Quirk: That is exactly the same as the West Midlands Serious Crimes Squad.
Q55 James Daly: That was the point I was going to make. There are numerous examples that we can show. There would be a lot of people on the basis of this precedent, who have committed the most serious offences and could have been convicted on the basis of good evidence, who would have their convictions quashed.
Dr Craig: That is why we have the CPS. It is the buffer between the investigator and the court.
Q56 James Daly: But you have been making the argument that Parliament should intervene, if it feels it is appropriate. Obviously, Parliament is sovereign, and therefore it can do what it wants. But I do not think it is correct to say that this does not set any precedents.
Professor Chalmers: I think the best answer to that is that Parliament could draw a distinction between different groups of cases and take into account the fact that there may be people in the circumstances you have described who are very dangerous offenders and potentially still imprisoned. Therefore, that would make it inappropriate to take a rough and ready approach that would involve consciously quashing convictions of people who might not be innocent.
Q57 James Daly: The other point I am making is that if it gets down to investigation, what you appear to be saying, Dr Craig, is that the dishonesty is the fact that the computer system exists. Forgive me, I may well be wrong on this, but there are cases whereby the investigatory process could have been completely honestly undertaken with good evidence. It seems to me to be a rather strange legal scenario where honest investigation, followed by a proper conviction, is tainted because of a computer system that was put into a post office but might have nothing to do with it.
Dr Craig: Absolutely. That is why Blackstone’s principle is quite painful and ugly. Everyone thinks it is a nice idea, but when it actually comes to the rubber meeting the road, it leads to extremely difficult situations such as this. That is why it is a systemic solution to a systemic problem. It is why it is incredibly rare. Even the Post Office, in its latest submission to Sir Wyn Williams, said that this was the greatest miscarriage of justice in the history of the UK. These are, I think, unique circumstances. That is why the solution of an Act of Parliament is the correct one, in my view.
Chair: We need to make a bit of progress. We will go to Dr Quirk, and then we will move on quickly to the remaining issues.
Dr Quirk: Very briefly, I think the case is exceptional in many ways, but the system is quite capable of dealing with it. We have got the Criminal Cases Review Commission, and we have a Court of Appeal that could process it. I am not persuaded that there need to be exceptional measures to overturn these convictions.
Q58 Chair: Somebody suggested you could triage, rather like with section 31 of the Criminal Appeal Act 1995.
Dr Quirk: It was done with the shaken baby cases after there was concern about women who had been wrongly convicted for killing their babies. I think it was the Solicitor General’s office that triaged all the cases, then those that were found to be of concern were sent to the CCRC for further investigation.
Q59 Dr Mullan: I want to move on to a slightly different area in terms of accountability for judiciary and the judicial system in this context. I know that others have volunteered an absolutely robust defence—I know that you did, Dr Craig—that this has nothing to do with the judicial system. I guess one of the arguments on that is that it was ultimately the Court of Appeal that picked that, therefore there is nothing to see here. Do any of you have a different view?
For example, I looked at some of the previous Law Commission work around expert evidence. I will read from one of their findings: “In the absence of a clear legal test to ensure the reliability of expert evidence, advocates do not always cross-examine experts effectively to reveal potential flaws in the experts’ methodology, data and reasoning.”
It is about whether you could draw a direct parallel between that finding and potentially some of what has happened in these cases. Although the Court of Appeal finding it ultimately is great, would it have been even better if the lower courts had managed to understand that? Does it show the necessary humility for the judicial system, with its individuals or the system as a whole, to say, “We have nothing to learn from this”?
Dr Quirk: I have always been very critical of the Court of Appeal and its humility in relation to miscarriages of justice. I am not sure that this is perhaps the best example for criticising them, but again Professor Andrew Ashworth talked about catalytic cases, where you get the rare case that cuts through into public consciousness; you can use those cases to make a change. We have done that for things such as abolishing the death penalty or introducing the Police and Criminal Evidence Act.
My concern slightly is that by making these cases just go away, we miss an opportunity to look at some of the problems that exist in the criminal justice system, and particularly in the appeals system and the Criminal Cases Review Commission. It is a really good opportunity to make the public understand this. So much can be learned from it, and we miss that if we just make these cases disappear.
Chair: That may be for another evidence session coming up in time.
Joshua Rozenberg: I put this point to the Lady Chief Justice, and she made a couple of points in response. I suggested to her that surely the judges in the Crown court would have been aware that something was going wrong with so many prosecutions and convictions, and she said that the judges in different Crown courts do not really get together and discuss what sort of cases they are dealing with. She said that in many cases, defendants pleaded guilty.
We all know why some defendants chose to plead guilty, but the courts simply went ahead on the basis that the defendant had pleaded guilty, and therefore moved to litigation and sentencing. For those that were contested, will the judges take the view that the cases were decided by juries? We are talking mainly about the Crown court. The judges do not feel that they did anything particularly wrong, but they say that they are willing to do everything that they can to put it right.
Q60 Dr Mullan: But if the Lady Chief Justice’s attitude is, “Well, we do not think that there is anything for us to learn”, what is the mechanism through which that will happen? I recognise that juries make decisions, but the judge is supposed to be there as a safeguard for due process and ensuring that the whole thing is fair.
Joshua Rozenberg: I am sure she would answer your question by saying that the judges have learned from this, but she did not feel that the judges should be blamed for these miscarriages of justice, given what happened in the courts.
Dr Craig: On the point of the mechanical device, there was a long period where defence barristers were saying to the police officer in drink-driving cases, “Prove your machine was working”, which is why the statute changed. That then created the presumption that Horizon was working effectively, and you could not bring a judgment—
Chair: I can remember doing exactly that, which probably dates me.
Q61 Joanna Cherry: It is really rules of evidence, rather than the judges, that are to blame. Just getting back to the separation of powers thing, I am starting to be very persuaded by your argument, Dr Craig. I think it is true to say that in the United Kingdom there is no strict separation of powers doctrine as there is in some other jurisdictions, but isn’t the crucial distinction between the way in which the courts approach things and the way in which Parliament approaches things?
The court can look only at the case that comes before it—the individual case—whereas Parliament is in a position to step back and look at, to use your words, Dr Craig, a “systemic miscarriage of justice” that seems to come not so much from what happened in the courts, but more from what happened at the back end or the front end of the procedure.
Something very dubious was going on in the Post Office—we do not have time to get into that this afternoon—but certainly many of us feel that these prosecutions were malicious. The problem lies with the prosecutor; it is possibly a wee bit different in Scotland, because we have the Crown in between. Surely that must be the answer to the separation of powers argument.
There are certain exceptional cases, and there won’t only be one; it doesn’t matter if we set a precedent, because there could be other systemic problems in the future. Where there is a systemic problem affecting hundreds of innocent people and destroying lives, such as the shocking stuff we saw on the television, like a pregnant woman being sent to prison for something she hadn’t done, that is the justification for Parliament coming in. I know you disagree with me, Dr Quirk. I thought the stuff you have written about this is fantastic, and I would love you to just encapsulate why what I am saying is wrong.
Dr Quirk: Because I think once you start changing the mechanism for certain cases, it is much more open to abuse. I could see an argument that all the convictions relating to partygate or breaches of covid regulations were unfair, so Parliament could legislate to quash those, and similarly with the miners’ strike convictions and Northern Ireland cases, as I’ve mentioned. I think politicising individual convictions is a very dangerous road to go down. We have a mechanism that works, and we should give it the resources to make sure it does so in these cases. It is a terrible cliché, but hard cases make bad laws.
Chair: That encapsulates the differing points of view. It has been very helpfully done.
Q62 Chris Stephens: For the final question, we will start with you, Dr Craig. I am thinking about the Glasgow South West constituent who was not convicted, but had to beg and borrow to pay back a so-called shortfall from Horizon, which I would call a bogus debt. There are clearly other issues. Are there other issues that you believe Parliament should consider addressing through legislation as a result of the Horizon scandal?
Chair: Let’s go round the panel.
Chris Stephens: Let’s go round the panel. The last word will go to Glasgow, as always. Let’s start with Dr Craig.
Dr Craig: This catastrophe raises a large number of ancillary cases and issues, and Parliament is seized of the potential future compensation claims that may be coming through, but I am not across enough detail on the cases where there was no conviction to be making concrete claims about this.
One thing I will say, though—this is a little unrelated—is that what has been proven here is just how much reputation matters in your local community and in the real world, out there in the country. This may be low-hanging fruit in some ways, because it has overwhelming public support in the opinion polls. For me, this suggests that all defendants should be anonymous until convicted, which goes to the point about the reputation being affected, but that is a separate point.
Chair: Interesting. Okay. That is a very big issue.
Dr Quirk: I am conscious of time, so I will just go through it very quickly. I think you are absolutely right about wrongful accusations, and we need to look at the pressures on suspects for that. The speed at which cases are dealt with is fundamentally important; people have these accusations hanging over them for years at the moment while waiting for trial.
On access to legal aid, if people are on moderate incomes they may not be eligible for legal aid, which may affect the decisions they take. On the pressure to plead guilty, we need to look at issues around plea bargaining. We also need to look at the work of the Criminal Cases Review Commission and compensation for those who have been wrongly convicted.
Q63 Chris Stephens: Joshua, over to you. I am obviously thinking about this from a debt point of view, which may be civil, but is there anything else that Parliament should legislate on in relation to the Horizon scandal?
Joshua Rozenberg: I am not sure about legislation, but if you are talking about what your constituents must be saying—I can say this with the benefit of parliamentary privilege—what an awful lot of people want to see is people from the Post Office facing criminal charges, even to the extent that people are talking about bringing private prosecutions, which is somewhat ironic.
It is obviously right to wait until the end of Sir Wyn Williams’s public inquiry to see what the evidence is. That is the one thing that the public are looking for, and, of course, it is the one thing that Parliament shouldn’t get involved in.
Chris Stephens: Professor Chalmers—last word to Glasgow.
Professor Chalmers: I would simply say that the kind of case you mention is one that should be addressed through compensation. Like Dr Craig, I am not on top of enough of the detail of that to answer whether it is adequately addressed at present, but I do not think that requires legislation to answer that problem.
Chair: Thank you very much. This has been wide-ranging, and I am grateful to all of you for your input. It’s an unusual session for us to do, but we thought it was important to have this on the record prior to the debate on the Bill, which may come back to the House for its Committee stage quite swiftly for all we know.
I am immensely grateful to you for your time and your evidence today. We will conclude this session and swap over to our next panel—apologies for keeping them waiting.