Last month we saw the Court of Appeal overturn the convictions of 39 former sub-postmasters in one of the biggest miscarriages of justice in UK legal history. However, this appears to be only the start.
Private Prosecutions | Rosenblatt’s Financial Crime Team
We have reported on this case in several other articles, monitoring the proceedings through to the Court of Appeal Judgement on 23 April 2021.
The Metropolitan Police are now investigating allegations of perjury, the Solicitors Regulation Authority are making enquiries into the role that solicitors played in the disclosure of key evidence and private prosecutions are once again under scrutiny. This all suggests that a full judge-led public inquiry into the long-running affair is required. Unfortunately, at present the only public inquiry that is currently underway is that chaired by the president of Welsh tribunals Sir Wyn Williams who is only considering what went wrong with the Horizon IT system. Its terms of reference do not include the Post Office’s prosecution function or matters of criminal law.
The London firm, Howe & Co represents 555 individuals in pushing for a statutory inquiry into the matter. They wrote to the Department for Business, Energy & Industrial Strategy, which oversees the Post Office to request the current inquiry is paused and that it be re-established on statutory footing and that they consult to redefine the terms of reference.
David Enright Partner from Howe & Co stated “the department should be called as witnesses under oath, not have effective control of the inquiry.” He continued “the Post Office wrongly prosecuted so many upstanding pillars of the community and its owners want to mark [their] own homework – that is unconscionable.” Meanwhile business minister, Paul Scully acknowledged that the inquiry would consider the Post Office’s ‘who did what’ approach but resisted calls for a full judiciary inquiry. He also promised that victims would receive “fair, consistent and speedy compensation.” However, the lawyers that represented the sub-postmasters noted that the Post Office spent £140m defending civil litigation last year, so few of the victims are hopeful for a swift resolution.
Any public inquiry would be expected to look into the role lawyers played in the prosecutions of the sub-postmasters and whether any sanctioned or authorised the Post Office’s withholding of evidence indicating Horizon’s unreliability.
In the Court of Appeal ruling Lord Justice Holroyde stated that documents submitted to the court suggested that the Post Office adopted a culture of “seeking to avoid legal obligations when fulfilment of these obligations would be inconvenient and/or costly.”
The Post Office was informed by a barrister in 2013, shortly after the last of their successful private prosecutions that there were issues arising from expert witness advice which was relied upon in court. The barrister’s legal opinion noted that the expert had been aware of at least two bugs in the Horizon system, a fact which should have been disclosed to any defendant who ran a defence based on these computer faults. The Court of Appeal ruling also stated with regard one prosecution, a legal executive sent a memo confirming that he had omitted to mention that another defendant had raised issues with Horizon, adding “they can find out for themselves.”
Many are now calling for a criminal investigation into what really went on with the Post Office’s private prosecutions against the sub-postmasters. The investigation is being asked to look at financial investigators, senior management and lawyers acting on behalf of the Post Office throughout this process.
Richard Moorhead, professor of law and professional ethics at Exeter Law School stated “‘If we ask the traditional question of all such scandals, “where were the lawyers?”, the only response is, “where weren’t they?”. Because they were either at the heart of it or ought to have been. Not solely responsible, of course, but importantly responsible.”
The Post Office have apologised and stated that its culture, practices and operating procedures have all changed. They have also confirmed in the wake of the Judgment they are seeking to contact around 540 people with relevant convictions and additional information is being sought in another 100 cases.
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