Post Office (Horizon System) Offences Bill

Lord Arbuthnot of Edrom Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare an interest as a member of the Horizon Compensation Advisory Board, although I think it has now been renamed the Horizon redress advisory board. It is a genuine honour to be able to follow a speech such as that from the noble and learned Lord, Lord Burnett. I am grateful for what he said and for the immense amount of work that he has put into this most terrible of problems. I want to comment on some of the points that he made during his remarks, but I am grateful to him.

In the face of one of the most widespread injustices in this country—we all know the background—we needed to do something. This Bill is the Government’s answer, and I welcome it. I am extremely grateful to my right honourable friend the Prime Minister, my noble friend the Minister in this House and the Post Office Minister in another place, Kevin Hollinrake, for their astonishingly fast appreciation of the need for urgent, dramatic action and for following it through in this way. I am also grateful to my right honourable friend the Lord Chancellor for having some really difficult discussions, as we have just heard, with the judges about this.

As the noble and learned Lord, Lord Burnett, has told us, the Bill could have gone two ways: it could have gone his way, or the way that it has. The argument in favour of involving the judges, based on the separation of powers, has been carefully set out by the noble and learned Lord. It is an uncomfortable thing—some would put it much stronger—to have the legislature overturning decisions made by the judiciary, because that could form a constitutional precedent, and I accept that it does form a constitutional precedent, which would take us in the direction of totalitarianism.

I will not express a preference between the suggestion of the noble and learned Lord, Lord Burnett, and the Government’s suggestion in this legislation, because this is the Bill that we have, and I am thankful for it. I understand—of course I do—the constitutional difficulty of Parliament overturning judicial decisions: I practised as a barrister, my wife is a judge and I value the separation of powers. But I also value timely justice and the early reversal of some of the greatest unfairnesses that this country has ever seen. I want to set out the arguments against involving the judges, if only for the record. I accept that the points made by the noble and learned Lord, Lord Burnett, deal with many of the points that I will make, but, as I said—and as I know he accepts—we have the Bill that we have.

The Fraser judgments in Alan Bates’s group litigation came out in 2019. The clear consequence of those judgments was that many hundreds of convictions were unsafe. We do not know exactly how many—which is odd—but it was in the region of 1,000. Yet, by the beginning of this year, only a few more than 100 sub-postmasters had even applied to have their convictions overturned. There were several reasons for this. The first and the most important was that too many sub-postmasters wanted nothing whatever to do with a court system that had, in their view, treated them so badly. They had been utterly traumatised and wanted to put the whole ghastly experience behind them. They were simply not applying to have their convictions overturned. They wanted no contact with officials, lawyers, politicians, journalists or anybody else at all, for understandable reasons. Yet appeals rely on the appellant applying, and the current system has no procedure for mass appeals brought by the state itself. I did not quite get to the bottom of what the noble and learned Lord suggested to redress that, but it would have probably been workable. Nevertheless, we have the Bill that we have.

The second reason for not involving the courts was that, in many cases, there is no evidence. In some cases, the Post Office will have taken the evidence away from the sub-postmasters and destroyed it; in other cases, the sub-postmaster himself or herself will have given up and destroyed it; and in yet more cases, the sub-postmaster will have died. To overturn a conviction on the basis that it is unsafe, you need to establish with evidence that it is unsafe. I approve of the suggestion of the noble and learned Lord, Lord Burnett, of a presumption of unsafety, but we have the Bill that we have.

The third reason was that appealing against convictions must be done through several different stages. Appeals go to the Post Office, then to the Criminal Cases Review Commission and then to the court at different levels, with the application of different tests, sometimes leading to different outcomes, which is strange in itself. The noble and learned Lord, Lord Burnett, touched on that.

The fourth reason was that the Court of Appeal overturned only those convictions for which Horizon computer evidence was essential to the prosecution. That was an arguable limitation—although, in my personal view, wrong and unfair—in the earlier stages of the process. However, as the public inquiry has uncovered new facts about the behaviour of the Post Office, I suggest that it is a limitation that is no longer tenable. I tread carefully here because the inquiry has yet to report, but it seems that the Post Office investigators, incentivised as they were to recover money rather than to achieve justice, and the Post Office lawyers, intent on concealing evidence, tainted all the evidence produced by the Post Office in any trial.

The deaths of many of the sub-postmasters makes me remind your Lordships that this is urgent. We have to get on with it, and this Bill does that. The Bill quashes certain convictions and, by doing so, it gives rise to redress being paid to hundreds of sub-postmasters. The Bill does not itself deal with that redress. When people say that only a small proportion of sub-postmasters have received redress, they are right, but that will rapidly change with the passage of this Bill. It is an essential step to getting us to where the country wants us to be.

The question of which convictions are to be quashed is a difficult one, but nothing about this saga is easy. The Bill quashes convictions in England, Wales and Northern Ireland, but not in Scotland. I listened with interest to the suggestion from the noble Lord, Lord Browne, as to how the procurator fiscal could operate in Scotland. The Scottish Government are legislating to achieve something similar; I hope that that can be looked at carefully in Committee.

The quashed convictions under this Bill have to have been prosecuted by the Post Office or the CPS, or by the Northern Ireland authorities, but those prosecuted by the Department for Work and Pensions, for example, are not included. This too will need careful consideration in Committee. Certainly, the DWP will need to give very careful thought to the extent to which it relied on Post Office evidence and investigations, and to consider whether the convictions that it secured were any more safe than those secured by the Post Office and the CPS. Should we consider perhaps in Committee widening the scope of the Bill, so that those convictions too are overturned? I have to say that I do not know. I should very much like to hear why the Government consider that DWP convictions are safe when CPS convictions are not. I should also like to hear what the DWP is doing to re-examine its convictions to ensure that it has not relied upon tainted Post Office evidence and investigations.

Another category of convictions not quashed by this Bill is those that have already been considered by the Court of Appeal. I listened carefully to what the noble Lord, Lord Browne, said about this, and I agree with what he said. There are 13 of these cases. I am very uncomfortable indeed about this, for the following reason. The Bill overturns many hundreds of convictions. The Government accept, as they should, that some of the convictions overturned will in fact have been of sub-postmasters who were guilty of a crime. That is the price that we pay for the exoneration of the innocent. Those who have been in front of the Court of Appeal, in exactly the same way as those sub-postmasters who have been in front of other courts, may or may not be guilty. I do not think it is acceptable to tell them that they can go back to the Court of Appeal if there is new evidence, because other sub-postmasters are not being required to provide individual evidence of their innocence—a reversal of the burden of proof. These 13 sub-postmasters are being punished for their efficiency and courage in being early in taking their convictions to the Court of Appeal.

There is, of course, one new bit of evidence which the Court of Appeal did not consider in relation to these 13 cases: that all the sub-postmasters, other than these 13, are about to be exonerated. It stretches credulity to believe that the Court of Appeal would say that, out of all the hundreds of convicted sub-postmasters, it would choose for these 13 to remain convicted. Can it be fair that they should be the only sub-postmasters in the country to be left with convictions? I cannot see that the Court of Appeal would welcome a new application from them, because how could it consider anything other than the facts of these individual cases? We shall need to consider this very carefully in Committee.

The Government are to be congratulated on their speed and courage in bringing the Bill to us, but I first became involved in this matter in 2009 and Alan Bates did so in 2003. “Speed” is obviously a relative term. Let us get on with it.