Post Office: Capture System

Lord Burnett of Maldon Excerpts

Thursday 12th December 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I hope my noble friend will bear with us, because we are coming back with a response on the Capture system next week, so I am sorry I am not able to answer on the detail of that. On the current ownership and governance arrangements, we are committed to a Green Paper looking at those relationships between the Post Office and the Government. It will be published in the early part of next year and will address issues about the involvement and representation on the board that my noble friend has raised.

[Lord Burnett of Maldon (CB)]

My Lords, as my name has been mentioned on two occasions already, it is perhaps apt that I should say something. I yield to no one in my admiration for the work that the noble Lord, Lord Arbuthnot, has done in this field. He was good enough to pay an undeserved tribute to some of the work I did in the background as well. I fear, on this occasion, that in praying in aid the scheme I proposed for the Horizon problem, to deal with a constitutional solipsism, we are not yet there with Capture.

Does the Minister agree that, in our constitutional arrangements, the separation of powers and rule of law suggest that courts should deal with wrongful convictions, and overturn them if they are established as such? Does she also agree that in this instance it is much better to wait for the Criminal Cases Review Commission to refer some cases to the Court of Appeal, which will then deal with them by looking at all the facts, evidence and arguments and, if there are problems, quash the convictions?

[Baroness Jones of Whitchurch (Lab)]

The noble and learned Lord raises important issues of law. He will know that the Law Commission is already looking at the law relating to criminal appeals and is due to report next year. That review includes consideration of the CCRC’s role and the statutory tests it applies. The Government will carefully consider any recommendations.

To return briefly to the Capture system, the Court of Appeal is yet to overturn any convictions relating to the use of Capture. The Criminal Cases Review Commission is already considering five potential cases and it is right and proper, in these circumstances, that we let the CCRC and the SCCRC finish conducting those reviews.

Post Office (Horizon System) Offences Bill

Lord Burnett of Maldon Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Lord Burnett of Maldon (CB)]

My Lords, the wrongful conviction of sub-postmasters and sub-postmistresses as a result of prosecutorial misbehaviour has caused personal harm—indeed, tragedy—and a national scandal. Wrongful convictions must be quashed, and a bespoke process is necessary to accelerate justice. But the legislative solution His Majesty’s Government have chosen was described in a Written Statement in February by the Minister, Kevin Hollinrake, as raising “constitutional sensitivity” and being “unprecedented” in nature. The constitutional sensitivity arises from the fact that Parliament does not quash convictions; that is a matter for the courts. What the Bill proposes is indeed unprecedented since the constitutional settlement that followed the Glorious Revolution at the end of the 17th century.

The Lord Chancellor, in his recent appearance before the Constitution Committee, said:

“Anybody who cares about the system has misgivings”.


Indeed they do. In the House of Commons, Sir Robert Neill said:

“Frankly, it is most undesirable that we should ever go down that route”.—[Official Report, Commons, 13/3/24; col. 317.]


The Minister responded by saying:

“We agree that this is unprecedented and undesirable, but we believe it is the least worst option”.—[Official Report, Commons, 13/3/24; col. 317.]


I endorse the Government’s sentiment that this legislative proposal is undesirable, but not that it is the least worst option. An alternative scheme, which would have kept within the well-understood constitutional boundaries that separate the roles of Executive, Parliament and the judiciary, was considered but rejected by the Government. I declare an interest in having sketched out such a scheme in early February; I will identify its key features in a few moments.

First, it might be useful to bring together some of the facts. The Bill seeks to capture 950 or more convictions over a period of a little more than 20 years. The helpful Library briefing note tells us that the Post Office has identified 730 individuals it prosecuted where evidence from Horizon may have been used. The balance was prosecuted by the prosecuting authorities in England and Wales, Scotland, and Northern Ireland. I shall focus on England and Wales, which accounts for most of that total. Those cases were pursued in the magistrates’ court as summary offences, and in the Crown Court on indictment—about half in each court. In answer to a question on Radio 4 on 26 March, the Lady Chief Justice explained that in over 90% of cases the defendants had pleaded guilty.

The High Court judgments in civil proceedings before Mr Justice Fraser in Bates v Post Office at the end of 2019 exposed the flaws in the Horizon system; the first tranche of appeals in the Court of Appeal Criminal Division in 2021 revealed more. The evidence heard by the public inquiry has raised further questions about non-disclosure, the suppression of evidence and worse, and so the original grounds of appeal to the Court of Appeal are now much expanded.

More than 100 appeals have been allowed in England and Wales—about three-quarters in the Court of Appeal on appeal from the Crown Court and about one-quarter in appeals from the magistrates’ court to the Crown Court sitting in its appellate capacity. Some have involved appeals brought out of time by the convicted defendants themselves; others are references by the Criminal Cases Review Commission. A few appeals have been dismissed by the Court of Appeal because the court concluded that the conviction was safe. That is the statutory test. An appeal to the Court of Appeal will be allowed only if the conviction is unsafe. By contrast, an appeal from the magistrates’ court is a complete rehearing. If the prosecution does not call evidence, the appeal will be allowed. No appeal to the Crown Court from the magistrates’ court has been contested by the prosecution.

Both the Post Office and the Criminal Cases Review Commission have contacted all those they can identify to help get their cases back to the appeal courts. The response has been disappointingly poor. Many may just have had enough. That has raised the question of what to do. The Government’s answer is this Bill, but what of the alternative? The outline was simple: legislate to confer power on the Secretary of State to refer cases to the relevant appeal court if she considers that the conviction may be unsafe—that could include cases that have already gone through the courts—and give the Court of Appeal Criminal Division the powers of the Crown Court sitting in its appellate capacity, so all appeals could be dealt with in one place.

The burden on an appellant from the Crown Court to the Court of Appeal is to demonstrate that the conviction is unsafe. The reality is that if an appeal of this sort were not contested in the Court of Appeal, the appeal would be allowed. But any doubt about that could be resolved by reversing that burden with a statutory presumption that the conviction is unsafe. The prosecution would have to rebut it positively to sustain the conviction. The appellants would need to do no more than identify the grounds on which they rely, which are now almost pro forma. To cater for the cases where a defendant has died or lacks capacity, the Attorney-General could be given a representative role. In this scenario, the Secretary of State would be able to inform all those whose cases she intended to refer. Representation could be lined up. The cases would go thought the courts en bloc and be dealt with swiftly.

What, then, of the objections? At their heart is the proposition that many of those affected will not initiate proceedings. The outline scheme caters for that. Next, it is suggested in the Explanatory Notes that an appeal

“relies on there being sufficient evidence that the conviction is unsafe and in many cases that evidence no longer exists”.

The reversal of the burden in the Court of Appeal caters for that and, in any event, the point does not run for appeals from the magistrates’ court. I have also heard it suggested that the courts could not deal with these cases quickly. That has been flatly contradicted in public by the Lady Chief Justice and is confounded by the speed at which appeals are being dealt with at the moment.

All schemes have rough edges but, for the sake of conforming to accepted constitutional norms, a scheme of the nature I have outlined would—with respect to the Minister—be preferable. It would avoid the Executive inviting Parliament to do something about which Ministers themselves have said they have “misgivings” on constitutional grounds and have described as “undesirable”.

It would also avoid one of the anomalies of the Bill: that there is no scope to exclude convictions which are sound. As Sir Robert Neill has pointed out, the Bill sets out to quash convictions

“even if Horizon evidence did not form part of the prosecution”.

That is right. Condition E is simply

“that, at the time of the alleged offence, the Horizon system was being used for the purposes of the post office business”—

not that it was being used by the defendant, nor that it was material to the conviction, but simply that it was there. There may be no Horizon evidence at all in many cases that this Bill would quash. This Bill would quash convictions not affected by the Horizon scandal. It might be thought that that matters not only for constitutional reasons, but because of the Government’s plan, which the Minister explained, to give anyone whose conviction is quashed by this legislation at least £600,000.

It may be that this Bill can be improved by amendment, but its flaws are fundamental. It seeks to achieve a desirable outcome by a novel and unconstitutional route when a satisfactory alternative is available. It will provide food for academic debate and will long feature in university courses on the rule of law, the independence of the judiciary and the separation of powers. The repeated suggestions from the Government and the Opposition that it provides no precedent are perhaps the clearest indication that its proponents know that it is wrong in principle to ask Parliament to quash convictions. However, it does provide a precedent, as no future Parliament can be bound by what is said in connection with this Bill. Whether any politicians in the future will try to use it as a precedent, we shall have to wait to see.