Post Office (Horizon System) Offences Bill

Baroness Brinton Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Baroness Brinton (LD)]

My Lords, it is an honour to follow so many noble Lords in speaking at this Second Reading.

On these Benches, we too support the Bill. I am grateful that the right reverend Prelate pointed out that there is not one single party grouping or other grouping against it. That speaks to the highly unusual circumstances. While I am sure that will not entirely comfort the noble and learned Lords, Lord Burnett and Lord Etherton, I hope it will give them some reassurance that the Bill is meeting the issues that they both raised about the potential for future totalitarian moves. If you read the progress of this Bill in another place, you will see that exactly the same happened there. There was much thought about the difficulties of the constitution and how this fits in while trying to balance that with the difficult circumstances the country finds itself in following this extraordinary miscarriage of justice.

I thank the Minister for our meeting last week. I also thank the House of Lords Library and the Law Society for their helpful briefings. I am speaking from these Benches today in the absence of my noble friend Lord Fox, who hopes to be able to join us for the next stage of the Bill.

For those of us who perhaps have been sad enough to sit and watch many of the hours of evidence in this phase of the inquiry, it is vital to remember that the lives of the sub-postmasters and other Post Office front-line staff have been ruined by Post Office Ltd and Fujitsu. Both of them convinced magistrates, juries and judges that the software package could not be accessed remotely. As the noble Lord, Lord Arbuthnot, outlined and the noble Baroness, Lady Jones, also spoke about, Fujitsu will need to face justice, as will the management at Post Office Ltd. Evidence in recent weeks has now put into the public domain the fact that staff at both organisations knew many years ago that it was possible to access Horizon remotely, and that it was done to remedy glitches and errors.

The noble Lord, Lord Sikka, referred to the oral evidence of Rod Ismay as unimpressive. Helpfully, though, the written evidence presented to him from emails and reports during that period made absolutely plain who knew what and when. Despite that, since 2000, the Post Office has prosecuted some 730 individuals, many of whom were convicted and imprisoned on what appear to have been false evidence and assertions. Many were not only bankrupted but lost their homes, their businesses and the faith of their local communities when they served in their local Post Office branch, as the noble Lord, Sahota, rightly pointed out. As we have heard, some postmasters committed suicide.

As with other scandals, such as the infected blood victims, compensation and interim compensation schemes have been set up. Those whose convictions have not yet been quashed are ineligible to apply for them. The Horizon Compensation Advisory Board has made a specific recommendation that all the affected sub-postmasters’ convictions are unsafe and should be swiftly overturned. As I have already outlined, what we are hearing in the inquiry reinforces this beyond any shadow of doubt. We must leave it to Sir Wyn Williams to present his report and his findings in due course, but it is evident that things have gone badly wrong.

The noble Lord, Lord Browne of Ladyton, reminded me of a software engineer’s description of error-filled software. I am married to an engineer who is involved with software. A common phrase in our family is “garbage in, garbage out”. Yet, one of the problems of this case is that everybody believed that the software was invincible. Therein lay the miscarriage of justice.

It is public knowledge, through both the Court of Appeal judgment in 2021 and the evidence given under oath at the public inquiry, that the technical reason relied on for every single prosecution was that it was impossible for anyone, apart from the sub-postmaster, to access an individual’s account. We know that that was demonstrably untrue. Worse, POL and Fujitsu continued to rely on it, even when they knew it was not the case. That is an even worse miscarriage of justice. On these grounds alone, every single one of the remaining Horizon convictions should be overturned.

I am grateful to the noble and learned Lord, Lord Burnett, for saying that the judiciary could and should be able to proceed with appeals. There are real concerns about capacity, as the noble and learned Lord, Lord Falconer, said. The noble Lord, Lord Sandhurst, also expressed concerns about the timescale. We know that there is a large backlog in cases coming to the Criminal Cases Review Commission, let alone the issue of finding time in the Court of Appeal. The one thing that we have heard from every speaker today is that these issues must be resolved at pace.

Some convicted postmasters are dying. Others are at retirement age, having lost everything decades ago as a result of these convictions. It is not just unfair that they cannot access justice swiftly; this is itself an injustice. I support the concerns expressed by the noble Lord, Lord Arbuthnot, about DWP convictions between 2000 and 2006 being treated differently from CPS convictions. Will the Minister ensure that the DWP is required now to assess its prosecutions in this case? I am grateful to the noble Lord, Lord Sikka, for going into further detail on the question of DWP convictions being reliable. Given that Post Office Ltd has now given up its right to conduct prosecutions, I wonder whether the same should be true for the DWP.

I have questions for the Minister that I warned him about last week. First, in Clause 2, the relevant offence is defined by time, between 1996 and 2018, and by offence; Clause 2(6) specifically mentions the Horizon system, as does Clause 10; and Clause 8 provides a power for the Secretary of State to make further consequential provision. The Delegated Powers Committee supplementary memorandum confirms the narrow scope, and all this should give reassurance to the House that that is true.

However, there is a problem. The system prior to Horizon, Capture, is now revealed to have had serious software glitches and errors in the same way. I am grateful that the Government have now instituted an inquiry into that, although, hopefully, of a more limited nature. The Independent newspaper reported that former sub-postmasters had suffered unexplained shortfalls caused by Capture, which was rolled out in the early 1990s. Details show that the Post Office knew Capture was prone to faults and glitches, yet prosecutions went ahead.

Following the inquiry that the Government have now instigated into the Capture convictions, would it be possible—I suspect the answer is no—to add Capture to the Horizon inquiry? Yes, the software definitely predated Horizon, but everything else, including the bizarre and unexpected shortfalls and the way the Post Office conducted the prosecutions, including repeated assertions, is very similar to the Horizon case. If that is not possible but the Capture inquiry comes to the same conclusions as are now evident from the Horizon inquiry, what route to redress is available for the Capture postmasters?

The noble Lords. Lord Arbuthnot and Lord Sandhurst, and the noble and right reverend Lord, Lord Sentamu, spoke of the 13 people post the Hamilton case who had their sentences upheld by the Court of Appeal, of whom seven are entitled to appeal but six were refused leave. Assuming that the final inquiry report confirms that cases relating to Horizon should never have been brought to court because of the Post Office relying in every case on Horizon, saying repeatedly that it was not possible for anyone to be able to access postmasters’ Horizon accounts, can the Secretary of State ensure that these cases are entitled to make an application to appeal? There are consequential rights, although the Bill says they are limited in scope, for the Secretary of State to do so. Would a particular finding from the inquiry be something that could happen? The noble Lord, Lord Sandhurst, said he believed those people would not be able to get any of their convictions overturned under the Bill. Is that true? He is shaking his head, so if I misunderstood him then I apologise. Could the Secretary of State’s power be used in regulation as it relates to Horizon?

I hope we will be able to progress with the same carefulness with which we started this Second Reading.

[Lord Sandhurst (Con)]

Under Clause 3(2) of the Bill, you do not get your appeal allowed if it has been dismissed by the Court of Appeal.

[Baroness Brinton (LD)]

I am referring to Clause 8, which is the power of the Secretary of State to make further consequential provision. I wondered whether the recommendations and report from the Horizon inquiry might be able to be used by the Secretary of State to make that happen.

--- Later in debate ---

[Lord Offord of Garvel (Con)]

My Lords, this has been a thoughtful and considered debate, and I am grateful for the broad and insightful contributions from noble Lords across the House. I was particularly grateful for the opening contributions of the noble and learned Lords, Lord Falconer of Thoroton and Lord Burnett of Maldon, one speaking as a former Lord Chancellor and the other as a former Lord Chief Justice. They were able to frame so eloquently the two potential solutions available to your Lordships’ House to right these wrongs.

The Government acknowledge that the quashing of convictions by an Act of Parliament is an exceptional step, but we believe it is required to respond to a factually exceptional situation. We know that many postmasters are simply too traumatised or disenchanted with authority to consider appealing, no matter how easy we make it. They want to see no further lawyer or court; they are scunnered. In many cases, evidence simply no longer exists anyway in order to help their cases. The scale and circumstances of prosecutorial and investigatory misconduct over such an extended period are unique in our history. The scale of this miscarriage of justice is an affront to the rule of law itself. Therefore, it is right that the Government intervene to deliver justice to hundreds of postmasters, who deserve this without having to make a huge amount of effort themselves. We need to do this while respecting the delicate constitutional balance so eloquently put forward by a number of noble and learned Lords this afternoon.

I will start by covering the legislative approach we are taking. I understand the concerns of the noble and learned Lords, Lord Burnett of Maldon and Lord Etherton, and the right relevant Prelate the Bishop of Manchester. We all share their respect for an independent judiciary. I have been clear that the Bill is not a comment on the outstanding work of the courts and judiciary, which have dealt swiftly with the cases before them. I am cognisant of the assurances given by the judiciary that it would move fast in this case.

However, I respectfully disagree with how the noble and learned Lord, Lord Etherton, characterised the legislation. We agree that the separation of powers is a vital part of our justice system, but public confidence and faith in the system are also vital. This is a miscarriage of justice on a scale never seen before, and the circumstances are exceptional. We have carefully considered other approaches, including court processes. However, ultimately, no reform short of this legislative approach provides the swift remedy needed as a result of these unprecedented circumstances.

Many postmasters would not see justice through the courts, because much of the evidence about individual cases has now been destroyed or because many postmasters no longer trust the criminal justice system and therefore will not come forward. It is therefore right that the Government take action to put this right.

The noble and learned Lord, Lord Burnett of Maldon, raised the possibility of legislating to give Ministers powers to refer cases to the Court of Appeal and assume that all convictions were wrongful unless new evidence was presented. Reconsideration of cases by the Court of Appeal would take time even if court processes were expedited. Further, a presumption that all relevant convictions are unsafe is rebuttable, and we cannot be sure that every case would pass through the courts swiftly and without adjournments. This approach would not avoid interfering with the independence of the judiciary; it would raise other constitutional concerns, as it would make an assumption about the outcome of the cases being referred, meaning that the Government were still interfering in the judicial process of the senior appellate court.

The noble and learned Lord, Lord Burnett, also spoke about comments made by the Lady Chief Justice. She said that in over 90% of cases the defendants pleaded guilty. We are not able to verify this figure, which in itself tells noble Lords quite a lot about this case. As the noble and learned Lord, Lord Falconer, rightly raised, we are also aware, from Sir Wyn Williams’ inquiry, of evidence suggesting that individuals pleaded guilty because they were told to or felt under pressure.

I turn to the specific issue of the Court of Appeal cases, which was highlighted at the beginning of the debate by the noble Lord, Lord Arbuthnot of Edrom, and then raised by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Holmes of Richmond. This is a difficult issue; I thank noble Lords for raising it.

Let us start by reminding your Lordships’ House of the unprecedented and constitutionally sensitive nature of this legislation. That is why it is vital that we legislate in a way which respects the separation of powers and the independence of the judiciary as far as possible. Including convictions that have been upheld by the Court of Appeal would override decisions taken by the senior judiciary. Of the 13 such cases we know of, seven were upheld by the Court of Appeal and six were refused leave to appeal. They are excluded from the Bill because the Government believe we should tread very carefully where judges in the senior appellate court have considered a case on its merits. We recognise that this approach may leave a small number of individuals concerned about the way forward for their cases. In cases where the Court of Appeal has upheld a conviction, the usual routes of appeal remain available to them.

I turn to the matter of the DWP cases—

[Baroness Brinton (LD)]

I am sure that is right for the seven who could appeal, but there were six who were not given leave to appeal. What would their route be to getting justice?

[Lord Offord of Garvel (Con)]

My understanding is that six were given no right to appeal because it was considered they did not have the evidence to do so; in effect, they are considered with the 13 whose convictions were not overturned. Therefore, they are included within the same category.

Post Office (Horizon System) Offences Bill

Baroness Brinton Excerpts

Committee stage
Thursday 23rd May 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, in the unavoidable absence of the noble and learned Lord, Lord Falconer, I shall speak to Amendments 2, 4, and 6, and to the question that Clause 3 stands part. I shall briefly touch on Amendment 1, which intended to include in the convictions to be overturned by this Bill those convictions that were secured by the Department for Work and Pensions. Although I have concerns about those convictions—I thank in particular a former sub-postmaster, Chris Head, for his tireless work on the subject—I do not think that those concerns have yet reached the extraordinary threshold required to ask your Lordships, as a legislature, to overturn convictions made by the courts.

However, I take a different view about those cases that have been before the Court of Appeal. We shall, I hope, decide today in Parliament to overturn the convictions of hundreds of sub-postmasters. We need to try to be fair. as between sub-postmasters. in choosing those whose convictions we overturn. The 13 cases which have been before the Court of Appeal in one way or another are not outstandingly wicked, compared with the hundreds of other sub-postmasters whose convictions will be overturned. Those 13 will not necessarily have the recourse of going back to the Court of Appeal because there may be no new evidence in their individual cases—new evidence which other sub-postmasters whose convictions are being overturned by this Bill are not required to provide. That is not fair, and I believe we should agree to Amendments 2, 4 and 6, and we should take out Clause 3.

[Baroness Brinton (LD)]

My Lords, I have Amendment 14 in this group, but just before I get to that, from these Benches, I support everything that the noble Lord, Lord Arbuthnot, just said. Had we had a proper, usual style of Committee we would have debated this for much longer and perhaps even taken things to a vote, but we recognise that times are different.

I have tabled Amendment 14 because I had a bit of a debate with the Minister about the previous software, Capture. I am very grateful to him for the private meeting that we had, where we discussed my concerns in some more detail. I hope he will be able to give some more reassurance.

Because there is now an inquiry or an investigation into the Capture process, it obviously cannot be included within the Bill. However, should that inquiry discover that the same sort of faults happened, and the Post Office used the same sort of criminal investigation procedure, could the Minister please explain, hypothetically, what would happen to Capture? Would it require a similar Bill to remedy the position of those postmasters, should they be found to have been incorrectly charged and then convicted? This is important because although there are differences between Capture and Horizon the more that is revealed, the more there are some striking similarities, both in Fujitsu’s denial of glitches and bugs and in the way the Post Office investigation team prosecuted cases.

[Baroness Butler-Sloss (CB)]

My Lords, I remain extremely unhappy about this Bill and the way in which it has arisen, but I recognise the overwhelming importance of, at long last, doing justice to sub-postmasters. I assume that the evidence given to the Court of Appeal would have been similar to the evidence given to the original court. In those circumstances, it seems that the noble Lord, Lord Arbuthnot, is absolutely right and they should not be treated differently.

--- Later in debate ---

[Lord Offord of Garvel (Con)]

My Lords, I apologise to the Committee for the confusion in proceedings this afternoon. I would like to deal with the amendment put forward by my noble friend Lord Arbuthnot in relation to Court of Appeal cases. Proceedings are progressing here at great speed and I am grateful to noble Lords for their patience. I express my deep personal sympathy with my noble friend on this issue. However, I confirm that, on Court of Appeal cases, the collective government position has not changed. I understand that my noble friend may therefore wish to test the opinion of the Committee on this issue.

I move now to Amendment 13 on post-Assent implementation, in the name of the noble and learned Lord, Lord Falconer. This amendment would require the appropriate authority to notify bodies other than the convicting court that a conviction had been quashed. The effect of this amendment would be potentially onerous. It is not clear what would constitute an appropriate body or how the appropriate authority would decide which bodies ought to be notified. The reason that the Bill currently requires that the convicting court be notified is to reflect what happens when the Court of Appeal quashes a conviction. This amendment would create a difference between the two purposes and it is unclear what purpose it would achieve. I therefore hope the noble and learned Lord will not press his amendment.

I turn now to Amendment 17, in the name of my noble friend Lord Holmes of Richmond, which would require the Secretary of State to lay before Parliament a report on the power to bring private prosecutions. Sir Wyn Williams’s inquiry is examining all the failings that led to the Post Office convictions and it is important that we do not pre-empt the findings of that inquiry by publishing a separate review on this single issue. The Government have already committed to reviewing the Justice Select Committee’s 2020 report on the role of private prosecutions, and are in the process of doing so. The Government believe that this is out of the Bill’s scope and could detract from resourcing the implementation of the Bill. I therefore ask my noble friend to consider not pressing his amendment.

I turn to Amendment 18 on computer evidence, also in the name of my noble friend Lord Holmes. I fully understand the intention behind this amendment, which is to highlight the role that computer evidence played in the prosecution of postmasters. I agree that we need to look closely at the wider question of how computer evidence is used in court proceedings. The failings of the Horizon accounting system are now well known. However, as was made clear in the Court of Appeal, and as continues to emerge from the ongoing statutory inquiry, faulty computer evidence was not the sole cause of this miscarriage of justice. Rather, the prosecutions relied on assertions that the Horizon IT system was accurate and reliable, which the Post Office knew to be wrong. This was supported by expert evidence that the Post Office knew to be misleading.

Sir Wyn Williams’s inquiry is examining all the failings that led to the Post Office convictions and it is important that we do not pre-empt the findings of that inquiry by publishing a separate review on this single issue. The use of computer evidence is much broader than purely Horizon-style accounting software. Indeed, computer evidence is now widespread in most prosecutions, with serious fraud offences typically involving millions of such documents. The Government recognise that a law in this area must be reviewed, but we need to tread carefully, given the significant implications that any change in the law could have for the criminal justice system.

I turn to Amendment 14, on Capture. I thank the noble Baroness, Lady Brinton, for her continuing interest in this. We maintain the position that Capture should remain outside the scope of this Bill. We have not found sufficient evidence to date to conclude that Capture led to people being wrongly convicted. Given the limited information that we currently have about Capture and resulting convictions, there is not yet evidence that any miscarriages of justice took place. I reassure the noble Baroness that we are looking into what can be done on Capture. As soon as the Government found out about issues with the Capture system, we asked the Post Office to investigate. We are in the process of appointing an independent forensic investigator to look into the Capture software and how the Post Office addressed concerns about it.

[Baroness Brinton (LD)]

I am sorry, but I am slightly concerned with the proposal that the Post Office could investigate. Will the Government consider providing someone slightly more independent, given some of the issues that have arisen recently?

[Lord Offord of Garvel (Con)]

My understanding is that, obviously, the first port of call will be the Post Office, as it administers these matters. However, I can confirm that we are in the process of appointing an independent forensic investigator to look into the Capture software and how the Post Office addressed concerns about it—that will be an independent review. I am happy to reassure the noble Baroness that, once the investigator has reported, the Government will seek to return to this House to set out our plans.