UK’s Post Office scandal shines spotlight on lawyers and rule of law

Ruth Green, IBA Multimedia JournalistFriday 9 February 2024

It’s been decried as the most widespread miscarriage of justice in UK history. Between 1999 and 2015, more than 700 Post Office operators were prosecuted for theft and false accounting. Now, under proposed legislation, hundreds are preparing to have their convictions finally overturned.

In December 2019, a High Court judge ruled that Horizon, the IT accounting system used by the Post Office since 1999, contained a number of ‘bugs, errors and defects’. He concluded there was a ‘material risk’ that the software was to blame for accounting shortfalls identified at hundreds of Post Office branches, casting significant doubts over the integrity of the data used to secure many convictions.

Despite these concerns and a decades-long campaign for justice, as of 15 January 2024, only 95 convictions had been overturned. It took a television drama aired in the UK in early January to thrust the issue back into the spotlight. Nine days later the UK government declared it would pass legislation to exonerate all remaining sub-postmasters that had been wrongly prosecuted.

Although the move was broadly welcomed, it also triggered renewed concerns over the fragile balance between the executive, legislature and the judiciary in the UK. ‘For the rule of law to be effective, it is essential that there is separation of powers’, says Sarah Hutchinson, Co-Chair of the IBA Rule of Law Forum. ‘In this particular instance, however, many of the victims don’t have time on their side for the due process of judicial review to take place. The government claims to have acted swiftly because the Criminal Cases Review Commission [CCRC] process is too slow. In my view, this is attributable to many years of underfunding and cutbacks in the funding of the justice system.’

What we need is a clear statement from this government that, in this instance, this legislation is exceptional, and that they recognise and respect the independence of the judiciary

Sarah Hutchinson
Co-Chair, IBA Rule of Law Forum

Since 1997, the CCRC has been the statutory body tasked with investigating potential miscarriages of criminal justice in England, Wales and Northern Ireland. Although a number of Post Office victims will have appealed directly to the courts without requiring the involvement of the CCRC, the body has handled around 171 Post Office-related applications to date.

Between 2004 and 2021 the CCRC’s funding fell from £9.24m to £6.33m, such that a Westminster Commission concluded ‘the scale of the cuts’ would ‘have negatively affected the body’s ability to carry out its core functions effectively’. The CCRC applied to the Ministry of Justice for more funding in 2021 to help it handle a growing volume of applications, which were not limited to Post Office referrals. In 2022 its budget was increased to £6.99m.

The CCRC has already referred 71 Post Office cases back to the courts. A further 48 are currently under review and the body says it continues to actively encourage former sub-postmasters to come forward to challenge their criminal convictions via the appeal courts. Resourcing continues to be a challenge, a CCRC spokesperson told Global Insight. ‘The volume of applications to the CCRC is growing’, says the spokesperson. ‘This does have an impact on the pressures faced by our case review staff, so it is essential that the CCRC is adequately resourced to carry out its work.’

Richard Moorhead is a professor of law and professional ethics at the University of Exeter and a member of the Horizon Compensation Advisory Board, which first mooted the idea of passing blanket legislation to overturn wrongful convictions even before the television drama hit UK screens.

Although Moorhead understands the unease caused by the proposal, he says it will not set a dangerous precedent for the government to use primary legislation to overturn previous court decisions. ‘They are simply trying to find a mechanism which deals fairly with the hundreds of cases that haven’t been considered by the Court of Appeal’, he says. ‘If there was another way of doing it, which didn’t involve legislation of this kind, then everybody would want that. But this is the only way that people can see it quickly and fairly delivering justice for the sub-postmasters.’

Moorhead and Hutchinson agree the scandal is a unique situation that calls for exceptional measures. ‘It’s the volume of people affected’, says Moorhead. ‘The fact that so many of them will not come forward to engage with the justice system, and the way the Court of Appeal has been dealing with the appeals, these all help justify the approach and make it clear that it is exceptional’, he says.

The proposed legislation is due to be passed within weeks and will apply to England and Wales only. The government has said conversations are ‘ongoing’ around introducing similar legislation in Scotland and Northern Ireland.

A Post Office spokesperson told Global Insight it would ‘await details and clarity’ about the proposals, while continuing to conduct a ‘proactive case review’ and make ‘strenuous efforts’ to trace those prosecuted who have not yet come forward.

Hutchinson says it’s now incumbent on the government to ensure the legislation leaves no room for doubt about its intentions. ‘What we need is a clear statement from this government that, in this instance, this legislation is exceptional, and that they recognise and respect the independence of the judiciary and the long, proud tradition of separation of powers between the legislature and the judiciary’, she says.

A public inquiry into the scandal led by retired High Court judge Sir Wyn Williams began in early 2021 and is expected to conclude by the end of September 2024. A spokesperson from Fujitsu, which built the Horizon IT system, told Global Insight its UK subsidiary was providing ‘full cooperation’ with the inquiry and would work with the government on any resulting ‘appropriate actions’.

Moorhead says the inquiry has shone a glaring spotlight on the independence and integrity of the legal profession and the management of legal risk in the corporate world. ‘What the evidence so far suggests is there have been problems with competence, ethical and professional conduct over many years – in-house, in private practice, both junior and senior lawyers’, he says. ‘But this isn’t just about the legal profession, it’s about how it relates to organisations and, particularly, business.’

These concerns are what prompted Moorhead to launch a three-year research project to help the legal profession – and those who regulate it – learn from the scandal. Researchers will speak to in-house and litigation lawyers, as well as victims of the scandal itself, to ‘develop tools and approaches’ to ensure past failings aren’t repeated.

The Solicitors Regulation Authority of England and Wales (SRA) and the Bar Standards Board are core participants in the ongoing public inquiry and have said they are following its progress closely. In January both regulators issued statements saying that evidence so far didn’t indicate any ‘ongoing risk to the public’ that required their action. The SRA is already undertaking ‘live investigations’ into several solicitors and law firms implicated in the scandal.

The subject of the IBA's Legal Policy & Research Unit's ongoing 'gatekeepers' project is ethics and the conduct of lawyers/law firms. For more information please visit https://www.ibanet.org/LPRU/Ethics

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