The miscarriages of justice in the Post Office Horizon cases were caused by the Post Office, its investigators and its lawyers. However, there are lessons also for the defence professions. This is the conclusion of a new report by the University of Exeter’s Post Office Project and Evidence-Based Justice Lab. It also identifies changes that should be considered by other criminal justice agencies, and those considering the future of the criminal justice system, to avoid the risk of further miscarriages in the future.
This report is based on data gained from 28 in-depth, semi-structured interviews with 35 participants, including 26 former sub-postmasters, six partners, two adult children and one sibling. Clear lessons emerge. It is a well-balanced review of the experiences of sub-postmasters involved in the scandal. They now have the benefit of hindsight but that makes them no less important.
The report recognises the pressures and difficulties under which the defence lawyers work but the astonishing number of guilty pleas, by a group now known to be innocent, must cause concern. The very limited evidence of any pro-active work by the defence in the cases described, and the lack of communication skills described in this report, are a cause for anxiety. There appears to have been little attempt to analyse the key factors in any of the offences alleged; the need for dishonesty in the offence of false accounting, to which most pleaded guilty, is generally ignored.
Many participants, whilst understanding the financial and systemic pressures faced by defence lawyers, describe a complete lack of explanation of the processes they would experience and a failure entirely to explain the consequences of a conviction on their future lives. Meaningful support was not made available. Most significantly and all too often solicitors did not take on board the instructions that they were being given by their clients or appeared to disbelieve them, accepted the prosecution’s case at its face value. Rather they moved immediately to trying to reach a settlement with the Post Office that would avoid a prison sentence for their clients. There was almost no discussion about the need for expert evidence.
The significance of the wish by clients, and their solicitors, to avoid immediate prison sentences should not be underestimated. In his expert evidence to the inquiry Duncan Atkinson KC identified the problem:
'So you have, on the one hand, a defendant saying "It must be the system," you have the prosecution’s evidence saying "It is not the system," and you then have to decide whether you allow your client to proceed to trial against that wall or whether you discuss with your client the possibility that a plea to something less than theft will keep them out of prison. And that’s a decision I wouldn’t – or a conversation I wouldn’t envy anybody'
The report correctly suggests that the pressures that flow from the Sentencing Council’s guideline on discount for guilty plea should be reviewed to insist on the need for the necessary disclosure be made before discount is lost.
So extreme is the pressure from the criminal justice system that the report suggests that the presumption of innocence is effectively lost. The Law Society must review its guidance to the profession to ensure that the reality of a vigorous defence is made available to clients. The fear of 'taking on' the Post Office described by so many participants in this research will be truly shocking to experienced practitioners.
Guidance is also required on the circumstances in which guilty pleas can be accepted, especially as the evidence is that many lawyers did not tell sub-postmasters that they should not plead guilty if they felt they were innocent, once the law had been explained. Guidance should establish a clearer baseline level of investigation that should be done by lawyers into a case both in terms of facts and relevant law, prior to the plea decision, especially where a client maintains innocence. The Law Society’s standards of competence for the Criminal Litigation Accreditation scheme do cover many of these areas of concern (the need to examine the law; to listen to clients; and communicate with them, especially explaining process and outcomes), but in the Horizon cases they were largely ignored. The standards, as reviewed, should be widely published.
In its original form peer review was designed to lift standards by identifying good practice, but it has been devalued by the Legal Aid Agency to become merely an audit tool. The original system was designed to ensure that records were kept of the charges preferred, the evidence in support of each, the client’s instructions (prior to advice on sentence), disclosure requirements, and the basis for any plea. The Law Society should consider taking over responsibility for the process, so that it applies to all firms undertaking criminal law work and not just those receiving public funding. The Society should re-establish the original purpose of peer review. Firms should be identified by their rating and the Law Society use this information to promote good practices. The report identifies the substantial problems that sub-postmasters had in finding suitable advice and representation.
The courts must give the defence time to do its work and be more understanding of applications for disclosure; but such applications must be made. No court, for instance, seems to have considered the failure by the Post Office even to produce tapes of interview so that they could be heard and if necessary transcribed. Issues around plea bargaining, so abused by the Post Office, must again be examined.
There is a constant demand for more efficiency but the report emphasises that time well spent by the defence at the start of the process may save significant costs later on and, more significantly, prevent hugely expensive miscarriages of justice of which the Horizon cases are the worst examples to date.
Anthony Edwards
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