The government’s Post Office (Horizon System) Offences Bill, which will shortly begin its detailed scrutiny in the Commons, raises unprecedented constitutional issues. But that was just about the only view of the bill shared by four witnesses who gave oral evidence to the Commons justice committee on Tuesday. Three of them are leading academic lawyers – and I was the fourth.
The bill applies only to ‘relevant offences’ of dishonesty that were prosecuted in England and Wales by the Post Office or the Crown Prosecution Service. Every conviction that meets further conditions set by parliament will be quashed on the day the bill is passed – just as if it had been overturned by a court. But the test will be very different.
To be cleared by the Court of Appeal, you had to show that your conviction depended on the reliability of data from the Post Office’s Horizon system. If computer data was not regarded as essential to the prosecution case because there was other evidence, your appeal would be dismissed.
Now, though, so long as your conviction has never previously reached the Court of Appeal, it will be quashed if, broadly speaking, you were helping to run a Horizon-equipped post office and your conviction was connected to post office business.
Is this unprecedented intervention by parliament justified? Dr Hannah Quirk, reader in criminal law at King’s College London, was uneasy about the government’s involvement. If parliament was going to respond to public opinion by exempting individuals from the criminal law, that would be deeply dangerous in a democracy. Her biggest concern was that this would set a precedent.
Dr Robert Craig, lecturer in law at the University of Bristol, disagreed. The legislation was not only justified but necessary. In his view, the entire process had been ‘an affront to the conscience of the court’. He would have gone further and acquitted postmasters whose cases had been turned down by the Court of Appeal.
Wouldn’t that clear offenders who had been safely convicted on non-Horizon evidence? ‘It’s a good thing that some guilty people are going to get away with this,’ Craig said, ‘because this is a systemic threat that the Post Office has posed.’
MPs were worried that all sorts of people would now demand to be cleared by legislation. But Craig believed parliamentary involvement was appropriate. ‘We want to reduce people’s desire to go rushing off to court,’ he explained.
There was broad support for the bill from James Chalmers, regius professor of law at the University of Glasgow. But he drew attention to a flaw: because acquittals would take immediate effect, public records would become inaccurate as soon as the bill became law.
It’s true that the secretary of state – currently Kemi Badenoch – will then have to take ‘all reasonable steps’ to identify the convictions that have been quashed. Because records are likely to be incomplete, she must consider any claim that a named individual comes within the legislation. Once she is satisfied of that, her officials will notify the convicting court and it will then arrange for criminal records to be updated.
But even though the criteria in the bill are ‘intended to be unambiguous’ and capable of being applied by civil servants ‘without any element of judgement or discretion’, there are bound to be arguments over borderline cases.
Dr Kieran Mullan MP asked what would happen to a postmaster who had been caught stealing money from the till. Was the defendant ‘carrying on the Post Office business’ at the time? Probably yes. But was the offence committed ‘in connection with carrying on’ the business? The committee seemed to think the bill was more ambiguous than the government had hoped and Quirk suggested the job of deciding whether an individual case was covered by the legislation could be better managed by the Criminal Cases Review Commission.
Craig mentioned what strikes me as a paradox in the government’s scheme – although I’m told the number of people affected is small. If the CCRC thought there was a ‘real possibility’ that your conviction would be quashed but the Court of Appeal then decided otherwise, you will not be cleared by the new legislation. But if the commission thought your case was too weak to refer – perhaps because Horizon data was corroborated by other evidence – you will now be acquitted.
We know ministers want to avoid treading on the judges’ toes. But it was the wrong approach, said Craig, because our legal system was not based on a pure separation of the powers. ‘This is a paradigm example of parliament acting correctly under our system to step in and fix a mistake in the common law,’ he said.
That’s something we have seen done before, though never in this way. It may be messy – but at least it’s quick.
joshua@rozenberg.net
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