Post Office scandal: Complexities of referring cases back to court

At the Criminal Cases Review Commission (CCRC), we independently investigate potential miscarriages of justice in England, Wales and Northern Ireland. Only the CCRC has the power to refer convictions or sentences back to the courts if we determine there is a real possibility they will be overturned. It is a power that we exercise responsibly and fairly.

In our 26 years of operation, the Post Office Horizon scandal is the most widespread miscarriage of justice we have ever investigated. It relates to former Post Office sub-postmasters, managers or counter assistants whose convictions of theft, fraud and false accounting were based on data produced by an unreliable computer system. To date we have referred 68 cases, and that number is steadily rising – with two more referrals being made today following the referrals of the convictions of Therese Gooding and Ian Davies.

Since the start of last year, we have also written to more than 300 people who were not already challenging such convictions. We have explained how to apply directly to the Court of Appeal for those people who can still appeal directly, and how to apply to the CCRC for those people who have previously appealed, or pleaded guilty in the magistrates’ court, or represent a convicted person who has since died.

A new dedicated hub on our website gives advice to potential Post Office applicants and explains that our service is free. Many people have contacted us to say they do not wish to challenge their conviction. It is right that we respect their wishes, whatever their reasons, not least because any challenge to a criminal conviction necessarily involves revisiting painful experiences. There is no time limit on an application to the CCRC and they can contact us later if they change their mind. 

Some commentators have asked why we don’t simply refer every single Post Office conviction in one fell swoop, or at least why we don’t automatically refer the convictions of those former Post Office staff who apply to us. There are two key reasons – both linked to our power to refer cases only if there is a real possibility that an appeal will succeed.

First, the law which governs our work, the Criminal Appeal Act 1995, requires us to carefully evaluate each individual conviction or sentence which comes before us to determine whether there is a real possibility that new evidence or argument will lead to a successful appeal. The bar is relatively low – a real possibility may be less than a probability or a likelihood - but each individual assessment is crucial to ensure the integrity and fairness of the review process.

The Court of Appeal has set a clear criterion for overturning convictions in Post Office Horizon cases. Convictions will only be overturned if the Horizon evidence was essential to the prosecution and conviction of the individual in question. In some cases the key evidence is independent of Horizon. Therefore, before making a referral, the CCRC must meticulously analyse the evidence presented in each case, ensuring that it meets the necessary threshold for reconsideration by the appeal courts. In many cases, there is very little material left from the original case so hearing directly from the convicted person can be critical to our decision.

Secondly, there is the vital procedural point that there can be no appeal unless there is someone to pursue it. If the person with the potentially unjust conviction or sentence chooses not to participate, an appeal cannot be considered. This presents a significant obstacle in cases where the affected person is unable or unwilling to engage in the appeals process. Where they have died, a family member may be able to act on their behalf, but where there is no-one interested in pursuing the matter, we cannot refer the case because there is no possibility of an appeal, successful or otherwise.

All of which means that convictions and sentences cannot be referred collectively or ‘en masse’, nor can applications to the CCRC be referred automatically without consideration of the particular circumstances. However, looking at each case individually and assessing all the relevant information also enables us to keep an open mind: there may be Post Office cases where the conduct of the investigation and prosecution was such that there is a real possibility of a successful appeal even though the case does not depend on evidence generated by Horizon.

The complexity of the Post Office Horizon cases and the intricacies of the CCRC's legal obligations highlight the challenges faced in referring every case simultaneously. While the desire for speed is understandable, rushing the referral process without proper evaluation could undermine the very purpose of the CCRC and jeopardise the chances of successfully rectifying any injustice suffered by the individual.

To ensure a fair and thorough review of each case, the CCRC must continue its meticulous assessment, maintaining a case-by-case approach. This approach is essential for upholding the principles of justice and guaranteeing that those affected by the Post Office Horizon scandal receive the careful scrutiny, and ultimately the remedy, they deserve.

Amanda Pearce is CCRC casework operations director