Post Office scandal: lawyers in the frame

I dropped into my local Post Office a couple of months ago to despatch a small but valuable item. The staff were friendly and my package reached its destination on time. A few days later, I glanced at the receipt I’d been given. ‘Horizon Certificate of Posting’, it read.

A quarter of a century has passed since Post Office branches began using a new computerised accounting system called Horizon. Software errors led to shortfalls for which postmasters were wrongly prosecuted. It shows remarkable insensitivity for the Post Office to have retained a brand name associated with the most wide-ranging miscarriage of justice ever to have been put right by the courts.

Although the scandal itself has now received extensive publicity – there was a four-part drama on ITV last week as well as a documentary – making amends has become ever more complicated.

The 555 postmasters who exposed the scandal by suing the Post Office received more than £42m plus costs when their claims were settled in 2019. But around £31m of this sum went to litigation funders, leaving the surviving claimants with little compensation for their shattered lives.

Worse still, they were ineligible to join the historic shortfall scheme that the Post Office had set up to compensate other affected postmasters. So in 2022 the government agreed to set up a new scheme under which the original claimants would receive similar levels of compensation.

In the short term, it was possible for ministers to authorise these payments under annual legislation known as the appropriation acts. But a deadline was looming this summer and MPs approved new legislation in the last few hours before parliament rose for the Christmas recess. Once the Post Office (Horizon System) Compensation Bill has been passed by the Lords, it will ensure that payments are not blocked.

During the Commons debate on 19 December, a Labour MP expressed concern that the courts had cleared only 93 of an estimated 900 defendants prosecuted by the Post Office and other public bodies. Some had died; others simply wanted nothing more to do with the courts.

Kevan Jones proposed an amendment under which everyone convicted on Horizon data – unless there was ‘clear, compelling and corroborated evidence’ – would receive the same level of compensation, whether they had appeared before magistrates or in the Crown court and whether their convictions were overturned or not.

Jones is also a member of an independent board that advises ministers on compensation arrangements, along with the former MP Lord Arbuthnot and two specialist legal academics, Christopher Hodges and Richard Moorhead. A few days earlier, the advisory board had urged the justice secretary to go even further and arrange for all 900 Horizon-related convictions to be overturned.

‘A small minority of these people were doubtless genuinely guilty of something,’ the board acknowledged. ‘However, we believe it would be worth acquitting a few guilty people – who have already been punished – in order to deliver justice to the majority, which would not otherwise happen.’

Kevin Hollinrake, a minister at the Department for Business and Trade, recognised  the constitutional challenges involved in clearing and compensating everybody caught up in the scandal. But he had requested legal advice and he said the government was ‘determined to make it easier for people to come forward and for convictions to be overturned’. Around £138m has now been paid to more than 2,700 claimants across the three Post Office compensation schemes.

Meanwhile, the public inquiry chaired by Sir Wyn Williams (pictured) is steadily uncovering what went wrong. Gareth Jenkins, the computer engineer responsible for the Horizon system, was criticised by Duncan Atkinson KC, a leading independent prosecutor who was commissioned by the inquiry to give expert evidence. Atkinson said that Jenkins had failed in his duty to disclose material that undermined his opinion. 

But who was to blame for that? Was the real problem that lawyers had not told Jenkins he was being called as an expert witness, with all the responsibilities that entailed? And was that because Post Office lawyers, some of whom had spent decades working in an organisation that had been prosecuting people for hundreds of years, had very little idea of the safeguards that had become standard practice in the rest of the criminal justice system?

Between 1989 and 1991, the courts cleared a number of people who had been wrongly convicted of involvement in IRA terrorism during the mid-1970s. A royal commission recommended the creation of the Criminal Cases Review Commission, which started work in 1997. It was a public acknowledgment that evidence is not always what it seems, that courts can convict the innocent and that – whatever duty lawyers may owe their clients – they owe a higher duty to justice.

It’s a message that some lawyers working for the Post Office may not have grasped.

joshua@rozenberg.net