Judges failed postmasters who were wrongly convicted in at least a dozen cases in the country’s biggest miscarriage of justice, a former director of public prosecutions has said. 

Sir David Calvert-Smith, DPP from 1998 to 2003 and a retired High Court judge, was instructed by the Post Office to lead a review in 2020 of over 900  prosecutions of postmasters by the Post Office. 

Chairing a panel at the Bar Council’s conference in London on Saturday, on reforming private prosecutions in the wake of the scandal, he was asked if he thought that some judges had let down the sub-postmasters. Calvert-Smith replied: ‘Yes, I think that is certainly true in probably about a dozen of the cases I read, when I went through them – maybe more.’ 

lHe told the conference: ‘Surely a judge would have poked a bit more deeply into this rather than thinking “I’ve got a full list, I want to get on with the next case”.’ 

In February, the lady chief justice, Baroness Carr of Walton-on-the-Hill, rejected any suggestion that judges had been at fault. At her first press conference after being appointed she said: ‘I don’t accept that there is any basis for implicating the judiciary in any of these wrongful convictions, so far as I can see.’ 

She stressed that juries, not judges, decide guilt and, in cases were postmasters, represented by lawyers, pleaded guilty, it was ‘not for the judges to go behind that plea’. 

However barrister Flora Page, of 23 ES chambers who represented three postmasters in the Court of Appeal and is currently acting for more in the Post Office inquiry, told the bar conference that some judges had failed by not ordering disclosure of material that would have exposed the bugs and faults in the Horizon software. 

She highlighted the case of Seema Misra who was wrongly prosecuted while pregnant and sentenced to 15 months in prison for theft in 2010, before the Court of Appeal overturned her conviction in 2021. The judge refused several defence applications for disclosure by the Post Office regarding the functioning of the software. Page said that ‘every aspect of the system let [Misra] down’. In a ‘show trial’, which had been used by the Post Office and Fujitsu to justify the reliance on the Horizon system, she said ‘the judge unfortunately fell for it’.   

The on-going inquiry into the scandal has heard evidence of failings and alleged cover-ups by the Post Office and its lawyers, which led to the wrongful prosecutions and convictions. 

But the conference panel suggested that some defence lawyers might have been able to do more. Polly Sprenger, a specialist private prosecutor at Addleshaw Goddard, said: ‘The big safeguard that you have against prosecutorial excess is a defence lawyer. So where were they and was there anything that the defendant properly represented could have done in those circumstances?’ Page suggested that the scandal should act a reminder to defence lawyers to listen to their clients and ‘fight their corner’, even when what they are saying may sound improbable.

‘If there’s one thing that defence lawyers everywhere up and down the country need to remember, it is to go back to how it felt when you were first started defending … keep remembering that if your client says “no”, don’t strong arm them, don’t make then feel like they are under obligations’. She add: ‘When you’re offered a plea bargain, think about it and make sure that your client doesn’t feel any pressure to take that plea bargain to keep out of prison,’ as happened in many of the Post Office cases. 

Despite the in the Post Office cases, the panel stressed the value of private prosecutions, particularly to secure justice for victims of fraud and IP infringement when law enforcement agencies lack the resources to do. 

To prevent future  miscarriages of justice, Page suggested that there should be greater scrutiny of companies or organisations that have a standing internal private prosecution function. She said that internal prosecution functions should be required to report to the company’s main board at least annually, and they should be subject to a compulsory code of conduct and inspection by HM Crown Prosecution Service Inspectorate. 

 

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