Dominic Grieve QC is a former Attorney General and MP for Beaconsfield.
Last week’s announcement that the Government intends to enact primary legislation to quash all guilty verdicts on postmasters convicted of misappropriation of monies on the basis of evidence from the Horizon computer system is certainly an emphatic assertion of the principle of parliamentary sovereignty. Faced with an appalling scandal that has blighted the lives of hundreds through miscarriages of justice, the Government has chosen to cut through all legal process to both exonerate and compensate those who may have been affected, by passing a statute through Parliament. Many have welcomed the decision particularly as Mr Bates v The Post Office has awakened a wider public to the enormity of what has happened.
The move is, however, unprecedented and affects a key principle of our unwritten constitution concerning the separation of powers. Parliament enacts laws but their interpretation and enforcement is a matter for an independent judiciary and where relevant the protection offered by trial by jury. If a miscarriage of justice occurs, mechanisms exist through the Criminal Cases Review Commission (CCRC) and the Court of Appeal for the matter to be revisited-something that has already happened in some of the Horizon cases. In many of these, the convictions have been quashed. In others however the convictions have been upheld as other compelling evidence of guilt was available.
The intention of the Government is that all of these cases too will have the convictions quashed as well as those where no review has yet taken place. Compensation will be made available to all as well, irrespective of a previous failure to get a conviction set aside on appeal.
Doing a proper review of an individual case is inevitably going to take time because it requires looking properly at the evidence. But if the resources of the CCRC are inadequate at present, there is nothing to stop the government expanding it or indeed setting up an extraordinary Commission to deal just with these cases-there are plenty of retired judges and others who could facilitate this task. If the role of Horizon in the conviction is clear, as is its fallibility, such cases ought not to be particularly complex to process. Those whose convictions are quashed by such a process enjoy the benefit of true exoneration and not an outcome based on a political act which sets a deeply uncomfortable precedent for political interference in the decisions of the courts.
The administration of justice and political acts are all too often conflated in countries where the “rule of law” is merely “rule by law”. It is only a little over two hundred years ago that Parliament passed its last Act of Attainder, effectively circumventing the criminal justice system to criminalise an individual without a trial, on the basis of notoriety. As a principle, quashing a conviction by statute rather than by going through the courts is simply the reverse of the same coin. The Government’s best argument for doing so is that, it is said, that in some cases the material for doing a review is no longer available. If so, I can see how the course of action taken may be justified, but the Government must also work to ensure that such a controversial measure is never needed again.
That in turn raises all the questions of how these miscarriages happened. We will doubtless get a more complete picture when the public inquiry is complete. But there are already some uncomfortable issues to be addressed.
The right to bring a private prosecution to ask the courts for the enforcement of the criminal law against an alleged offender is an important safeguard against the state enjoying a monopoly of criminal law enforcement. But central to any prosecution is that the prosecutor must act as “minister of justice” and not just as a “hired gun”. There is a professional duty on every lawyer involved in bringing a private prosecution, just like a public prosecution, to have that issue in mind at all times, particularly over issues of disclosure of material or any other matter which might undermine the prosecution case and the same has to be the case for all involved in the investigation. It is clear that in the Horizon cases this duty was not in practice being fulfilled.
Some argue that the right to bring a private prosecution should be abolished. But if this is done, where are the resources for public prosecutors to take up the slack? It is noteworthy that the use of private prosecutions is growing in some areas, particularly to take action over serious fraud and the theft of intellectual property and IT matters. If it is banned, then criminals in these fields, important for our economy, will enjoy much greater impunity. The CPS already have the power to take over private prosecutions if it is considered to be in the public interest and to terminate them after takeover if it considers it right to do so. Following past problems over the fairness of all its prosecutorial decisions, the RSPCA voluntarily relinquished the conduct of all its prosecutions to the CPS. But to take over all private prosecutions will require much greater resources and also place a greater burden on the police and other enforcement agencies. There is nothing to suggest at present these extra resources would be made available.
Although Ministers like to praise the quality of our criminal justice system, the evidence is overwhelming that it is under great strain through chronic underfunding going back decades. Some of the stories that have emerged from the Horizon scandal, if accurate, suggest that some postmasters did not get adequate representation. To save money, we have deliberately set a high bar of effectively proving innocence for obtaining compensation for a miscarriage of justice and will now ignore that high bar to compensate the postmasters – yet without changing the rule back for others. Pressure from Parliament in recent years has been to make it easier to secure convictions. The assumption that a computer system is reliable unless proven otherwise, reversing the burden of proof in criminal cases, lies at the heart of the Horizon scandal. This was not the case before 1999. Should it be continued?
At present the focus seems to be on identifying individual “culprits” and vilifying them as retribution for the wrongs visited on the postmasters. Such “culprits” may exist, but the issue looks much more like one of systemic failures. We need to address those issues if we want to ensure and sustain fairness and equality of arms in our criminal justice system.
Dominic Grieve QC is a former Attorney General and MP for Beaconsfield.
Last week’s announcement that the Government intends to enact primary legislation to quash all guilty verdicts on postmasters convicted of misappropriation of monies on the basis of evidence from the Horizon computer system is certainly an emphatic assertion of the principle of parliamentary sovereignty. Faced with an appalling scandal that has blighted the lives of hundreds through miscarriages of justice, the Government has chosen to cut through all legal process to both exonerate and compensate those who may have been affected, by passing a statute through Parliament. Many have welcomed the decision particularly as Mr Bates v The Post Office has awakened a wider public to the enormity of what has happened.
The move is, however, unprecedented and affects a key principle of our unwritten constitution concerning the separation of powers. Parliament enacts laws but their interpretation and enforcement is a matter for an independent judiciary and where relevant the protection offered by trial by jury. If a miscarriage of justice occurs, mechanisms exist through the Criminal Cases Review Commission (CCRC) and the Court of Appeal for the matter to be revisited-something that has already happened in some of the Horizon cases. In many of these, the convictions have been quashed. In others however the convictions have been upheld as other compelling evidence of guilt was available.
The intention of the Government is that all of these cases too will have the convictions quashed as well as those where no review has yet taken place. Compensation will be made available to all as well, irrespective of a previous failure to get a conviction set aside on appeal.
Doing a proper review of an individual case is inevitably going to take time because it requires looking properly at the evidence. But if the resources of the CCRC are inadequate at present, there is nothing to stop the government expanding it or indeed setting up an extraordinary Commission to deal just with these cases-there are plenty of retired judges and others who could facilitate this task. If the role of Horizon in the conviction is clear, as is its fallibility, such cases ought not to be particularly complex to process. Those whose convictions are quashed by such a process enjoy the benefit of true exoneration and not an outcome based on a political act which sets a deeply uncomfortable precedent for political interference in the decisions of the courts.
The administration of justice and political acts are all too often conflated in countries where the “rule of law” is merely “rule by law”. It is only a little over two hundred years ago that Parliament passed its last Act of Attainder, effectively circumventing the criminal justice system to criminalise an individual without a trial, on the basis of notoriety. As a principle, quashing a conviction by statute rather than by going through the courts is simply the reverse of the same coin. The Government’s best argument for doing so is that, it is said, that in some cases the material for doing a review is no longer available. If so, I can see how the course of action taken may be justified, but the Government must also work to ensure that such a controversial measure is never needed again.
That in turn raises all the questions of how these miscarriages happened. We will doubtless get a more complete picture when the public inquiry is complete. But there are already some uncomfortable issues to be addressed.
The right to bring a private prosecution to ask the courts for the enforcement of the criminal law against an alleged offender is an important safeguard against the state enjoying a monopoly of criminal law enforcement. But central to any prosecution is that the prosecutor must act as “minister of justice” and not just as a “hired gun”. There is a professional duty on every lawyer involved in bringing a private prosecution, just like a public prosecution, to have that issue in mind at all times, particularly over issues of disclosure of material or any other matter which might undermine the prosecution case and the same has to be the case for all involved in the investigation. It is clear that in the Horizon cases this duty was not in practice being fulfilled.
Some argue that the right to bring a private prosecution should be abolished. But if this is done, where are the resources for public prosecutors to take up the slack? It is noteworthy that the use of private prosecutions is growing in some areas, particularly to take action over serious fraud and the theft of intellectual property and IT matters. If it is banned, then criminals in these fields, important for our economy, will enjoy much greater impunity. The CPS already have the power to take over private prosecutions if it is considered to be in the public interest and to terminate them after takeover if it considers it right to do so. Following past problems over the fairness of all its prosecutorial decisions, the RSPCA voluntarily relinquished the conduct of all its prosecutions to the CPS. But to take over all private prosecutions will require much greater resources and also place a greater burden on the police and other enforcement agencies. There is nothing to suggest at present these extra resources would be made available.
Although Ministers like to praise the quality of our criminal justice system, the evidence is overwhelming that it is under great strain through chronic underfunding going back decades. Some of the stories that have emerged from the Horizon scandal, if accurate, suggest that some postmasters did not get adequate representation. To save money, we have deliberately set a high bar of effectively proving innocence for obtaining compensation for a miscarriage of justice and will now ignore that high bar to compensate the postmasters – yet without changing the rule back for others. Pressure from Parliament in recent years has been to make it easier to secure convictions. The assumption that a computer system is reliable unless proven otherwise, reversing the burden of proof in criminal cases, lies at the heart of the Horizon scandal. This was not the case before 1999. Should it be continued?
At present the focus seems to be on identifying individual “culprits” and vilifying them as retribution for the wrongs visited on the postmasters. Such “culprits” may exist, but the issue looks much more like one of systemic failures. We need to address those issues if we want to ensure and sustain fairness and equality of arms in our criminal justice system.