How soon is now... a quick post on what's wrong with the Post Office Appeal cases

Parliament, and we are told, soon the Senior Judiciary are agonising over how to deal with the hundreds of outstanding convictions in the Post Office Scandal. I sit on the Horizon Compensation Advisory Board. Our Chair’s letter to the Lord Chancellor has set out why we think immediate steps to quash all convictions should be taken.

I’m not going to rehearse all the arguments and why we think the legitimate concerns about our proposals can and should be met. But I do want to add one point of general interest. That point also addresses the extent to which some would like to portray the hear of the Post Office Scandal as having occurred in a different decade.

The Court of Appeal’s approach to criminal appeals is limited by its generally cautious appeal tests and approach to evidence on the safety of conviction. They are also limited by their own decisions in the cases of Hamilton and following cases.

I want to concentrate on Hamilton because I think the case the Post Office put before the court was seriously flawed and their handling of it is an indication that our mistrust in them as an organisation is not historic.

You will probably know Hamilton found that in the majority of cases before the court the appeals were quashed on two grounds. The second ground, an affront to public justice, was the most serious one.

What is less well known, is that the Post Office tried to resist the Court Appeal hearing Ground 2 in November 2020. They did so knowing that if they were successful, the evidence of serious wrongdoing available to the court (the two Clarke advices referring to dodgy expert evidence and shredding of documents) would be less likely to be made public.

They were trying to contain the reputational damage and if they had succeeded there is a good chance the Post Office Scandal would have disappeared off our radars forever. It would certainly have been more of a damp squib.

The second point is that the Post Office then resisted Ground 2 on most of the individual cases before the Court of Appeal. Only conceding it in a handful of cases, such as Jo Hamilton’s own case. This was damage limitation strategy 2. Okay, the PR line would have gone, we were a terrible prosecutor but only in a tiny number of cases. They resisted Ground 2 partly on the basis that prosecution misconduct was limited to a particular period of time.

What has emerged only recently is that the solicitors acting for the Post Office took the unusual but professionally proper (and to be applauded) step of reporting Post Office inhouse lawyers for misconduct between 1999-2013. These concerns in other words were not time-bound. The report was not disclosed to the appellants as far as we can tell from public information.

This suggests to me the court may not have been fully aware of the misconduct of PO lawyers in the handling of the prosecutions. Whether they should have been as a matter of law is a question for another day, but it illustrates the Court’s judgment was necessarily based on a limited, more rosy picture of prosecution practice than it should have been.

There is an argument that the basis on which the case was put before the Court of Appeal was misleading as a result. Others aspects of the cases presentation and handling are already before the Post Office Inquiry, which I have written about elsewhere and will not repeat now.

This may all mean that the handling of the Court of Appeal case by the Post Office was another affront to public justice.

Those arguments about the limited view the Court of Appeal had of the convictions are multiplied many times by the evidence the Inquiry heard in the lead-up to Christmas. That revealed the prosecution failure to be endemic and to extend beyond the Post Office to (some of) those it instructed in private practice.

It’s no wonder that victims of this saga are sceptical of the justice system and reluctant to come forward. The events in Hamilton in 2020 and 2021 raise serious questions about the Post Office behaviour then. Of course Bonusgate and the continuing problems with disclosure (a hearing is due on Friday) suggest problems continue to this day.