Tuesday 4 February 2020

The CCRC, Subpostmasters and the Court of Appeal

The conclusion to the epic civil litigation of last year was significant. The Post Office coughed up £58m and an apology, but there is still a whole bunch of people with criminal convictions wanting to know what's going to happen to them.

I asked Gill Furniss, the shadow postal services minister to give me her perspective, and she said:
"A terrible injustice has been done to these public servants. Their lives were thrown into chaos and the stress and misery they were caused is unimaginable. Labour welcomes that these innocent people are now a step closer to having their wrongful prosecutions quashed. The Government must now hold a full inquiry into this scandal and lay our exactly how they will ensure all those affected get the answers and justice they deserve."
Last week the Criminal Cases Review Commission wrote to 34 former Subpostmasters and former Post Office workers to let them know they are planning to convene a meeting of CCRC commissioners in March 2020. This meeting will decide whether or not to recommend their cases be sent to the Court of Appeal.

In the same letter, the CCRC also mentioned that another "around 20" Post Office applicants had been accepted into the process "recently".

The CCRC told me "recently" meant since the 16 Dec judgment and "around 20" actually meant 22. There was some speculation that the new touchy-feely Post Office might have, in the spirit of co-operation and openness referred these cases themselves, but the CCRC said this was not the case. Either way there are now 56 Post Office cases before the CCRC, all of which will be considered in March.

How did we get here?

The CCRC have been sitting on its initial tranche of Subpostmaster cases since 2015, when it was first suggested to them that multiple major miscarriages of justice may have occurred.

In their latest annual report, (published in July 2019), the CCRC said:
"A case is counted as long running if two years has elapsed since the date of its allocation for review and a final decision has not been issued. We aim for less than three per cent of cases to reach this stage... 27 of the cases on the long running list are closely connected in that they are all cases involving the Post Office Horizon computer system. These cases are being reviewed together, as overarching issues, expert evidence and current trials in the civil court impact on them all."
As the CCRC admitted, this means... "we have not met our target for long running cases."

There have been a few bumps in the road. Back in 2018 the CCRC told applicants they were minded to make a decision about referring their cases to the court of appeal in the autumn of the same year. This would have meant ignoring the huge volumes of pertinent information just about to surface at the first Bates v Post Office High Court trial which was due to start on 7 November 2018.

Lord Arbuthnot (one of the prime movers in getting the CCRC to accept the original tranche of Subpostmaster applicants) was alert to the inadvisability of such a course of action. On hearing the CCRC was potentially about to make a decision on its Subpostmaster cases, he wrote to them saying:
"I would worry that any decision not to reopen these criminal cases, before the allegations have been examined in the cases that are currently before the [High] court, might be subject to judicial review."
The CCRC listened. In subsequent letters to applicants, they indicated they were prepared to wait for the first trial judgment, which was handed down on 15 March 2019, and then the second, which appeared on 16 December 2019.


And that's where we are now. In March 2020 (exact date tbc), at least three CCRC commissioners will meet to discuss the possibility of the now 56 cases before them being referred to the court of appeal.

Multiple CCRC commissioners are only asked to convene if there "seems" a possibility of an applicant's case being referred to the court of appeal. This may seem like a low bar, but if the CCRC's case review managers believe there is no possibility of the Subpostmasters having their convictions overturned, their cases would only be considered by a single commissioner.

Case review managers and the commissioners are looking for new evidence or a new legal argument which could render the basis of any conviction unsafe.

Subpostmasters with criminal convictions may argue that many of the judge's findings in the civil litigation represent a new (and definitive, legal) interpretation of the Subpostmaster contract. For instance, in paragraphs 820 and 821 of the common issues trial judgment, Fraser J rules:
"if and insofar as, during or at the end of any branch trading period, any SPM [Subpostmaster] contacted the Helpline in relation to any shortfall, discrepancy or disputed TC [transaction correction], the Branch Trading Statement for that period cannot be treated as an account rendered by an agent to the principal which can only be opened up if the SPM can demonstrate a mistake...The issue of an SPM as an agent deliberately rendering a false account to his or her principal, in relation to any such Branch Trading Statement for such a period therefore simply does not, in my judgment, arise."
The Post Office prosecuted many people for false accounting on the basis that a branch trading statement generated by a Subpostmaster on the Horizon system was always a "settled account", notwithstanding any dispute or discrepancy previously reported to the Helpline.

If, as the judge has now ruled, many of these settled accounts were not settled accounts, the lawfulness of any prosecution for false accounting must now be in question.

Of course not every Subpostmaster case before the CCRC involves false accounting and every circumstance is different. It's not known if the CCRC have found common themes running through every prosecution or if they are divided into batches with different themes applying to specific cases.

It could be something as simple as the Post Office's repeated denial (until 2017) that remote access to branch accounts was possible. Now the Post Office has accepted that both it and Fujitsu had the power to access branch accounts, it follows that Subpostmasters were not solely responsible for them.

Another issue in play is Horizon's robustness. Many of the convictions under consideration were achieved between 2000 and 2010 on the basis of computer evidence. On 16 Dec 2019 Fraser J ruled that during this period, Horizon was not "remotely robust" and prone to errors which may well have had an impact on branch accounts - the evidence used as a basis for prosecution. Again - this could be a reason a case might get referred to the committee of commissioners.

There is another striking problem the CCRC currently faces. It has been reviewing some Subpostmaster cases for five years. Yet now it appears to be proposing to prepare some cases for the March commissioners' meeting in five weeks. Is that fair? What if more applicants come forward, too late for March's meeting? How will they be dealt with? Would that involve potential negotiation with the court of appeal? A rolling programme of commissioners' meetings? Or would all further applicants be told to wait until the court of appeal has dealt with the first tranche of referrals - presuming some or all actually get referred.

The court of appeal process

CCRC commissioners will only refer cases to the court of appeal if they believe there is a "real possibility" that the convictions in question could be quashed.

If the commissioners do decide to refer to the court of appeal, the reasons for the referral will be set out in reasonably comprehensive "Statement of Reasons".

On receiving this statement of reasons, the court of appeal is obliged to accept the referred cases, and the applicants become appellants.

Appellants have their cases considered by three appeal court judges. In a normal case the judges would review the evidence as referred by the CCRC and make a decision (with or without a hearing).

Appellants may wish to add extra evidence to support their case, and whilst it is very unusual, it is perfectly possible that the respondent (usually the CPS, but in all Subpostmaster cases - the Post Office) have the right to oppose the appeal. If either of those circumstances arise there will need to be a hearing.

Bearing in mind there are 56 Subpostmaster cases being considered, if all of them are referred to the court of appeal it is extremely unlikely they will all be heard at once.

Some appellants may want the judges to consider extra evidence to bolster their chances, some may not. The Post Office might want to contest some or all of the cases. Some cases may have been referred for different reasons and the court of appeal may want to consider them in separate cohorts. All this affects the speed at which a case can proceed.

I spoke to someone who knows a lot about this sort of thing. He said it can take between three to nine months for a relatively simple single case to be heard from CCRC referral to court of appeal ruling. If the court of appeal does end up considering several dozen cases, no one has any idea how long it could take. Frankly we are in unchartered territory.

Whilst the CCRC has referred multiple cases relating to specific issues over a period of time (the convictions of asylum seekers for example), the Subpostmasters would constitute the largest single cohort of cases referred at once (if, indeed, they are all referred).

If the applicants get through enough hoops to have their convictions quashed they might have an opportunity to bring a case against the Post Office for malicious prosecution, which would potentially allow them to recover damages.

As per the Kingsley Knapley website:
"Claims for malicious prosecution enable a defendant to recover damages where he or she has been wrongly prosecuted under an improper motive. To successfully pursue a claim under the tort of malicious prosecution, the claimant would need to prove each of the following limbs: 
- the matter terminated in the claimant’s favour (i.e he/she was acquitted); 
- the prosecution had been brought without reasonable and probable cause; 
- proceedings were instituted or carried on maliciously; and 
- the claimant suffered damage as a result."
A quashed conviction would satisfy the first "limb" of the above. Proving the third could open up a whole new chapter in this story, which I will continue to cover on this blog.

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