Wednesday 3 June 2020

CCRC requests formal review of private prosecutions

In the light of apparent abuses by the Post Office, the Criminal Cases Review Commission has asked both the Attorney General and the Ministry of Justice Select Committee to undertake a formal review of the rules around private prosecutions.

The CCRC also referred a further eight Postmaster cases to the Court of Appeal, citing abuse of process. This brings the total number of referrals so far to 47, the largest in the CCRC's history. The first tranche of 39 referrals was made in March.

One such referral is long-time campaigner Ian Warren - one of the Subpostmasters present at the first meeting of the Justice for Subpostmasters Alliance in Fenny Compton in November 2009. Ian told me:

“After 12 long years of mental torture, the appalling kick-back of not being first among those sent through to appeal has just been replaced by an emotional tidal wave beyond description“

Ian is a happy man, but not everyone has made it through. Of the remaining 14 Postmaster cases the CCRC is dealing with, seven have been told the CCRC's commissioners have taken a provisional decision not to refer them to the Court of Appeal (which will no doubt be devastating for the individuals concerned), and a further seven will have to wait whilst the CCRC continues investigating.

One person in the latter group texted me last night to say:

"This waiting period is really causing anxiety, like waiting for exam results or the outcome of a driving test. This waiting period is worse. "

All seven whose decisions have been deferred for further investigation applied to the CCRC after the conclusion of the group litigation in December 2019.

In the Executive Summary of two Statements of Reasons I have seen, the CCRC says:

"The CCRC considers that there are a number of findings in the High Court judgments which, taken together, are of significance to the safety of the convictions in the 35 cases discussed in this Statement of Reasons. These are set out in detail below. However, in the CCRC’s view, the most important points are:
1) That there were significant problems with the Horizon system and with the accuracy of the branch accounts which it produced. There was a material risk that apparent branch shortfalls were caused by bugs, errors and defects in Horizon.
2) That the Post Office failed to disclose the full and accurate position regarding the reliability of Horizon.
3) That the level of investigation by the Post Office into the causes of apparent shortfalls was poor, and that the Post Office applicants were at a significant disadvantage in seeking to undertake their own enquiries into such shortfalls.
The CCRC considers that the findings of the High Court give rise to two cogent lines of argument in relation to abuse of process. The CCRC has concluded that at least one of these lines of argument applies in each of the 35 cases which are considered in this document. The two lines of argument are that, in the context of the evidence in the individual case:
1) The reliability of Horizon data was essential to the prosecution and conviction of the Post Office applicant and that, in the light of the High Court’s findings, it was not possible for the trial process to be fair.
2) The reliability of Horizon data was essential to the prosecution and conviction of the Post Office applicant and that, in the light of the High Court’s findings, it was an affront to the public conscience for the Post Office applicant to face criminal proceedings."
Paragraph 68 of the CCRC Statements of Reasons in cases which have been referred to the Court of Appeal says:
“…in the context of the Post Office's combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored. The CCRC further considers that this concern applies to POL’s approach throughout the period 2001 to 2013, that is, the timespan of the convictions which are considered in this Statement of Reasons.”
The CCRC says while the Post Office Limited’s combined status as victim, investigator and prosecutor is not part of the legal basis of its referrals to the appeal courts, it is firmly of the view that a formal review should be conducted into when and how it ought to be permissible for prosecutions to be brought in such circumstances.

Today's referrals:

Harjinder Butoy – Theft – 25/9/08 – Nottingham CC
Margery Williams – false representation 16/2/12 -Caernarfon CC
Ian Warren – Theft – 30/3/09 Chelmsford CC
David Blakey – Theft and false accounting -17/12/04 – Guildford CC
Tahir Mahmood – False accounting – 16/12/05 – Birmingham CC
Julie Cleife – false representation – 26/10/10 – Basingstoke MC
Gillian Howard – False accounting – 26/4/11 – Bradford CC
David Yates – Theft and false accounting – 31/10/03 – Guilford CC

There is more info on the CCRC website.

The Post Office says:
“We are leaving no stone unturned for those postmasters with criminal convictions that may be affected by the High Court’s findings in group civil litigation that we jointly settled with claimants in December 2019.

“We have been working closely with the Criminal Cases Review Commission since applications were first made to them and we will be, similarly, assisting the Courts regarding cases referred for appeal.  Alongside this, we are conducting an extensive review of all relevant historical convictions, dating back to 1999, to identify and disclose material in accordance with Post Office’s duties as prosecutor.

“We will examine the detailed Statement of Reasons very carefully.  As the Statement of Reasons is part of the formal appeals process and deals with individual criminal cases, we will not be in a position to provide a more detailed public response for some time, while we carry out the necessary and complex work to assist the criminal justice process.

“The Post Office, under new leadership, has taken determined action to address the past and provide fundamental reform for the future.

“We have made wide-reaching improvements in the support we provide, from initial recruitment and training, through to the support for daily transaction accounting.  These are being set out for every postmaster, detailing responsibilities and commitments which support them to build thriving businesses, serving the UK’s communities.

“Working closely with postmasters, improvements made include tailored, personal support for individual Post Office branches; a new support centre to resolve queries more quickly and effectively and design changes to transactions on Horizon based on postmaster feedback.”


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