The Post Office Scandal: A Prosecuting Barrister’s Regret

It was over 10 years ago now, perhaps longer, when I received a brief to represent the Post Office in proceedings against one of their sub-postmasters.

The papers are long gone, and the actual facts of the case have been deleted from my memory by the weight of all the cases that I’ve done since.

But there are a couple of things that I do remember – first, I recall being surprised to receive instructions from the Post Office: I was used to prosecuting for the Crown Prosecution Service (CPS), but instructions from other organisations were unusual for me. I recall the font and style in which the papers were presented being different from the briefs I was used to getting. I also recall that when I stood up in court to open the case, the Judge asked me to remind him what powers of prosecution the Post Office possessed – which had me rummaging through the small print of Archbold, the criminal lawyer’s Bible.

From memory the evidence contained in the papers comprised of a number of formal, slightly generic expert statements explaining the way in which the Post Office accounting system was organised and how, in this instance, there were discrepancies between the centralised accounting system and the money received by the sub-postmaster.

There was an interview in which the sub-postmaster defendant vehemently denied the offence.

The sums involved where not huge relative to the types of thefts and frauds which pass through the courts, though, of course, for the accused, the sums they were wrongly accused of stealing were catastrophic.

At this stage – let me point out, that as barristers, we act upon instructions. When we receive papers and statements, we do so trusting that the person who has sent them has done so in good faith, be it a high street solicitor or the CPS. As such, even though, there was no evidence of what had happened to ‘stolen’ money in the papers, and the defendant was (again from memory), an individual of impeccable character, with a number of years’ experience as a sub-postmaster, with no apparent motive to suddenly take money from the till, I would have read the expert evidence, and accepted on face value the assertion that this individual had dishonestly taken money that didn’t belong to them.

Although I can’t be sure of this, the fact that I have no memory of the matter proceeding to trial, suggests that the defendant in my case entered a plea of guilty.

Again, I’m surmising, but this will have been on advice from their own lawyers that the evidence was overwhelming and that a guilty plea would save them from a custodial sentence.

This is advice I have given to many defendants over the years – and, like every other barrister, it is always delivered with the caveat that an innocent person should never plead guilty if they haven’t done anything wrong, and that I will respect their plea whatever it is.

People usually assume that an innocent person would never plead guilty to an offence they hadn’t committed – but the reality is that faced with the prospect of prison or liberty, many people will hold their nose and accept guilt.

It’s not something we in the legal profession allow ourselves to dwell on; like the verdict of a jury, our role is not to judge, it is to advise and set out clearly the options that are open to our client, so dwelling too long on the repercussions of our client’s decision, or the verdict of the jury would only send you into a spiral of moral confusion.

However, to discover, years later, that you played a part in what is clearly a systemic failure of the Criminal Justice System, hurts.

I do not know what happened to the person I prosecuted, I can’t even say for certain if they were actually guilty of the offence or not – but I do know that, like every other barrister, I take pride in doing the job properly and fairly and ensuring that anyone who appears before a court of law charged with a criminal offence is there because the evidence is sound and properly obtained and that the process is transparent, allowing the individual every opportunity to defend themselves. The idea that I may have presented evidence before a court of law that was wrong is sickening and I am ashamed of that.

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The challenge now, is twofold: first, ensuring that it never happens again, and second, ensuring that those affected by this miscarriage are given proper compensation.

With regard to the first challenge, there is undoubtedly a strong argument to change the ways in which some organisations are allowed to prosecute.

The overwhelming majority of cases that appear in our courts are investigated by the police and then prosecuted by the Crown Prosecution Service – despite being over-stretched and under-resourced, this system works well. The CPS acts as a peer reviewer and quality controller of any evidence that is obtained by the police, ensuring that all prosecutions are conducted with rigour and fairness. Many times, I have watched as frustrated police officers wait for the CPS to approve a charge only to be told that the evidence is flawed or inadequate. The CPS are usually right in their decision, and it ensures that the police maintain the highest standards as an investigating body.

The Post Office investigated alleged criminal offences itself and made the decision to charge sub-postmasters on its own, without any independent third-party review of the evidence. This is clearly inadequate. I have spoken to a number of CPS lawyers about the Post Office scandal and they’ve each told me that if they had been presented with cases involving a large number of previously law-abiding individuals suddenly being accused of theft on the back of a computer software report – they would have asked questions, not of the individuals, but of the software.   

The inquiry into the scandal has unearthed evidence that the Post Office was paying investigators and prosecutors (not barristers), bonuses to obtain convictions. This is utterly wrong. The aim of the legal system should never be based on how many convictions you secure, but always to strive towards justice.

Just as troubling are the revelations about disclosure. The procedure for disclosure is set out in the Criminal Procedure Rules clearly stating that any documents that either undermine the prosecution case or assist the defence must be disclosed – it appears that the Post Office failed to abide by this fundamental principle and that failure is an affront to justice.

The Post Office Horizon IT Inquiry’s report will almost certainly contain widespread criticism of the Post Office and its systems, but I hope that it suggests a profound reform of the ways in which organisations other than the CPS who are allowed to bring prosecutions before the Crown Court carry out their work.

As for those affected, the Government has announced that it will bring primary legislation before Parliament which will have the effect of overturning these convictions en masse.

Although it is right that the Government should take such urgent measures, I’m unconvinced that this is the right way to go about providing the justice that each of these individuals deserves. The separation of powers between the judiciary, the executive and the legislature is an important one and should be preserved. I can see no reason why the Court of Appeal could not put aside a court and bench of appellate judges to deal swiftly with each case and declare properly in court that the conviction is quashed and the individual fully exonerated. Compensation should follow swiftly and put each of the individuals concerned in the financial position they would have enjoyed but for the intervention of a wholly erroneous and unforgivable prosecution.

I have no idea of the name of the individual I prosecuted, and will probably never know, but, if I had the chance, I would gladly meet them on the steps of the Royal Courts of Justice and apologise for my own role in this scandal.