Going postal: the Post Office Horizon scandal

Alec Samuels reflects on Hamilton v Post Office Ltd [2021] EWCA Crim 577

The Post Office scandal, perhaps the greatest miscarriage of justice in our history, is still rumbling on, still not finally sorted. Many wrongful convictions, for fraud, dishonesty and false accounting have been quashed. There were some 700 or so postmasters and postmistresses involved, all managing small Post Offices. The computer system, Horizon by Fujitsu was faulty. Fraser J exposed the problems. Sir Wyn Williams, retired High Court Judge, is engaged in holding a public enquiry, expected to report towards the end of 2022.

What is being done?

The Post Office has made a number of compensation payments. The government has acknowledged that it will ensure full compensation, directly through taxpayers’ money or otherwise. Many millions of pounds will be required to make up for the ruined careers and businesses. Some postmasters have died – tragically, some even by suicide. So, the question arises, who, if anybody is potentially liable, civilly or criminally? No one is above the law, we all say, individuals, corporations, agencies – whoever.

Who is responsible in law?

As it happened, the Post Office survived the denationalisation polices of the 1980s and 1990s, for good or ill, probably because of the requirement for the universal delivery (probably unacceptable in the commercial world) – and a certain public attachment to the dear old Post Office. The government remain the sole shareholder.

Who can be prosecuted?

Anybody, individual or company or agency, could be prosecuted for a crime, such as fraud, dishonesty, theft, perjury, health and safety. The difficulty here is the time delay, the complications of the computer world, and the need to prove some kind of criminal intent. Defendants will say that they acted in ignorance, or in good faith, or on seemingly reliable advice, or they are not experts, or that the postmasters pleaded guilty (as indeed many did, presumably often on legal advice).

The CCRC referred the case to the Court of Appeal, which, on 23 April 2021 quashed a number of the convictions, in Hamilton v Post Office Ltd [2021] EWCA Crim 577. The Court of Appeal accepted the earlier civil findings of Fraser J in Bates v Post Office Ltd [2019] EWHC 3408 (QB), namely that Horizon was not robust, was of questionable reliability, and was not good enough to justify the Post Office confidence.

What about this criminal case?

In the criminal setting, were the convictions safe? The Post Office had not pursued the lines of enquiry they should have done, recorded the information they should have done, so as to be able to provide a fair trial, article 6. There had been a failure of investigation and disclosure, and an abuse of process – and accordingly no fair trial (despite the guilty plea in some instances). The conduct of the Post Office was an affront to the conscience of the court (paras [120]-[139]).

What about politics?

Individual politicians, even ministers, can be criminally liable. MPs were successfully prosecuted for criminally fiddling their expenses (no privilege there). Politicians will say they act upon advice, they were unaware of any Post Office problems, or they properly left them to the professionals – or  they had no responsibility for the day-to-day running of the devolved operationally semi-independent Post Office.

However, it may be the matter was brought to their attention as a constituency MP, by a local constituent. Though, in such a case, they will argue that the matter was duly passed on to the appropriate person or agency. Also, politicians are normally answerable to the electorate through the ballot box, not the judge in the court concerned with legal propriety not policy matters. 

What about civil liability?

As for civil liability, for example, in negligence, or under the Consumer Rights Act 2015, and perhaps malicious private prosecution, the defendants will say that they expected the manufacturers and wholesalers and sellers and purchasers to be expert and to manage the computers expertly – and not rely on the people from whom they came – and anyway, the link or nexus with the ultimate victim, the distant lay postmaster, is far too distant and tenuous, with no proximity. As time passes, potential claimants will also need to keep a watchful eye on the limitations law.

What happened?

In Bates v Post Office Ltd [2019] EWHC 3408 (QB), in a devastating judgment, Fraser J spoke of the institutional obstinacy of the Post Office, presenting arguments equivalent to saying that the earth is flat, and Post Office attacks and disparagement of the postmasters. The case was thereafter settled for £57.5m.

Conclusion

So, after two decades of distress, the justice of the matter has finally been exposed – but the matter is still not finally concluded. Only the subpostmasters and subpostmistresses came out with unsullied integrity and dignity. A very sad story…

Further thoughts…

Any reader interested in references or further reading on this area may consult:

• Nick Wallis, The Great Post Office Scandal (Blackwells, 2021).
• R v Chaytor [2010] UKSC 52
• Bates v Post Office Ltd [2019] EWHC 3408 (QB), per Fraser J
• Hamilton v Post Office Ltd [2021] EWCA Crim 577.
• Debate by MPs in Parliament in Westminster Hall, 17 December 2014.

Alec Samuels is a retired barrister and legal academic.