The Post Office scandal: what it is about and what can be done?

The recent television series Mr Bates vs the Post Office has drawn attention, literally in dramatic style, to the largest set of miscarriages of criminal justice ever in the United Kingdom. Many will now know the basic details. The Post Office installed a new software system, Horizon, into all of its branches in 1999, in order to keep track of business and money taken at the branch. All sub-postmasters had to use it, and many experienced problems and discrepancies, and sought help from the Post Office and the software designers, the software of which was owned by Fujitsu. No effective help was forthcoming; only office raids, prosecutions for theft, fraud or false accounting and civil action by Post Office investigators when the software appeared to suggest that vast sums had gone missing.

The public inquiry

It would now appear that senior figures in the Post Office were aware of problems with Horizon, but were keen that these did not become public knowledge. The details of the problems were, apparently, not shared with their own investigative and prosecutorial teams. Accused postmasters say that they were informed that they were the only ones to suffer such discrepancies and that there was no possibility of third parties having access to the system. Neither was true. So much of the actual truth still remains to be uncovered in the ongoing public inquiry chaired by retired High Court judge Sir Wyn Williams. But it seems safe to say that the number of convictions is over 700 and that, in the majority of cases, the evidence was based solely on the Horizon software and no missing money was ever found by Post Office investigators.

The convictions

Political attention is now focused on quashing the convictions that are known about (and from there, proper compensation packages might be agreed). As the law stands, Crown Court convictions can only be quashed by the Court of Appeal, but so far, the figure of successful appeals stands at just 93, and that is almost three years after the Court of Appeal dealt with the first batch of cases. Continuing to process appeals through the notoriously overburdened Court of Appeal would take several more years – and in many cases the full details in the original files might not be found, but in a few cases, there may well have been other, cogent, evidence of guilt. A political solution will need to be found, and we expect to hear the government’s proposals soon.

Private prosecutions

The Post Office was able to bring so many prosecutions, and to conduct them so appallingly, because they were not supervised, and in effect were answerable to no one. Individuals and companies can bring private prosecutions and there is no need for them to involve the police in their investigations nor to gain approval from the Crown Prosecution Service (CPS) to bring a prosecution. The safeguards that exist all assume either that the prosecutors are acting honestly or that those accused can demonstrate otherwise. But no one else knew about the industrial scale of the prosecutions in the early years, and accused persons are not given privileged access to computer software in order to highlight its bugs.

The case for reform

In due course, the Ministry of Justice (MoJ) will need to consider reforms to private prosecutions. And it is here that the reform network I co-direct – the Criminal Law Reform Now Network (CLRNN) – will be of assistance, having been working on a review of private prosecutions since 2019 – scheduled for publication in the coming weeks. The MoJ has been on alert since 2020, when the Justice Select Committee started receiving evidence on the matter, to which three Committee members of the CLRNN contributed, commenting in its response to the Committee that it intends to work with our network to consider reforms.

We ourselves do not support abolition of private prosecutions. Our belief is that some private prosecutions do in fact serve the public interest, especially in areas where the police and CPS have effectively retreated under budget cuts. However, it is possible to conceive of a scheme of accreditation and oversight which would apply to companies or large organisations who prosecute, and for magistrates to have greater powers to refuse to issue the summons which institute proceedings, without wholly derailing the valuable work that some private prosecutors perform. Both measures would likely require primary legislation, but hopefully the time for that might now be found.

John Child is professor of criminal law at Birmingham Law School, University of Birmingham
birmingham.ac.uk