The Post Office Horizon Scandal has taken over much of my free time, and spare money. Although I have no Standing in this or these cases I hope the sheer Injustice of it will provoke reform in the English Criminal Justice System. To recap there are hundreds of British Sub-postmasters who were prosecuted and in some cases imprisoned for Offences of Dishonesty. For it to be discovered that primary cause were Software Errors in a system called ‘Horizon’. The Subpostmasters (SPMs) banded together, created a Group Litigation Order (GLO) or what may be termed a Class Action Suit (US). The Post Office settled the case but did not concede.
The Settlement was mainly consumed by legal fees and litigation funders. The SPMs have won a Statutory Inquiry and this is working its way through at time of writing (December 2022). The biggest issue so far has been Compensation. The Post Office is owned by the British Government, they are funding the Inquiry and will pay the Compensation. This sounds very good but, as they say, the devil is in the details.
The Inquiry is partitioned into a number of phases, so far we have completed two of these. We have yet to consider the legal situation. So what legal situation? The Inquiry will not produce its final report until 2024 but one of their findings might be that Post Office committed Perjury in bringing these cases. Currently the Post Office do not concede any criminality and they are putting together a number of schemes that will provide Compensation to the SPMs. Although the Post Office seem to be administering the Schemes the money is being provided by the Government. This has resulted in a very unusual situation. The British Government does not like to provide Compensation to anyone and so is only begrudging funding it too sPMs. The topic of the schemes is worth a whole blog on its own and I will do that soon.
The point of this blog is to consider who should be driving the discussions on Compensation. Presently this is being done by the Post Office. Behind the Post Office may be the Government department BEIS. This author wonders whether there are also some Insurers involved. Given at least the potential for further legal sanctions some SPMs desire that negotiations be handled by another independent body. As of the Inquiry special day on Compensation issues (8th December 2022) there looks to be at least some independent involvement. However it should be noted that although the whole day was taken up by some dramatic discussions it did not really resolve very much. I will now consider whether the Post Office should be involved. NOTE this is all my personal opinion.
Some time ago I wrote to my MP about some legal issue or other and his reply was to state that English legal history goes back 900 years or more. I’ve heard that number since and it appears to be government policy to answer all legal queries by pointing this out. I will go back in history but not that far. I would like to refer to Edward Coke and his maxim that “No man can be a judge in his own case“. This came from the very famous Dr. Bonham’s Case (1628). It is regarded as a fundamental tenet of English Common Law. The case goes beyond this premise and another part of it is used to justify the whole concept of Judicial Review. I will return to Judicial Review but will use the idea that you can’t be a Judge in your own case. This raises the question of whether the Post Office are acting as a Judge in their own case(s)
The CCRC reported that POL made heavy use of Private Prosecutions. Although the legal definition a Private Prosecution is somewhat contested I am going to agree with the CCRC definition and indeed there was an Inquiry that assumed so by the Justice Select Committee. This would be a Prosecution which is not initiated by the CPS or the Police. Particularly American studies claim that a Private Prosecution does violate the Common Law exclusion of “nobody can be a judge in their own case”. The Post Office are bringing these cases and they do collect fees and damages if the case is resolved in their favour. In Dr. Bonham’s case the College of Physicians had him imprisioned and were demanding money (just like some of the SPMs).
The Post Office Horizon Scandal is being investigated by a Public Inquiry which brings together a number of aspects of the cases. POL have a curious standing. They are a government organisation but are termed an “Arm’s Length Body”. They are also administered by the BEIS department. The Government is the sole owner of POL but does not exercise day by day control. So when the question arises of who is responsible for the case, it can be difficult to get a single correct answer. The Post Office settled the Group Litigation Order but put in a clause similar to “this is full and final settlement”. After all costs and lawyers fees were settled this left the SPMs with very little money, certainly when compared to the damage the Post Office caused to their lives. What’s worse, although this was a civil action, the Government initially were of the opinion that no further damages could be obtained. It is common in cases that are settled that this choice of words is used in the settlement. When settling a case that may lead to bankruptcy it provides certainty to both Parties. When the JFSA agreed to the settlement it was because their funds, sources of funds, were all but exhausted. However POL is not like any other Company, it has the British Government behind it. The Government wants POL to continue to serve the nation. Fortunately the Government (BEIS) is to stand behind further settlement to these cases.
The problem is that POL seem to be administering this scheme. Note there are several “schemes”. Given that the Government is providing the funds, why should POL be administering it? This issue has been raised with the Inquiry and some ground has been conceded, an independent body, consisting of two Members or Parliament and some Lawyers (yet to be hired), has been created. For the SPMs it is an improvement but does not resolve the issue of why POL are involved at all. This means POL decide who is eligible for the scheme, how much individuals will get and when they will receive any funds.
The Inquiry has closed Phase 2 and although much has been resolved about the Software it has yet to consider the legal consequences. After the GLO, along with Justice Fraser’s (Fraser J) expansive documents, several of the SPMs took their case to the Court of Appeal Criminal Division and their convictions were quashed. Not only quashed but were judged to have “offended the public conscience”. Not only were the cases against them found to be wrong but it was an embarrassment for the Post Office to bring them. This means we are in a legal no mans land. Nobody has found that Post Office has committed a crime, e.g. Perjury, but the Offending the Public Conscience means they might have done so.
Not only are POL continuing to drive the process they may eventually be prosecuted for their historical prosecutions. To the SPMs, and any public that know, this seems to be wrong. A violation of natural justice. Although the Criminal Justice System seems not to worry about Natural Justice anymore the great British public have a notion of right and wrong.
Were we ever able to ask Edward Coke what he thought of this case, I’m sure he would say “I’ve already decided that, no Man can be Judge in his own case.
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