Post Office Horizon Scandal – what lessons can be learnt about the prosecution process?

Dr Huw Evans, former Senior Crown Prosecutor and lecturer in law, Cardiff Metropolitan University

The ITV drama Mr Bates vs The Post Office has brought to public attention multiple miscarriages of justice which are a stain on the UK justice system.

This article focuses on the investigative and prosecution background, and how different arrangements might have avoided or ameliorated the current situation.

Enforcement = investigation and prosecution

Taking criminal enforcement action involves gathering evidence (the investigation function) and taking the evidence gathered to court to secure someone’s conviction (the prosecution function).

There is also the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights and given domestic effect in UK courts by the Human Rights Act 1998 .

Another relevant consideration is that a prosecutor’s duty is not to secure a conviction at any cost but to present a case fairly and, eg, disclose relevant evidence not intended to be used and not proceed with a case where there is insufficient evidence (see, eg, the Criminal Procedure and Investigations Act 1996, section 3).

If the investigation and prosecution functions are carried out by the same person (A) it is not hard to see how there might be potential problems: eg, A might not have sufficient detachment (it could be about the sufficiency of evidence to prove a case) or irrelevant motives might cloud A’s judgement (it could be about A’s corporate reputation or finances); the effect of these can be to deny a person a fair trial.

Separating out the investigation and prosecution functions so that they are carried out by different people does not guarantee a fair trial, but it makes it more likely.

Police enforcement and the Crown Prosecution Service

Until the establishment of the Crown Prosecution Service (CPS) by the Prosecution of Offences Act 1985, both investigation and prosecution functions for police enforcement rested with the police. The CPS took over the prosecution function.

The legislation setting up the CPS followed a Royal Commission on Criminal Procedure, chaired by Sir Cyril Philips, and which was established against a background of well-documented miscarriages of justice arising from police enforcement.

The Commission recommended the establishment of an independent prosecution body which made conduct of prosecutions the responsibility of a person who was both legally qualified and not identified with the investigative function.

The Commission argued that separating the investigative and prosecution functions was needed as ‘the investigator, by virtue of [the] function, is incapable of making a dispassionate decision on prosecution.’; splitting the two functions helped to ‘ensure that prosecutions are initiated only in those cases in which there is adequate evidence and where prosecution is justified in the public interest’ (page 133).

Since then, prosecutions of offences in England and Wales investigated by the police are undertaken by the CPS and in accordance with principles contained in a statutory code.

For a case to proceed, it must pass a two-stage test; that there is sufficient evidence to justify prosecution (the evidence test), and it is in the public interest to do so (the public interest test). Although the code is issued to guide the CPS, its principles should be applied by other enforcers such as the Post Office.

But while the code might in theory apply to Post Office investigations, there was no independent body like the CPS to prosecute Post Office cases, and the Post Office both investigated and prosecuted.

Josephine Hamilton & Others v The Post Office Limited

On reading the judgement of the Court of Appeal (Criminal Division) in Josephine Hamilton & Others v The Post Office Limited [2021] EWCA Crim 577, the lack of dispassion and other factors impacting on a fair trial are obvious and concerning.

It is an exercise in speculation to consider how the cases mentioned in that judgment might have been conducted differently had they been CPS prosecutions, but that exercise is informing.

Josephine Hamilton (JH) was the lead appellant in the Court of Appeal (see, specifically, paragraphs 142 to 148 of the judgement). JH pleaded guilty to 14 counts of false accounting. The prosecution agreed not to proceed with a charge of theft on the basis that £36,644.89 (the amount of the claimed shortfall) was to be paid before she was sentenced. JH received a community sentence order for 12 months with a 12-month supervision requirement.

JH accepted a ‘deal’: if she pleaded guilty to false accounting the prosecution would not pursue the theft allegation. Plea bargaining, itself, is not unacceptable, but for it to be acceptable it must comply with the CPS code and not otherwise amount to oppressive conduct.

In the JH case, though, the Post Office investigator had reported that there was no evidence of theft. Yet JH remained charged with theft and it was actively used to secure guilty pleas to the false accounting charges and to obtain recovery of money claimed.

Applying the evidence test, as any prosecutor must do, meant that the theft charge should have been dropped immediately when the view was taken that there was insufficient evidence to prove that charge.

The Court of Appeal concluded that ‘undue pressure’ had been placed on JH; the impression was given that ‘the prosecution process [was used] to enforce repayment’ of the money claimed. This brought the justice system into disrepute and undermined the safety of her convictions, notwithstanding the guilty pleas. The Court of Appeal concluded that prosecuting JH was unfair and an affront to justice and quashed her convictions.

In the same judgment, the convictions of 38 other people were quashed on similar grounds (convictions of three people were also upheld).

If the investigation and prosecution functions in the JH case had been undertaken by separate bodies, surely, its management would have been radically different as there would have been greater independence and dispassion together with a related focus on compliance with the statutory code and ensuring a fair trial.

The JH case has been highlighted but the issues in the case are replicated in the cases of the 38 other appellants mentioned in the Court of Appeal judgement.

Looking to the future

Post Office enforcement arrangements for the relevant period need to be carefully evaluated and recommendations made and implemented so that in the future alleged wrongdoing is investigated and (if it gets that far) prosecuted in a way that is fair to all parties.

The terms of reference of the current inquiry in this matter being undertaken by Sir Wyn Williams do not specifically refer to enforcement arrangements.

It would be better if they did but this does not in itself seem to preclude the eventual report covering such matters.

The case of police enforcement has been mentioned as a comparative example about the direction Post Office enforcement might go. Another comparative example concerns HMRC enforcement. Prosecutions used to be undertaken by HMRC but the CPS now do this (the Prosecution of Offences Act 1985 was amended to allow this. Post Office prosecutions could be similarly added.

As a caveat, the CPS in practice has not been perfect and there are well-documented issues concerning it. But as a model, separating the investigative and prosecution functions for enforcement seems better than not doing so.

There are also Post Office Horizon cases in Northern Ireland and Scotland in spite of there being separate public prosecution agencies which have conduct of those prosecutions (the Public Prosecution Service for Northern Ireland and the Crown Office and Procurator Fiscal Service but reading the facts of the 39 cases in the Court of Appeal judgment suggest that the current situation would not be as it is if the investigative and prosecution functions had been originally separate for Post Office enforcement.

Corrective justice is important and wrongs arising from the affair need to be righted. But that is only half the task; the other half is about identifying how the situation has arisen and taking action to secure nothing similar happens again.

The current situation can also act as a prompt for broader questions about the performance of other prosecutors such as local authorities, the Health & Safety Executive, the RSPCA, the CPS, and various multi-national corporations that bring private prosecutions to protect their intellectual property rights.