Between March-June 2020, 47 Sub Post Office workers convicted of fraud, theft and false accounting as a result of a faulty IT system (Horizon) had their cases referred to the Court of Appeal by the CCRC.  The appeals were due to be heard in December 2020. But, on 2 October 2020, the Post Office confirmed that it would not oppose the appeals. In one brief statement, the Post Office finally acknowledged their role in one of the largest miscarriages of Justice in UK history.

Between 2001-2013, 557 sub postmistresses and masters were accused of criminal wrongdoing or asked to repay the Post Office vast sums and lost their positions due to substantial discrepancies in the reconciling of their books. The vast majority had not experienced such problems before but discrepancies developed soon after the Post Office introduced a new IT accounting system, Horizon. The majority of those accused had never been accused of poor record keeping let alone any criminal behaviour before. Most of those charged were convicted and some spent lengthy periods in jail, including a pregnant post mistress who gave birth in prison. The consequences for those accused and their families were utterly devastating.

The Post Office, the employer and the institution that suffered apparent loss, chose to carry out the investigation and prosecution itself rather than referring the investigation to the police or the CPS. When the Post Office workers asked for help, as they could not understand why their books no longer reconciled, the Post Office response was to demand the money was repaid, terminate the contract or institute a criminal investigation and then proceedings. They were told by Post Office investigators that they were the “only ones” who had experienced such difficulties and that the Horizon system was faultless and could not be accessed by anyone except the sub Post mistress/master. Through a tireless campaign by the Justice for Subpostmasters Alliance it was soon discovered this was far from the truth.

The Post Office, through their nationwide investigations into individual Post Office workers, heard similar accounts of the accused that books had reconciled prior to Horizon being introduced. They had evidence that there may be a glitch or “bug” in the Horizon system. In some cases internal reports had concluded that “no theft could be established”. A whistle blower for the manufacturer who developed the Horizon system disclosed that this could be accessed remotely, a fact that had been denied by the Post Office. None of this was disclosed during any of the criminal proceedings.

The Post Office workers appeal prospects were greatly enhanced after 2 crucial rulings in the High Court against the Post Office which ended in December 2019. The CCRC statement of reasons makes this clear:

“In the CCRC’s view, the most important points (from the High Court Rulings) are:

1. That there were significant problems with the Horizon system and with the accuracy of the branch accounts which it produced. There was a material risk that apparent branch shortfalls were caused by bugs, errors and defects in Horizon
2. That the Post Office failed to disclose the full and accurate position regarding the reliability of Horizon
3. That the level of investigation by the Post Office into the causes of apparent shortfalls was poor, and that the Post Office applicants were at a significant disadvantage in seeking to undertake their own enquiries into such shortfalls.”

The Post Office appeal and the CCRC findings clearly highlight the perils of a private prosecution if the prosecutor fails to ensure their independence. This appeared to happen in the Post Office cases where the vested financial and reputational interests of the Corporate outweighed their ability to act independently. This is succinctly summed up by the CCRC:

“in the context of POL’s combined status as victim, investigator and prosecutor of the offences in question – the CCRC considers that there are reasons for significant concern as to whether POL at all times acted as a thorough and objective investigator and prosecutor, ensuring that all reasonable lines of inquiry were explored. The CCRC further considers that this concern applies to POL’s approach throughout the period 2001 to 2013, that is, the timespan of the convictions which are considered in this Statement of Reasons.”

The CCRC has written to the Attorney General’s Office and to the Chairman of the Justice Select Committee proposing that a formal review should be conducted into when and how an organisation should be able act as a private prosecutor in cases where it is the victim as well as investigator of an alleged offence just as the Post Office did in relation to the Horizon cases.

The extreme injustice suffered by 100s, if not 1000s, of Subpost mistresses and masters at the hands of their very own employers illustrates the obvious risks of a body or individual with a vested interest in the outcome investigating and prosecuting a criminal case. The Post Office has now, belatedly and after enormous human and financial cost to the individuals involved,  set up an extensive disclosure exercise, by external criminal law specialists, to identify material which might affect the safety of any relevant historical prosecutions.

The Post Office Cases also illustrate the necessity to instruct experienced solicitors when dealing with a private investigation or prosecution, either as a prosecutor or defender, to ensure independence at all stages and to be alive to the potentially aggressive tactics and disclosure issues that may arise.

The AG Review will undoubtedly consider the Private Prosecutor’s Code which is alive to the risks of a Private prosecution and emphasises the need for advocates and solicitors to: “observe the highest standards of integrity and of regard for the public interest. They have a duty to act as Ministers of Justice in preference to the interests of the client who has instructed them to bring the prosecution.” But what happens when such standards are not met and why does such a Code not apply to the investigators? From the example of the Post Office cases and CCRC referrals it is apparent that there are major risks when the alleged “victim” is also the investigator and prosecutor.

Private prosecutions can be an effective means to secure justice, but justice must not only be done but be “seen to be done”. Independence needs to be ensured at every stage and we expect the AG Review will draft robust guidelines to try and ensure such independence exists. We have extensive experience in representing clients involved in private prosecutions and also in advising on private prosecutions. If you would like to discuss this in confidence, please contact the team.