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Post Office (Horizon System) Offences Bill Contents

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Post Office (Horizon System) Offences Bill

Introduction

1.The Post Office (Horizon System) Offences Bill (“the Bill”) was introduced in the House of Commons on 13 March, where it received all-party support. The Bill was brought to the House of Lords on 30 April and second reading was on 13 May. Committee stage and all remaining stages took place on 23 May.

2.The Constitution Committee aims to publish reports on bills before the start of their committee stage. This report was largely prepared with the Bill’s original timetable in mind, and broadly agreed at the Committee’s meeting on 22 May. The change to the Bill’s timetable as a result of the general election announced for 4 July meant that it was not possible to finalise and publish this report before the Bill was passed by the House of Lords. Nonetheless, we wish to put on record the Committee’s views on the Bill— these are necessarily couched as if the House still had the opportunity to consider the Bill and represent the Committee’s views prior to consideration on 23 May.

3.We are grateful to the Lords ministers, Lord Offord of Garvel and Lord Bellamy, for briefing the Committee privately about this Bill. We had hoped to receive further information by correspondence on many of the matters raised in this report, but that had not been received by the time we had to agree the report.

4.The faulty Horizon IT system, in use in post offices from 1996, led to the wrongful conviction of many hundreds of postmasters for crimes of dishonesty. The Government notes that this has been “widely described as the biggest miscarriage of justice in our history.”1 The Bill will quash, on a blanket basis, convictions of sub-postmasters and others who worked in post office branches, for various theft, fraud and related offences during the period of the Horizon scandal in England and Wales. Separately, individuals wrongly convicted where Horizon was in use in the Post Office are eligible to receive compensation of at least £600,000 through the Overturned Convictions scheme, once their conviction has been overturned. The blanket quashing of convictions under this Bill will therefore enable individuals to access that compensation without needing to appeal through the courts.2

5.There is universal agreement that the miscarriage of justice caused by the Horizon scandal needs to be rectified swiftly. We acknowledge that the Bill, having been passed by the House of Commons and read a second time in the House of Lords, is the means by which this will be achieved. Nonetheless, it should be recognised that the Bill achieves its aims through the unique and unprecedented mechanism of Parliament legislating to overturn convictions entered by the courts. This profound constitutional novelty deserves careful consideration.

Fundamental constitutional issues

Parliament and the courts

6.Clause 1 provides that convictions in England and Wales and Northern Ireland for a “relevant offence” are quashed on the coming into force of the Act. Clause 1(2)(c) and 1(3)(c) exclude from this the quashing of convictions that have been “considered by the Court of Appeal”.

7.Clause 1 invites Parliament to legislate to overturn criminal convictions. This has implications for the longstanding, separate roles which the constitution accords to the courts and Parliament, and therefore for the independence of the judiciary.

8.The jurist A.V. Dicey described the rule of law as a pillar of the constitution, operating alongside parliamentary sovereignty. For Dicey, the rule of law contains two main principles—the independence of the ordinary courts and equality before the law:

“no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”; and

“every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.3

9.The independence of the judiciary, and the separation of the judicial function from the executive and legislative functions of the state, is a fundamental facet of the rule of law. Interfering with or setting aside a criminal conviction entered by the courts is an unprecedented interference with the exclusive jurisdiction of the courts, while the potentially inconsistent effects of the Bill could endanger the principle of equality before the law.

10.There have been instances of Parliament legislating to overturn the effects of a judicial decision. In 1965 it passed the War Damage Act4. This changed the law retrospectively in light of a decision in the Burmah Oil case that compensation was due for damage caused by the British Army during the war.5 That Act operated to change the effect that the ruling in Burmah Oil might have had and stopped ongoing proceedings. More recently the Litigation Funding Agreements (Enforceability) Bill addressed the impact of the Supreme Court’s judgment in PACCAR.6 But neither piece of legislation—nor any other—seeks to overturn a criminal conviction.

11.Other legislation has pardoned individuals or groups for crimes committed. The Indemnity and Oblivion Act 1660 gave a general pardon to everyone who had committed certain categories of crime during the English Civil War and in the subsequent Commonwealth period. More recent examples include the Policing and Crime Act 2017 which introduced posthumous pardons for convictions of certain abolished offences. But a pardon accepts that a crime had—under the law of the time—been committed and does not imply that there was anything unsafe about the conviction in its own terms.

12.Parliament is sovereign, by which is meant that it is legislatively supreme. This power includes the authority to make law in response to judicial decisions, correcting their effects. Hitherto this has been done to change the law as declared by the courts, not to overturn criminal convictions. Overturning a criminal conviction so that it is in fact quashed, is categorically different from legislating to overcome the consequences of a court decision. In the first place its retrospective effect is different, treating the original decision as, in effect, a nullity. Secondly, it intervenes directly in the judicial process by reversing a verdict entered by a court.

13.Parliament is legislatively supreme, but that does not mean that it can, with constitutional propriety, assert that supremacy to undermine other constitutional values, in particular the rule of law. Put another way, under our constitution it is impossible for Parliament to behave unlawfully since its lawful power is unlimited, but it can behave unconstitutionally.7

The executive and the courts

14.Clauses 4, 5 and 6 of the Bill give the Secretary of State and the Department of Justice in Northern Ireland discretion in certain areas. Clause 4 vests a power in the Secretary of State and the Department of Justice in Northern Ireland to identify the convictions to which clause 1 applies and to notify the relevant court that the conviction has been quashed. The power is to identify quashed convictions; it is not itself a power to quash them. However, the minister’s role in informing the relevant court is important in practical terms, leading to the adjustment of court records. Furthermore, where a person has been convicted of multiple offences it may not always be clear which are relevant offences under clause 2. In these cases, it would seem that the minister’s role could be instrumental in determining whether a person’s conviction or multiple convictions are removed from the record.

15.Clause 5 contains a power for the Secretary of State to direct the appropriate chief officer of police to delete details, contained in the UK criminal records database, of any caution received for a relevant offence. Clause 6 contains an equivalent provision in respect of Northern Ireland.

16.The powers in clauses 4, 5 and 6 afford the Secretary of State or the Department of Justice in Northern Ireland discretion in effect to decide whether a conviction is caught by the exoneration provisions. While such decisions may well be subject to judicial review, and in practice the courts would be the final arbiter of whether a conviction is within the exoneration provisions, there is nonetheless a risk that the exercise of these powers involves the executive performing a discretionary role in the identification of quashed convictions.

17.This risk is exacerbated by the apparent incompleteness of the records relating to these cases. The explanatory notes to the Bill suggest that the Secretary of State or the Department of Justice in Northern Ireland could “review case data from the Police National Computer, court records, records held by Post Office Limited such as employment record, and CPS data” to identify “many” of those cases that meet the conditions in clause 2.8

A precedent?

18.The Bill is unprecedented. It therefore follows that it may be treated at some point in the future as a precedent. We put this to the Lord Chancellor, who considered the Bill unique on the facts:

“You would struggle to find anything that was on the four corners of these facts. This is wholly extraordinary, where you have an emanation of the state that has totally abandoned respect for its … obligations to disclose material that might reasonably be considered capable of undermining the case of the prosecution or assisting the case of the defence.”9

19.Nonetheless, the Bill breaks new ground which may be seen as a political precedent for a future Parliament with an unlimited sovereign power to legislate. Whatever the Government’s intention, the Bill is an instance of legislative over-ride of decisions by the criminal courts. It is impossible to predict what longer term impact this precedent might have. Furthermore, as a matter of law, any amendment to the Bill to add a ‘purpose clause’ or other language seeking to ensure the Bill is a one-off would not bind a future Parliament.

Alternatives?

20.Such a constitutionally unorthodox measure as this Bill should only be contemplated, in our view, if Parliament can be satisfied that there exists no feasible alternative, allowing corrective justice through the normal appellate process, that would be as swift and comprehensive in its effect as the Bill itself.

21.At second reading in the House of Lords the minister, Lord Offord of Garvel, stated:

“The Government acknowledge that the quashing of convictions by an Act of Parliament is an exceptional step, but we believe it is required to respond to a factually exceptional situation.”10

22.Whether or not the Bill is “required” turns on whether there is a feasible alternative. An alternative was outlined during the Bill’s second reading. This would involve legislating to confer power on the Secretary of State to refer cases to the relevant appeal court if she considers that the conviction may be unsafe, including those that have already gone through the courts, and giving the Court of Appeal Criminal Division the powers of the Crown Court sitting in its appellate capacity, so that appeals from both the Crown Court and the magistrates’ court could be dealt with in the same place. This would avoid the need for reluctant individuals to initiate proceedings. In cases where the individual had died or lacked capacity, the Attorney General could be given a representative role. If there were concerns about such appeals being contested, and that evidence would therefore be required to be produced, the burden of proof in the Court of Appeal could be reversed to place the burden on those contesting the appeal.11

23.The minister did not deny that this was feasible, but rejected it for the following reasons—

“Reconsideration of cases by the Court of Appeal would take time even if court processes were expedited. Further, a presumption that all relevant convictions are unsafe is rebuttable, and we cannot be sure that every case would pass through the courts swiftly and without adjournments. This approach would not avoid interfering with the independence of the judiciary; it would raise other constitutional concerns, as it would make an assumption about the outcome of the cases being referred, meaning that the Government were still interfering in the judicial process of the senior appellate court.”12

24.It is a fundamental principle of our constitution that the determination of guilt and innocence is a matter for the courts and that Parliament should not legislate to overturn criminal convictions. The House will wish to consider whether the exceptional nature of the Horizon scandal justifies a departure from this principle, in the light of the nature and extent of the miscarriage of justice, and the widespread desire to achieve swift justice for the postmasters. There is broad, cross-party agreement on the Bill.

25.The Bill is unprecedented and, by its existence, may be treated in the future as a precedent. We do not seek to weigh the merits of alternative means of exonerating postmasters but take the view that the constitutional propriety of the Bill depends in large measure upon whether or not there exists a feasible alternative, allowing corrective justice through the normal appellate process, that would be as swift and comprehensive in its effects as the Bill itself. The House must decide whether the unique facts of the Horizon debacle require a legislative response of the kind contained in the Bill, and whether these exceptional circumstances also make it highly unlikely that the Bill will be cited as a precedent for future legislation.

Other constitutional issues

Inconsistency and legal certainty

26.Clauses 1 to 3 provide that those who have already appealed and where the appeal court did not find there to have been a wrongful conviction will not have their convictions quashed by the Bill. There could be others whose convictions would not be over-turned were they to appeal who will find their convictions quashed by the Bill. The Bill could therefore result in inconsistency in respect of each of these categories of person in terms both of convictions and the paying of compensation.

27.It might be argued that those who have appealed have done so after any evidential failings in the original prosecution have been brought to light. We are not aware of any appeals pre-dating this. The appeal court was satisfied in a small number of cases that the convictions were safe.

28.However, there is a further complication. Cases where the Criminal Cases Review Commission (CCRC) has refused an application to refer the case back to the Court of Appeal are not referred to in clauses 1 or 3. These convictions would therefore be quashed under clause 1. In short, those deemed by the CCRC as not meeting its criteria for appeal will be quashed; those which were heard by the Court of Appeal but not overturned will not be.

29.The House may wish to consider whether quashing convictions that have been upheld on appeal would be a further legislative incursion into the role of the courts or whether, on the grounds of consistency, the Bill should be amended to include such cases.

30.Clause 2, which defines the convictions which will be quashed by the Bill is framed in wide terms. A relevant offence is one that meets five conditions, A to E—

• it was committed, wholly or partly, between 23 September 1996 and 31 December 2018;
• it falls within a range of offences related to dishonesty: false accounting; fraud; handling stolen goods; money laundering; theft; an ancillary offence relating to any of those offences;
• the person at the time was carrying on a post office business or working in a post office;
• the person was alleged to have committed the offence in connection with carrying on, or working for the purposes of, the post office business;
• at the time of the alleged offence, the Horizon system was being used for the purposes of the post office business.

31.The definition encompasses certain offences with no connection to the Horizon system. To illustrate: a person working in a post office who stole cash from the till between 1996 and 2018, and was caught by CCTV, while the Horizon system was installed at that post office could be considered to meet the conditions of a “relevant offence” if it is deemed to be an offence connected to the post office business, simply because “at the time of the alleged offence, the Horizon system was being used for the purposes of the post office business.”13

32.The House may wish to assure itself that the definition of “relevant offence” in clause 2 is sufficiently tightly drawn to clarify the minister’s roles under clauses 4, 5 and 6 in identifying quashed convictions to be deleted.

Henry VIII power

33.Clause 8 contains a Henry VIII power, allowing for the amendment or modification of Acts of Parliament. Clause 9 contains an equivalent power in respect of Northern Ireland. The reach of such a power becomes less clear, and potentially excessive, when the powers upon which the consequential power builds are themselves unclear. That is arguably the case with respect to the relationship between clause 8 and clauses 4 and 5, and the relationship between clause 9 and clauses 4 and 6. The Government explains the potential breadth of the power in clause 8:

“This may be required in order to ensure that the consequences of the quashing of a conviction can be applied to these convictions quashed by Act of Parliament in the same way as they do to convictions quashed by a court on appeal.”14

34.The House will wish to assure itself that the Government has sufficiently justified the Henry VIII powers in clause 8 and 9.

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