Post Office suffers latest court defeat in Horizon IT scandal

The Court of Appeal has indicated that subpostmasters will be able to appeal against wrongful convictions on the grounds that the Post Office prosecuted them despite knowing they could not get a fair trial.

This is another court defeat for the Post Office, which contested the request, in the long-running Horizon scandal.

Although not a final decision, which will come later in writing, the judges at the Court of Appeal indicated that if subpostmasters – whose cases were referred to it by the Criminal Courts Review Commission (CCRC) – wanted to pursue the grounds referred to as “an affront to the public conscience”, they would be able to.

The decision means the Post Office and the government could come under more scrutiny with regard to one of the biggest miscarriages of justice in UK history.

A total of 47 subpostmasters, wrongly convicted of financial crimes by the Post Office, had their cases referred for review by the CCRC in June. 

Over a 15-year period, beginning soon after Fujitsu’s Horizon computer system was introduced into Post Office branches in 2000, subpostmasters were sent to prison, heavily fined, forced to do community service and many were bankrupted, after being blamed for unexplained accounting shortfalls.

A Computer Weekly investigation in 2009 revealed the stories of affected subpostmasters. They said the losses were caused by errors made by the Horizon system. The Post Office denied this, and many subpostmasters were subsequently prosecuted for theft and false accounting in what has become one of the biggest miscarriages of justice in UK history (see timeline below).

The Post Office maintained Horizon was robust and strenuously denied that the IT system’s errors were causing unexplained accounting shortfalls. But in a multimillion-pound group litigation, in which subpostmasters were proved right that Horizon was causing shortfalls, High Court judge Peter Fraser described the Post Office’s stance as “amounting to the 21st century equivalent of maintaining that the Earth is flat”.

The CCRC said the convictions were potentially unsafe for two reasons. The first was that the computer evidence used in prosecutions was potentially unreliable (known as "limb 1"). This is the ground for appeal that most of the appellants initially chose and the Post Office has already said it will not contest this. Six appellants, who appealed at Southwark Crown Court last week, had their convictions and criminal convictions quashed. Most of the remaining appellants will take their appeals to the Court of Appeal in March.

But in the Court of Appeal today (17 December 2020), the legal team for three subpostmasters requested permission to pursue their appeals on the CCRC’s second reason for referring cases. This was that the Post Office knew it was not possible for subpostmasters to have a fair trial but proceeded anyway, which was an “affront to the public conscience”, according to the CCRC (limb 2). The Post Office contested this.

The three appellants who were seeking permission to appeal on limb 2 were Tracy Felstead, Janet Skinner and Seema Misra. All three were sent to prison after being prosecuted by the Post Office, and want the “affront to the public conscience” argument to be heard by the Court of Appeal. The Post Office did not include these three cases in the group it said it would not oppose.

According to freelance journalist Nick Wallis, tweeting from court, the three appellants’ legal teams now have until 15 January 2021 to file a skeleton argument indicating how the appeal will be put on behalf of their appellants. Other appellants that want to argue limb 2 must file a similar skeleton argument by 29 January. The court said any appellant who has not filed a skeleton argument would be limited to limb 1.

The court’s approval that this is a relevant ground for appeal will increase pressure on the government to resolve the scandal by highlighting major weaknesses in the legal system and exposing potential malicious prosecution. It will deepen the controversy that involves the Post Office and the government, its owner, by exposing who knew what and when, and who made key decisions.

When the CCRC referred the group action to the Court of Appeal, unprecedented in its size, the organisation’s chair, Helen Pitcher, explained the CCRC’s reasoning: “Our argument is that this is an abuse of process, and if you are getting so many cases which all relate to an IT system that has been put in, somebody, somewhere should have been asking if this is the fault of the individual or the system, and if it is the system, what does that mean?”

Pitcher added: “If I was on the Post Office board, I would have been saying to my head of legal, ‘I need you to come to the board and give us an account of how there could be so many cases coming under the same category’.”

In court, the three subpostmasters were represented by Lisa Busch QC of Cornerstone Barristers, who replaced Paul Marshall, also of Cornerstone, who passed a confidential document in the case to the Metropolitan Police.

The document, from 2013, was referred to in a previous Court of Appeal hearing. It allegedly contains information that could have undermined the subpostmaster prosecutions. The disclosure, which has not been made public, is from a barrister to the Post Office concerning evidence given by an expert witness in the trials of subpostmasters who blamed the Horizon computer system for accounting shortfalls.

Announcing that he was stepping down from representing the three claimants, Marshall said: “Having carefully and anxiously reviewed the proceedings on the 18 November, 19 November and 3 December 2020, and the terms of the order made on 3 December 2020, I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clients. 

“Accordingly, it is in my clients’ best interests to be represented in these appeals before this court by other counsel. It is most unfortunate for my clients that they are deprived of representation by both counsel of their choice as a consequence of events of 18-19 November and 3 December 2020.”

Many more subpostmaster convictions could be sent for review. The CCRC said that, at the last count, it had 23 cases of subpostmaster prosecutions under review. A total of about 900 were prosecuted based on Horizon data over the years.

Meanwhile, the Scottish CCRC has taken what it described as an “unusual step” by writing to 73 people with criminal convictions potentially linked to the Post Office’s Horizon errors.