Government to change unfair private prosecution rules used to prosecute innocent subpostmasters

The government is to change private prosecution rules after an inquiry, triggered by the Post Office Horizon IT scandal, found that the current rules are unfair on defendants.

For many years, the Post Office’s method of pursuing subpostmasters who had unexplained losses in their branch accounts included private prosecutions for financial crimes.

Subpostmasters were prosecuted in this way for crimes including theft and false accounting, with data from the Post Office’s branch computer system used as evidence. But a High Court trial proved that the supposed losses were caused by errors in the Post Office’s computer system used in branches, known as Horizon. About 900 subpostmasters were prosecuted over a 15-year period from 2000, when Horizon was introduced.

Private prosecutions are cases brought by individuals or companies rather than the Crown Prosecution Service. The unexplained losses experienced by subpostmasters were not investigated by the Post Office or the police, but in many cases subpostmsaters were prosecuted, with some being jailed.

In 2009, Computer Weekly revealed that subpostmasters were forced to pay back the unexplained losses, some received prison sentences and hundreds have had to live their lives with a criminal record. There has also been at least one suicide linked to the scandal (see timeline below).

In March last year, following the referral of 47 subpostmaster cases to the Court of Appeal, the Criminal Cases Review Commission asked the Ministry of Justice to review private prosecution powers.

Then, in June, MPs sitting on the Justice Committee announced that they would examine the regulations surrounding private prosecutions.

The committee said at the time that it would not review the subpostmasters’ cases, but would “look at the potential consequences of an organisation investigating a case, and prosecuting it, while that organisation is also the alleged victim of the offence”.

Following the inquiry, a report was published, which recommended changes to private prosecution rules.

Last week, the government said it would change the law relating to funding of private prosecutions brought to court and would increase oversight of organisations initiating private prosecutions. “The current rules are unfair and favour the prosecution over the defence,” said the Parliamentary Justice Committee.

Justice Committee chairman Bob Neill said:  “Our inquiry found that the present arrangements for funding private prosecutions are unfair.”

Under current rules, private prosecutors can recover all their costs from public funds, even if the defendant is acquitted. “This gives an unfair incentive to the prosecution because, by contrast, an acquitted defendant can only recover costs capped at legal aid rates,” said Neill.

The government will now legislate to ensure that the legal aid cap also applies to private prosecutors. “This is a welcome levelling of the playing field,” added Neill.

The Post Office case and the select committee inquiry also highlighted “a lack of oversight from the authorities over the growing number of private prosecutions currently taking place”, said the committee.

“In the Post Office case, for example, it seemed that the only institution aware of the very large number of cases being brought by the Post Office was the Post Office itself,” it added.  

The committee recommended that HM Courts and Tribunals Service should establish a central register to keep track of all private prosecutions in England and Wales. The government agreed and said such a register would be established by the end of this year.   

There are also calls for the government to change the rules on digital evidence in court after the Post Office Horizon scandal revealed that subpostmasters were wrongly prosecuted based on flawed computer evidence.

In 1999 – coincidentally, the same year the Post Office rolled out the Horizon system – a presumption was introduced into law on how courts should consider electronic evidence. This legal presumption, which said computer evidence was correct unless proven otherwise, replaced a section of the Police and Criminal Evidence Act 1984, which stated that computer evidence should be subject to proof that it was operating properly.

The new rule made it easier for the Post Office, through its private prosecution powers, to convict subpostmasters for financial crimes when there were accounting shortfalls, based on data from the Horizon system. 

Justice minister Alex Chalk requested that a paper be written on suggestions for improving the existing approach to the proof in court proceedings of computer-derived evidence. The paper was submitted to the Ministry of Justice in November and is now published.

The paper recommends that when electronic evidence is used in legal proceedings, the party relying on the electronic evidence should automatically provide sufficient details of its systems to demonstrate that they are professionally managed.

Chalk has referred the paper and its recommendations to the Criminal Procedure Rule Committee chair and Computer Weekly understands that has triggered a process of consideration that will take months.