Barristers don’t cry in court. But the Post Office case was different. When Lord Justice Holroyde announced the Court of Appeal’s decision, quashing the convictions of 39 sub-postmasters (including my clients), I couldn’t help but shed a tear.
Getting to know my clients was one of the greatest privileges of my career. Each had their life destroyed by false convictions. Yet each one found the strength to face the Post Office once again in court. I remain in awe of them. So this isn’t an easy column for me to write.
The sub-postmasters with outstanding convictions must be exonerated. But Rishi Sunak’s bill isn’t the way to do it. Moreover, it will do more harm than good.
The bill will have Parliament declare the remaining sub-postmasters’ convictions quashed. But ministers have known that these convictions are likely unsafe for more than half a decade. In 2019, the High Court determined that Horizon was a flawed system and produced false results. In 2021, quashing the convictions of 39 sub-postmasters, the Court of Appeal found that the Post Office had abused its powers by prosecuting the sub-postmasters without properly investigating and failed to disclose evidence (of Horizon’s flaws) that would exonerate them. Judges concluded it “offends the court’s sense of justice and propriety” to have been asked to try the case at all. The decision made the front pages.
Not only did ministers then do nothing, they actively made it harder for the lawyers to do our jobs. Whilst the Post Office case was moving through the courts, a far right terrorist stormed a London solicitors firm with a knife. The ministers were warned that their rhetoric – condemning “lefty activist lawyers” as “traitors”, would encourage further attacks. The government doubled down.
Now ministers can gain politically from the Post Office Scandal, they are using it to set a precedent which compromises the independence of the judiciary. Democracy relies on the separation of powers. Courts, not politicians, must decide whether people are guilty or innocent of crimes. Justice must be based on facts and law, not political convenience.
This isn’t just high-minded principle. The independence of the courts is a vital guarantee of individual rights. Indeed, without that independence, it’s unlikely that the Post Office scandal would ever have been exposed. Without the courts’ decisions in 2019 and 2021, there would likely have been no TV show.
In 2019 Paula Vennels was still sitting on the board of the Cabinet Office. In 2021 the government was awarding Fujitsu £2bn in public contracts whilst accepting donations from one of its directors. It’s unlikely that sub-postmasters would have got justice if it had been left up to politicians.
Most miscarriages of justice (unfortunately) don’t benefit from a TV drama putting victims’ cases. The victims of injustice are usually people despised or scapegoated by those in power. The Windrush Scandal targeted immigrants (several thousand victims still haven’t received compensation), many of the victims of Grenfell Tower were benefit claimants, the Guildford Four and Birmingham Six were Irish (when Irish people were demonised by the government), the victims of Hillsborough were working class. Only independent courts and inquiries, willing to make decisions that politicians don’t like, can be trusted to draw out the truth in these cases.
The PM says these are unique circumstances, they won’t set a precedent. But the government is already seeking to undermine the independence of the courts across the board.
Last year, a cross-party committee of MPs found that ministers had put inappropriate pressure on judges to treat the government favourably. The Rwanda Bill, currently going through Parliament, allows politicians to dictate to the courts that they must treat Rwanda as safe even though the courts have found, as a matter of fact, that this is not true. Breaking the separation of powers may be for a virtuous cause this time, but it looks likely to set a precedent which facilitates the persecution of refugees.
There is already an effective mechanism to review the outstanding convictions. The Criminal Cases Review Commission can refer miscarriages of justice to the Court of Appeal (as it did in the case of my clients). The Court may overturn convictions it considers “unsafe”. With the precedents established in 2019 and 2021, overturning the remaining convictions should be a fairly simple process.
Except that the government has cut the CCRC’s budget, in real terms, by 60% over the last decade. The justice system as a whole has been cut by 40%, leading to the highest backlogs ever recorded. Barristers long-ago warned of the likely impacts of these cuts but were ignored. The same ministers now use the slowness of the justice system to justify undermining the Courts’ independence.
Britain doesn’t have a written constitution. There are few hard rules to guard our democracy. We rely on politicians knowing where the line is and not crossing it. Politics must stop at the constitution’s edge. If politicians can cross the line for a virtuous cause, they will find it easier to cross for more dangerous reasons.
Sam Fowles is a barrister, author, and columnist. He is on X