“Something must be done” is a common political clamour, and it is certainly not one heard only in the United Kingdom. Often it is the precursor of some gesture or gimmick, which may either be unworkable or make things worse. The true purpose of such a demand is usually therapeutic: a thing is wrong, and it will bother politicians and the media until they can feel it has been put right.
In the United Kingdom, however, the something that must be done will be done by primary legislation. This is for two reasons.
First, the (Victorian) doctrine of the supremacy of parliament means that, at least in legal theory, parliament can legislate for anything to apply anywhere and to have effect at any time. As the constitutional writer Ivor Jennings once wryly put it, if parliament enacted that smoking in the streets of Paris was an offence, then it would be an offence. A statute may be unenforceable, it may even be nonsense; but it will still be the law—at least where our domestic law is recognised.
Second, the government of the day can usually rely on a parliamentary majority for its legislation to be passed. This means that if a minister announces that a thing must be done, and if that thing requires a bill to go through parliament, then it is likely the proposal will be enacted in an Act of Parliament.
This combination of constitutional doctrine and parliamentary muscle means that a minister announcing that something must be done cannot be dismissed. Indeed, we should brace ourselves for what will happen next, even if it is ill-advised or counterproductive.
The current political storm about the Post Office scandal has led politicians and pundits to demand that something must be done to swiftly exonerate those convicted on the basis of the now-notorious Horizon IT system. The convictions should be expunged forthwith, and with no delay. The convictions are not only an affront to justice, they are an affront to the conscience of the nation.
The government is thereby considering introducing primary legislation which will en masse declare those held guilty to be innocent, reversing the judgments of the courts for those convicted using Horizon evidence. The case for doing so is said to be exceptional, and anyone sceptical of this rushed legislative proposal risks being tainted as unfeeling.
But even at times when there is loud urgency, it may be sensible to take one step back and look to see if a proposed solution is right in principle and meets the problem that needs to be solved. And in this particular case, there are reasons why this may not actually be the right approach.
The private prosecutions for theft, false accounting and fraud brought by the Post Office based on the flawed Horizon system ended in 2014. This means that none of those convicted as a consequence of those private prosecutions are likely to still be in prison. If any were still serving sentences then there would certainly be urgency, and it would be appropriate for the royal prerogative of mercy—exercised in the granting of pardons—to be issued, releasing any prisoners from their wrongful punishment.
But pardons are a pointless remedy once a punishment has ended, for pardons are about excusing punishments rather than expunging convictions. The pardoned person is still a convicted criminal; it is just that they are formally forgiven and spared their punishments. The criminal liability stands.
Given the delays since at least 2014, and given that none of those privately prosecuted are likely to be in prison, it is hard for a minister to maintain in 2024 that this mass miscarriage of justice is suddenly an exceptional situation, especially as almost all the material facts have been known since at least 2019. The only difference this year is a well-received television drama.
There are also other complications to consider. For example, there are instances of Horizon evidence being used in prosecuting other crimes for which an individual is still serving a prison sentence, including at least one case of murder. There may also have been Crown Prosecution Service prosecutions since 2014 where Horizon evidence has been used. Not all prosecutions where Horizon evidence was in play were privately brought by the Post Office.
What would make this a genuinely exceptional situation would be if there was no alternative to primary legislation—that is, if the problem could not be solved in any other way. But this problem could be solved easily by less drastic measures than the legislature determining the guilt or innocence of individuals.
The Criminal Cases Review Commission (CCRC) is the under-resourced agency charged with dealing with applications for convictions to be reviewed. So far it has successfully referred about 70 cases relating to the Post Office scandal, of which around 62 have been quashed.
A modest increase in its annual budget—currently a mere £7.5m—would allow it to hire additional investigators needed to clear the backlog. A one-off payment would enable the CCRC to refer all Post Office cases within a reasonable timeframe.
And if it is the case that the CCRC has the wrong administrative priorities in place, or is applying the wrong approach, then there are various means by which ministers can improve the CCRC’s approach.
The CCRC process could itself be made easier and less onerous. The presumption should be made in favour of anonymity, rather than individuals having their names published against historic convictions in the law reports. It should also be made easier for posthumous convictions to be referred.
And if the statutory test for the CCRC to refer a case—that there is a realistic prospect of the conviction being overturned—is too stringent, then that could be amended by primary legislation. It should be made straightforward to get the case before an appeal judge within a short period and the conviction properly overturned.
Parliament is not equipped to dispense criminal justice in individual cases
And ministers could direct the Post Office to be more helpful. The government, which owns and ultimately controls the Post Office, could direct it not to oppose the CCRC applications to court; so far it seems that the only acquittals have been when the Post Office has not opposed the applications. Indeed, the Post Office could be directed to routinely support the references. Any cases without merit can be left to the Court of Appeal to reject.
Another sensible measure would be to remove any need for the conviction to be overturned before compensation is paid. This may, of course, mean that some compensation goes to those with valid convictions, but that would be a proportionate risk in the circumstances. Any delays by the CCRC and the Court of Appeal should not hold up compensation for the victims of this scandal.
If there was genuine political will—and thereby the will to expend public money—the general problem of the wrongful convictions could be solved without en masse acquittal legislation.
That primary legislation be used to determine the criminal liability of individual people is unnecessary in this particular instance, given the availability of alternatives. This is not a situation that requires an exceptional process; it instead requires the acceleration of a process that is already in place.
And such a move will be wrong in principle. For although there is not a strict separation of powers in the United Kingdom, the use of legislation to determine the criminal liability of particular people (and especially to reverse the decisions of the courts) turns the legislature into a version of the judiciary.
Parliament is not equipped to dispense criminal justice in individual cases: it has no relevant rules of evidence or procedure, and it has no impartial and independent adjudicators of fact and liability. There is no prospect of judicial review or appeal. It is almost literally a law unto itself, which is justifiable, perhaps, in its legislative, representative and scrutinising functions, but such a body has no place in determining the legal liabilities of individuals.
Some may also add that the appropriation of such judicial powers by parliament would be a thin end of the wedge. There will be other “exceptional” situations where politicians and the media will insist that the judgments of the courts should be gainsaid. There is force also in this objection, but we do not need to resort to the “thin end of the wedge” argument when something is simply wrong in principle.
Parliament may in theory have the power to prohibit smoking on the streets of Paris, or to declare Rwanda to be a safe country despite evidence showing the contrary. You can purport to do many things with statutes, for they are powerful legal instruments.
But converting parliament into, in effect, the Criminal Court of Appeal in 2024, because of wrongful judgments which ended in 2014—when there are more appropriate remedies in place, only needing better direction and resources—is not a good use of primary legislation.
Of course, there is a powerful counterpoint that the last thing those wrongly convicted want is more process and bureaucracy, but this is where the difference that can be made by political will can be shown. The referrals and acquittals can be speedy if the government wants them to be.
The important thing is to get each and every wrongful conviction overturned in the appropriate manner, and not to salve the consciences of politicians and pundits who in 2024 realised that they did nothing to deal with these miscarriages of justice before.
