“It is unfair to extrapolate the errors made by the Post Office to private prosecutions as a whole”. Edmonds Marshall McMahon quoted in The Times article.

The following article appeared in The Times on January 18th 2024. Written by Catherine Baksi.

Postmasters were wrongly convicted for offences of theft, fraud and false accounting based on evidence from Horizon

Pressure is mounting on ministers to tighten the rules that allow individuals and organisations to bring private prosecutions — with the impetus coming from the fallout of the Post Office scandal.

Sir Bob Neill, chairman of the Commons justice committee, called for the government to strengthen the safeguards in place for those subjected to private prosecutions.

In a letter to the lord chancellor, Alex Chalk KC, Neill urged ministers to look again at the recommendations of his committee’s 2020 report on the issue.

In response to concern over the growing numbers of private prosecutions, the committee called for a binding code of standards for private prosecutors, an inspection regime and the creation of a power to strip an organisation of its ability to conduct them.

The government rejected those proposals, but agreed to take forward two others. At the beginning of 2022 it opened a central register of private prosecutions — but officials were unable to provide any information about the number of cases since then or any details about who brought them, the offences prosecuted or the conviction rates.

Ministers also agreed to implement measures to limit the costs that private prosecutors can recover from the taxpayer to legal aid rates — in line with the rules for acquitted defendants who have paid privately for a lawyer — but this has yet to be introduced.

In 2022 a rule was introduced to ensure that defendants who were the subject of private prosecutions were told of their right to have the case reviewed by the Crown Prosecution Service (CPS), in line with one of the committee’s recommendations.

Between 1999 and 2015 more than 700 postmasters were convicted in cases brought by the Post Office, using its powers to investigate and prosecute cases itself despite being the alleged victim, rather than referring cases to the police. Individuals were convicted for offences of theft, fraud and false accounting, based on evidence from the flawed Horizon software made by Fujitsu, which in many cases wrongly suggested that money was missing.

While 93 postmasters have had their convictions overturned, ministers are drawing up a bill to exonerate all those whose prosecutions were based on losses shown by the Horizon software.

The continuing inquiry into the scandal — dubbed the biggest miscarriage of justice in British legal history — has revealed that the Post Office was aware of the problems with Horizon, but failed to disclose that evidence to those it prosecuted. The Post Office brought the majority of cases, but the CPS has confirmed that it identified 11 files that it was involved in where the evidence was linked to Horizon.

Neill tells The Times that the number of cases being brought by the Post Office might have “rung alarm bells” if a register of private prosecutions had been in place. He accepts that there is a “legitimate and proper” right for people and organisations to bring private prosecutions, but argues that there must be a means of guaranteeing to the public that they are conducted with the same standards of independence and objectivity as public prosecutions, with safeguards to prevent abuse. Neill hopes that ministers will revisit the committee’s recommendations, suggesting that the “mood music has changed”.

Sam Townend KC, chairman of the Bar Council, which represents barristers in England and Wales, echoes his call. “Those bringing private prosecutions almost inevitably have a vested interest,” he says, highlighting that the CPS was created in the 1980s to separate the decision on whether to prosecute from the police who investigate alleged crimes.

Others call for more drastic reform. Joe Rich, a regulation specialist barrister, suggests that the private prosecutions are “archaic” and should no longer be permitted. He says that if they remain, bodies bringing them for non-imprisonable offences, such as TV Licensing for licence fee evasion, should not be able to use the controversial single justice procedure, in which magistrates decide cases administratively without a court hearing. Rich adds that private prosecutions should not be undertaken against children, the seriously ill or the infirm.

Private prosecutions can be brought by any individual or organisation and supporters of the process argue that they are a pragmatic way for victims to achieve justice for offences from large-scale fraud to shoplifting in an otherwise underfunded justice system. One of the most famous cases was the unsuccessful private prosecution brought by the parents of the murdered black teenager Stephen Lawrence.

Tamlyn Edmonds, a solicitor at the specialist private prosecution law firm Edmonds Marshall McMahon, says that the Horizon scandal was the result of the culture and failings of the Post Office and does not suggest “systemic flaws or weaknesses” in the law around private prosecutions.

Edmonds says that it is unfair to extrapolate the errors made by the Post Office to private prosecutions as a whole. “Restricting the right of victims of crime to bring prosecutions would heap one injustice on another,” she says, adding that disclosure failures have also affected CPS cases.

Francesca Titus, a barrister at the law firm McGuire Woods, says: “With the backdrop of the scandal there is a real danger that politicians — in a need to be seen to be doing something — will throw the baby out with the bathwater.”

The Ministry of Justice says that the department “continues to keep the policy in relation to private prosecutions under review” and will carefully consider any recommendations made as a result of the Post Office inquiry.