David Davis MP writes for the Telegraph on the Government’s approach to resolving the Horizon Scandal
As published by the Telegraph
In recent weeks the Post Office Horizon scandal has, at long last, shot to the top of the political agenda. The public’s attention has understandably been grabbed by the awful story of the postmasters who were bullied and abused by the state – some so severely that they took their own lives. Reputations were wrecked, homes lost, families wrenched apart and lives turned upside down. Every individual victim’s story makes for harrowing reading.
Now, discussion is focused around the thorny question of how to deliver the right outcome for the many victims of this disastrous miscarriage of justice. The scandal itself is clear for all to see – but the answer to the problem is more complicated.
The Government is quite right to urgently address the matter of the exoneration of innocent postmasters. But in the understandable rush to finally draw this decades-old disgrace to a close, we must not abandon due process. After all, a failure to follow proper processes is what got us into this situation.
At the moment, it seems likely we will find ourselves in the invidious position of having Parliament deciding on matters of criminal guilt. The Government’s attention is focused on passing legislation that will exonerate all postmasters, effectively replacing the decisions of the courts that originally ruled on each case.
We have not experienced a situation like this, with Parliament making judicial decisions on criminal matters, since the Civil War. There is a reason for that. It has significant, potentially alarming, constitutional implications. It sets a precedent for future controversial criminal cases, suggesting part of Parliament’s role is to decide who is guilty and who is not. Parliament could easily end up going on to make other significant interventions in criminal cases, including ones that are far less clear-cut than those related to Horizon.
As Ken MacDonald, former Director of Public Prosecutions, recently put it, “Future parliaments are sovereign too, and each will have the example of this legislation to draw upon for good, or more likely for ill, and forever.”
It is a key foundation of our democracy that matters of criminality are dealt with by the judicial system. And since the creation of the Supreme Court, judges have been entirely separate from both Houses of Parliament. That is because Parliament is a political body. The courts, at least in principle, are not. Their job is to interpret and apply the law, whereas Parliament’s job is to write it. Parliamentary exoneration would not be much different from a royal pardon, and it should be understood that royal pardons really mean “I forgive you for the crime”, rather than ”you are not guilty”.
What is more, I know that some postmasters themselves do not want a mass Parliamentary exoneration. This is in part because having Parliament replace the courts’ judgments will mean the innocent will never have justice delivered in court.
This is symbolically important. Being cleared by the institution that originally condemned you is a real sign of vindication. But it is also important to understand that any judicial decision by Parliament is open to the accusation of being subject to undue political influence. This will make it harder for postmasters to totally clear their names, because others may doubt Parliament’s decision.
Furthermore, a tiny minority of postmasters may in fact have been guilty of fraud – maybe a couple of dozen out the 900 overall. To exonerate all postmasters in one fell swoop would mean letting off a handful of actual criminals, who would also then end up being compensated by the taxpayer. Think of that – a crook walking away with hundreds of thousands of pounds of our cash. One of the postmasters was extremely vocal to me about this possibility.
Indeed, a mass exoneration by Parliament would lump the genuinely innocent majority in with the potentially guilty minority, undermining the whole process. It would be impossible for the public to know which postmasters were really wronged, meaning the whole lot would remain surrounded by an air of suspicion. This is hardly what justice looks like.
The better solution would be for the courts to consider all the cases where the convictions were based on Horizon evidence in one go. It would be perfectly possible to take three or more former Supreme Court judges out of retirement, give them a courtroom and task them with resolving all these cases in three months. Many of the cases where the evidence relied solely on Horizon could be dealt with in blocks of several hundred, since they will entail a straightforward set of decisions. Where the case is more complex, it will require a rather longer investigation, but that is eminently doable.
There is a third category – the cases for which, as one law officer said to me, “The Post Office have lost the files”. Since British law presumes innocence, and there is no proof of guilt in these cases, the postmasters in question would swiftly be found to be innocent.
That way, the issue would be dealt with quickly, without muddying the distinction between Parliament and the judiciary. It would avoid the problem of conflating the cases of the vast majority of innocent postmasters with a possible tiny minority of guilty ones. And it would ensure the victims are properly exonerated in court, rather than having Parliament declare them not guilty.
I am told the judiciary are uncomfortable with this. That may be true, but I am certainly aware of some who think it is a much better way to go. In the final analysis, we could overrule them with an Act of Parliament, but it would be much better for the Ministers to incorporate their thinking in the final resolution.
The judiciary themselves have made significant mistakes in this matter and should help shoulder some of the responsibility for resolving it in a way that best serves justice and gives the postmaster victims what they deserve – a proper finding of innocence.
And anyway, judges should be much more worried about Parliament absorbing their authority than about having to sort this awful mess out themselves.
We have to get this right. We owe that to the postmasters. But there will, no doubt, be more scandals in future, and how we tackle this one will define how we deal with them.
When a public body is responsible for a terrible scandal such as this one, the state must take full responsibility by ensuring a proper process of exoneration. This is the way to do it.