It was unprecedented, the minister conceded, but the legal profession was quick to insist that Wednesday afternoon’s developments should not be mistaken for the setting of a precedent.
Addressing the House of Commons over the Post Office scandal that has erupted this week, the minister for postal affairs, Kevin Hollinrake, announced that the government would be driving a horse and cart through the constitutional separation of powers of the judiciary, executive and legislature.
Legislation will be drafted to exonerate each of those convicted on the basis of misleading Horizon computer evidence in England and Wales between 1999 and 2015, when post office operators by the hundreds were being erroneously accused of embezzling money due to the faults of the accounting system.
The devolved administrations are expected to treat such convictions in Scotland and Northern Ireland in a similar fashion.
There are 900 such cases in total, of which just 95 have been overturned so far in a court of appeal. Given the indication of support from Labour, Westminster is expected to enact legislation providing for this blanket exoneration by the end of the year.
The upshot will be that the decisions of the courts will be overturned simply because MPs wish them to be so.
Many moved by the horrific personal stories of those caught up in what has been described as the country’s greatest scandal will be wholly supportive. But it is also a grave moment. It should not be equated with the granting of a pardon to the soldiers shot for cowardice in the first world war or those convicted over homosexual conduct in the armed forces.
Those convictions were not expunged but disregarded. The state makes every effort to act as if such convictions did not happen but they do not disappear. It is after all for the courts, and not a government, to determine a person’s guilt. The crown does not have a prerogative of justice but only a prerogative of mercy.
The announcement on Wednesday afternoon turns the constitutional order upside down.
The government had few good options, said David McNeill, the director of public affairs at the Law Society, which had cautiously welcomed the announcement. But, he added, all those who cared about the rule of law needed to be deeply concerned.
“Are we feeling queasy about it? Are we looking down with sort of queasy sense of vertigo? Yes, we are”, he said. “It breaches a fundamental principle which is effectively the government legislating against decisions, against the independence of the courts. These are exceptional circumstances, it is an extraordinary measure. It must not, must never be seen as a precedent.”
What then are these extraordinary circumstances? There are the appalling failures, and indeed “malevolence”, as Hollinrake put it, of the Post Office’s prosecution of innocent people based on evidence many knew full well was not to be trusted. The courts did not have such evidence at the time.
Then there is the fact that many convicted post office operators have been reluctant to apply to have their convictions overturned as they simply could not face further engagement with authority. Many are of an age where time is not on their side.
But a big part of the explanation for why the government is legislating in such a way lies in the incapacity of the appeals process to deal with the sheer number of cases involved.
The extraordinary circumstances, McNeill said, included the running down over many years of the level of resourcing in the criminal justice system, leaving it unable to fulfil its role.
“Justice delayed is a denial of justice,” he said. “With the state of the courts at the moment, realistically, it can’t be adapted. It doesn’t have the capacity to deal with these hundreds of cases. The Criminal Cases Review Commission is already overwhelmed.
“Every single court in the land, every single type of court is facing growing backlogs. There’s not enough judges, not enough court staff, not enough lawyers, to be able to progress just a normal caseload and then for the whole system then to have these hundreds of some quite complicated cases coming through, it does not have the capacity to do it. How many years it would take to deal with these cases through the normal system? Many, many years, maybe a decade or more.”
Hollinrake described the decision to legislate rather than leave those convicted to the overwhelmed courts system as choosing a “lesser of two evils”. There will probably be some among those exonerated who may have been guilty of a crime. The only mitigation offered so far from the government to avoid that injustice is that those seeking compensation packages will need to sign a statement in which they state that they have not committed the crime.
The concern for senior lawyers was, however, more about drawing a line in the sand, said McNeill. “Hollinrake was very clear in his statement in the house today that they recognise the constitutional principle, the line they are crossing and I think as the Law Society we would want to see a lot of that made explicit in debates in Hansard and potentially on the face of the bill,” he said.
“It might sound very unlawyerly but they need to make those statements and do so with a shovel”.
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