A paper written for PPMI: Progressing Prisoners Maintaining Innocence
General Considerations Related to the Sub-Postmasters’ Scandal that Highlight Weaknesses in the UK Justice System
The furore over the Sub-Postmasters’ miscarriage of justice has awakened the general population to the fact that the UK “justice” system is not infallible. However, for those of us who have been fighting for years to improve what can only be described as a failing estate – from the deplorable state of our prisons, to lack of access to rehabilitation facilities, to condemnation of the innocent, right down to the dubious practises of our 45 police forces, their accomplices in the Crown Prosecution Service and the government ministers responsible – this scandal is only unique by its size and the public’s awareness of it due to a television drama. In this paper I try to set out some of the systemic failings that are not being focused upon in the mainstream media.
- The Inquiry
The first indicator of a systemic problem in presentation of this scandal is the title of the inquiry: Post Office Horizon IT. The implication is that the real objective is to discover who knew what and when concerning the failings of the IT system, with a foregone conclusion that blame will be laid upon the Post Office and Fujitsu. An uninformed observer might draw the conclusion that a few similar miscarriages, whilst unusual, could be the fault of a rogue software company and a greedy state-sponsored organisation. It is clear, however, that 900 innocent victims of the same miscarriage can only point to an obvious failure of a justice system already on its knees.
- The Post Office
It has also been said that a major problem is the ability of the Post Office to bring private prosecutions. It is as if no judges, magistrates, barristers, solicitors were involved. However, 283 cases (according to the BBC – some statistics in this inquiry are still inexplicably vague) were brought by other bodies including the Crown Prosecution Service (CPS). Both the Post Office and the CPS brought prosecutions before courts by way of the legal profession with a similar reliance upon a minimum of integrity of the individuals external to their organisations.
There are clearly economic consequences of attributing blame primarily to the Post Office, but, if the Post Office goes broke, it will be bailed out by the taxpayer. If this happens and no changes take place to the wider UK justice system, then the inquiry can only be regarded partially as a waste of time and money and as a means of avoiding revelations of the underlying problem.
Fujitsu UK is merely a supplier of an IT system. If they go broke because of compensation they are forced to pay, another company will pick up the pieces and will possibly do a better job. But that will, again, not solve the underlying problem of the innocent being allowed to be convicted.
Whatever the strengths or weaknesses of any IT system, it will always require maintenance because the software and hardware environments on which it depends will be subject to modification. Maintenance can be performed by the supplier or the user or both. The idea that any system (even the justice system) is infallible is naïve. When changes occur it is often impossible to predict all of the possible situations that might lead to an error. So, there needs to be a support function capable of monitoring system use and noting when similar errors are occurring. Normally there would be a “ticket” issued or some other mechanism to allow multiple people to see fault descriptions and remedial actions taken, a workaround found, and the bug fixed a short time later.
Passing the blame from the Post Office to Fujitsu or vice versa is totally unhelpful. They can both be blamed for a cover up – as can many other institutions – but not for the weaknesses in our justice system. There is nothing, absolutely nothing, new in what I have written in this paragraph. Blaming an IT system for the failure of a justice system is a deliberate attempt to place blame elsewhere than the justice system itself.
- The Investigation
The investigation seems to have been carried out in a similar way to typical police investigations. And let us not be fooled into thinking that somehow this scandal did not involve the police. Suspects have been lied to, bullied and shamed and there has been a general presumption of guilt. To claim that the Post Office investigation had a problem of moral compass is to ignore the fact that the primary motivation of any investigation, as things stand in the UK, seems to be to successfully gain a conviction. If the truth is discovered during the process, that seems to merely be a public relations bonus. The problems, as the Attorney General said after the Liam Allen case recently of not pursuing all reasonable lines of enquiry and non-disclosure of evidence that might be helpful to the defence, existed before this latest scandal was revealed to the wider public and, sadly, still exist. The Malkinson affair is just another example of the existing overall scandal which also shows that the entire system of appeals is malfunctioning.
- The Crown Prosecution Service
It is important to note that the CPS prosecuted a large number of Sub-Postmasters – it is extremely curious to note that some sources say over 200 and some say more than 30 – and yet we hear very little of their involvement. If there was, or is, a desire to ensure that justice is or was done, how can any professional legal body, including the CPS, not question why so many otherwise law-abiding people should have suddenly turned to crime? Why were the deficiencies in lines of enquiry and disclosure as set out in the previous paragraph not examined thoroughly. Moreover, how was the “public interest” served by these prosecutions given that that is supposed to be one of the guiding principles of the CPS. It is inconceivable that many in the CPS were not aware that this was a potential miscarriage of justice. But, of course, that is assuming that the CPS regards it as vital to avoid miscarriages of justice rather than being concerned merely with the “public interest” as it sees it, and the likelihood of gaining a conviction.
- The Legal “Ecosystem”
We are asked to believe that the solicitors, barristers, magistrates, judges et al, working for the Post Office, the CPS or the defendants, and the various police forces did not discuss these matters amongst themselves when, at one point, it is estimated that there was one case being prosecuted every week! Moreover, the cases wherein legal teams asked innocent defendants to plead guilty to minimise punishment are a massive indictment of the “system”. It is vital to state that the Post Office scandal merely brings this odious practice into public perception.
If these few paragraphs merely highlight areas of concern among well-meaning people who subsequently feel that a much wider scope must be given to this inquiry, then it will have done its job. Our overriding concern must be to improve the justice system to avoid this happening again, regardless of the scale or gravity of the miscarriage of justice. Pretending that, overall, everything’s fine except that, in this case, there were some people who abused an otherwise trustworthy system is just plain wrong – just as having an over-abundance of faith in a software system is a danger to us all.