Weekly Notes: legal news from ICLR, 26 April 2021

This week’s roundup of legal news and commentary features a massive miscarriage of justice and a much criticised report on race. Plus new cases and comments on ICLR.3

Vindication at last: the Great Post Office Scandal. (With thanks to Varchas V Patel for photo.)

Crime

Miscarriage of justice

Last week the Court of Appeal, Criminal Division quashed the convictions of 39 sub-postmasters and other branch staff who had been prosecuted by the Post Office for theft, fraud or false accounting in reliance on evidence from a computer system that turned out to be seriously error-prone and unreliable. In Hamilton v Post Office Ltd [2021] EWCA Crim 577, the court accepted that their trials had not been fair and that the Post Office’s failures of investigation and disclosure were so egregious as to make their prosecutions “an affront to the conscience of the court”.

This decision follows the quashing of six similar cases at Southwark Crown Court last year (see Weekly Notes, 14 December 2020) and there will be many more in what has become a saga of institutional oppression, obstruction and delay going back nearly two decades. It has been described as the “widest miscarriage of justice in UK legal history”.

The problems began with the introduction in 2000 of an ambitious new IT system called Horizon, developed by Fujitsu at a cost of £1bn, to manage the accounts of local post offices up and down the country. (One of its advertised benefits was to “reduce the risk of fraud and payment errors and develop new revenue opportunities”. That now sounds horribly ironic.) Sub-postmasters, who run local post office branches on a franchise basis, were obliged to use this Horizon accounting system. But many of them became aware of errors in the accounts it produced, and when they sought technical support from the Post Office, they were accused of having themselves stolen the money which the system said had gone missing. Significantly, many of those who raised the issue was told they were the only person who had problems, and that the system was working perfectly for everyone else. Cowed into submission, some paid in their own money in just to resolve the issue and make it go away, only to see the shortfalls continue and grow. Many hundreds of them were prosecuted by the Post Office, which for historical reasons has its own department for prosecuting theft and fraud in connection with the postal services, and which now turned its sights on its own people. Growing evidence of faults in the Horizon system were ignored or denied as the Post Office apparently dealt with an unprecedented epidemic of dishonesty amongst its own sub-postmasters. Presented with apparently impregnable computer evidence against them, and often forced to represent themselves in court, the accused sub-postmasters either pleaded guilty or were convicted.

The Post Office has not only pursued the sub-postmasters with prejudicial zeal, acting in its own interests as a private prosecutor and often without the objectivity or respect for fairness that ought to have been owed to the defendants, but it has also resisted with malignant stubbornness the civil proceedings brought against it by a group of the victims, running up massive costs on both sides which have inevitably eaten into the compensation eventually, and grudgingly, offered in a settlement under which it still refused to concede any liability.

The problems with Horizon were reported early on by Computer Weekly; there has been excellent investigative coverage from Nick Wallis, working both as a freelancer and legal blogger and with the BBC (which devoted a Panorama investigation to the scandal), and in Private Eye. After the matter came to attention of some MPs, alerted by constituents, they helped persuade the Post Office to engage an independent firm of forensic accountants, Second Sight Support Services Ltd, whose initial report found numerous faults with the Horizon system. This prompted a mediation scheme under which the aggrieved sub-postmasters were entitled to seek documents and evidence to support their claims for compensation, but after initially complying, the Post Office became more and more obstructive and uncooperative, the mediation scheme eventually ground to a halt and a final report from Second Sight was not published.

The civil proceedings were eventually brought by a group of 555 claimants with the assistance of litigation funders whose portion, when the matter settled, ate significantly into the sums available for distribution to the litigants. Nevertheless, it was only with their acceptance of the risk of failure that the litigation could proceed at all. Sitting in the Technology and Construction Court (which usually deals with complex building and engineering disputes) Mr Justice Fraser applied firm case management to the myriad issues, dividing them into successive stages; but after he had issued interim judgments in favour of the claimant sub-postmasters, the Post Office, seeing the way things were going, sued for peace (after a fashion), agreeing to a settlement worth just under £58m, but only on the basis they did not have to concede liability. Nevertheless, the judgments already given against them were a powerful boost to the appeals of the many hundreds of sub-postmasters who had been convicted, some as long ago as 2003, and whose appeals were being referred, via the Criminal Cases Review Commission, back to the Court of Appeal. Clearing their name took priority over financial compensation. For some it came too late, with lives or livelihoods long lost.

With the publicity now given to the cases of those whose appeals have now been allowed, and the many more awaiting justice, the indignation of the national press has suddenly been awoken and the conscience of politicians has finally been pricked. Questions are being asked about the role of senior Post Office executives, their lawyers, the relevant government departments, and the supposedly independent National Federation of Sub-Postmasters (NFSP) in this long and disgraceful saga. A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, has been established to investigate the scandal, but there are concerns that it does not go wide enough: its terms of reference do not include POL’s prosecution function or matters of criminal law. There are now calls for a fully empowered statutory inquiry, as well as for investigation by the legal regulators.

For a gripping and at time enraging account of the whole scandal from the start, BBC Sounds has this: The Great Post Office Trial

See also:

Discrimination

Last year, in the midst of the Black Lives Matter protests that erupted in response to the death of George Floyd in Minneapolis (for which policeman Derek Chauvin was last week convicted of murder), the government set up a Commission on Race and Ethnic Disparities, to be chaired by the educationalist Lord Sewell, to look into the current state of race relations in the UK and what could be done to eliminate or mitigate disparity. The Commission’s report was released at the end of March, and almost immediately to have provoked a storm of criticism and controversy.

Reading the report itself, it is hard to understand why it should have been received quite so badly. The commission included ten members, all but one from minority ethnic backgrounds, drawn from a range of fields including science, education, economics, medicine, policing and the media. According to their chair, Lord Sewell, their diversity “enabled us to challenge conventional approaches”. They were supplied with data from the Cabinet Office’s Race and Disparity Unit, set up in 2016. The picture they, or the report, presented was a mixed one, critical of what one might call the orthodoxy of “institutional racism” and the catch-all convenience of a label like BAME, refusing to regard all minorities as facing the same societal hurdles, and expressing surprisingly positive views about the benefits of some types of family culture and communal aspiration. Many of the disparities were identified as affecting poorer white communities just as badly if not worse than those from non-white groups. Rather than looking back to the injustices of the past, the report claimed to speak to “a new period, which we have described as the era of ‘participation’.” According to its introduction:

“Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation, and can be simply implicitly accepted rather than explicitly examined. The evidence shows that geography, family influence, socio-economic background, culture and religion have more significant impact on life chances than the existence of racism.”

Almost as soon as it was published (a selective account having first been leaked to the press), the report was challenged. It was said that parts had been “re-written” to suit the government’s agenda, that it did not represented the views of some of the commissioners, who did not support all of its recommendations. Samuel Kasumu, No 10’s most senior black special adviser, who had set up the commission, resigned from his post on the day the report was published, according to the Guardian, “aghast at its final findings”. You wonder what he expected. There were suggestions that in leaking about the report, the government sought to present a picture of what it thought the report ought to have said ( a bit like it seems to have done with the Faulks Review of Administrative Law) and it was this that provoked the ensuing rumpus.

The report’s thoroughness and scope were compared unfavourably with earlier reports about racial issues, such as the 1999 Macpherson Report into the Stephen Lawrence murder investigation, which established the concept of “institutional racism” as something the Metropolitan Police were labouring under at the time, and the 2017 Lammy Review of racial issues in the justice system. The Guardian subsequently reported that “At least 20 organisations and individuals who were listed as stakeholders in the government’s race disparity commission have distanced themselves from the report and its findings.”

To make matters worse, the United Nations then announced that a “Working Group of Experts on People of African Descent categorically rejects and condemns the analysis and findings of the recently published report by the UK’s Commission on Race and Ethnic Disparities”. Given the UN’s somewhat chequered reputation on what one might call human rights interference — an earlier “UN working group” found Julian Assange to be in “arbitrary” detention in the Ecuadorian embassy where he was hiding to avoid extradition : see Weekly Notes, 5 February 2016; and it still beggars belief that the UN could appoint a country like Saudi Arabia, (in whose embassy in Turkey a foreign journalist was hacked to pieces to silence criticism of its regime), to chair its Human Rights Panel — this was not exactly helpful. (It certainly makes an easy target for the self-styled anti-woke brigade, as barrister Andrew Tettenborn reveals in The Critic, Race to the bottom.)

But perhaps the really damaging criticisms of the Sewell report relate to its use of data: see, for example, two blog posts by Dr Jeni Tennison OBE, vice president of the Open Data Institute:

Writing in Tortoise, Don’t turn the clock back on racial justice, Hashi Mohamed is also critical of the report, saying “it reads like the work of a group of individuals who had clearly decided upon their conclusions before a single word was written”.

Given the claims of some members of the group, perhaps it’s not even that. But whatever the report says, and whether or not you agree with its recommendations, the critical test will be whether any of them is actually implemented, or whether (like the Lammy Review) it is largely left on the shelf. In that case the suspicion must be that it was only ever intended to be a form of window dressing, to make the government look as though it was doing something, in response to the Black Lives Matter movement.

New case law on ICLR.3

A selection of recently published WLR Daily case summaries from ICLR.3:

ARBITRATION — Award — Serious irregularity; PRIVY COUNCIL — Jurisdiction — Third appeal: RAV Bahamas Ltd v Therapy Beach Club Inc, 19 Apr 2021 [2021] UKPC 8; [2021] WLR(D) 212, PC

CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Stay of proceedings: WWRT Ltd v Tyschenko, 21 Apr 2021 [2021] EWHC 939 (Ch); [2021] WLR(D) 226, Ch D

COSTS — Security for costs — Limited company: Infinity Distribution Ltd v The Khan Partnership LLP, 20 Apr 2021 [2021] EWCA Civ 565; [2021] WLR(D) 222, CA

EMPLOYMENT — Unfair dismissal — Re-engagement: Kelly v PGA European Tour, 19 Apr 2021 [2021] EWCA Civ 559; [2021] WLR(D) 217, CA

INSOLVENCY — International jurisdiction — European Union: ZM (liquidator of Oeltrans Befrachtungsgesellschaft mbH) v EA Frerichs, 22 Apr 2021 (Case C-73/20); EU:C:2021:315; [2021] WLR(D) 232, ECJ

MARRIAGE — Financial provision — Variation of prescribed procedure: AS v CS, 19 Apr 2021 [2021] EWFC 34; [2021] WLR(D) 230, Fam Ct

POLICE — Complaint — Investigation: R (Rose) v Chief Constable of Greater Manchester Police, 19 Apr 2021 [2021] EWHC 875 (Admin); [2021] WLR(D) 218, QBD

PUBLIC HEALTH — Statutory nuisance — Notice of intended proceedings: Allen v Ealing London Borough Council, 20 Apr 2021 [2021] EWHC 948 (Admin); [2021] WLR(D) 219, DC

REVENUE — Landfill tax — Taxable disposal: Devon Waste Management Ltd v Revenue and Customs Comrs (Biffa Waste Services Ltd v Revenue and Customs Comrs), 22 Apr 2021 [2021] EWCA Civ 584; [2021] WLR(D) 231, CA

TRUSTS — Resulting trusts — School site: Rittson-Thomas v Oxfordshire County Council, 23 Apr 2021 [2021] UKSC 13; [2021] WLR(D) 227, SC(E)

Recent case comments

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

NIPC Law: Toy Wars — Cabo Concepts v MGA Entertainment: Cabo Concepts Ltd v MGA Entertainment (UK) Ltd [2021] EWHC 491 (Pat)

Nearly Legal: For this relief, much thanks: Keshwala v Bhalsod[2021] EWCA Civ 492; [2021] WLR(D) 207

Nearly Legal: Section 204 appeals — weighing medical evidence and ending ‘relief duty’: Perrott v Hackney London Borough Council (unreported)

Free Movement: Lack of Rule 35 process in prisons is unlawful, Court of Appeal finds: R (MR (Pakistan)) v Justice Secretary [2021] EWCA Civ 541; [2021] WLR(D) 197

Inforrm’s blog: Australia: ‘World first’, Federal Court found Google misled users about personal location data: Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367

Free Movement: Passports can be issued to British children abroad without abusive father’s consent: R (GA) v Secretary of State for the Home Department [2021] EWHC 868 (Admin)

Free Movement: System for investigating deaths in immigration detention declared unlawful: R (Lawal) v Secretary of State for the Home Department [2021] UKAITUR JR006262020

RPC Perspectives: Bennedy’s Developments — Tribunal allows taxpayer’s appeal against daily penalties for late filing of ATED return: Bennedy’s Development Ltd v Revenue and Customs [2021] UKFTT 21 (TC)

RPC Perspectives: It’s Cocoa, Jim, but not as we know it: Court’s modern interpretation of underwriters’ and brokers’ duties #3 — A broker’s harsh reality: ABN Amro Bank NV v Royal & Sun Alliance Insurance plc [2021] EWHC 442 (Comm)

ICLR Blog: Release of documents by or before the Upper Tribunal: DVLA v Information Commissioner & Williams [2020] UKUT 310 (AAC)

UK Human Rights Blog: Testing the boundaries of causation in mesothelioma deaths: R (Wandsworth London Borough Council) v Inner West London Senior Coroner [2021] EWHC 801 (Admin)

Other recent publications

Dates and Deadlines

Inner Temple via Zoom — 6 May 2021 at 6:00 pm

Webinar discussion with The Rt Hon Lord Neuberger of Abbotsbury and The Rt Hon The Lord Falconer of Thoroton on 6 May as part of Inner Temple’s Social Context of the Law Series. Inner Temple’s tweet say open to all, but the booking page says it’s “Open to all Students and Members”. Best to check first. Event Manager, Member Events Team: members@innertemple.org.uk

Virtual event — 23 June 2021 and 15 September 2021

Bloomsbury’s Children Law half-day online conference on 23 June will be chaired by Judge Reardon. Topics include the 1996 Hague Convention, International child abduction and asylum, Parental Alienation and Domestic abuse in the family courts 20 years after Re: L. Early bird tickets are now on sale.

The Current Issues half day online conference on 15 September will be chaired by Mr Justice Keehan QC and include topics such as Divorce after Brexit, Mediation and other forms of non-dispute resolution, Maintenance, and Pre-Acquired Assets.

And finally…

reminds us how bored we are getting with the (now loosening) lockdown and longing for a return to the office and the prospect of tidying our paperclips and sorting through piles of unread periodicals…

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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