Weekly Notes: legal news from ICLR, 26 February 2024
This week’s roundup of legal news includes Post Office Horizon scandal, a Jihadi bride banished, open justice, plus recent case law and commentary.
Post Office Fujitsu scandal
Mass exoneration bill
The government has announced its proposed legislation to reverse the criminal convictions of hundreds of subpostmasters, where those convictions depended on unreliable computer evidence derived from the flawed Horizon IT system. The announcement was made in a parliamentary statement by Kevin Hollinrake MP, minister for Enterprise, Markets and Small business.
The Bill itself has yet to appear, even in draft form, but the statement gives some idea of its likely provisions. The effect of the legislation will be to
“quash all convictions which are identified as being in scope. That scope will be defined by a set of clear and objective criteria which will be set out in the legislation and will not require any element of discretion or subjective analysis in order to be applied.”
The objective criteria include
- the identity of the prosecutor (POL or CPS, but not DWP);
- the time of the offence (during the period that the Horizon system and its pilots was in operation);
- the type of offence (relevant offences such as theft and false accounting);
- contractual or other relationship of the convicted individual to Post Office Ltd (sub-postmasters or their employees / officers or family members, or direct employees of the Post Office);
- use of the Horizon system at the date of the offence (and presumably reliance on its evidence).
The Bill accepts that some convictions satisfied by these fixed criteria might have been safe (see more on this below), but the Bill will require anyone seeking financial compensation on the back of statutory exoneration to sign a statement declaring their innocence, on pain of prosecution for fraud in the event of being found to have lied.
The territorial extent of the legislation will be confined to England and Wales, leaving The Scottish Parliament and Northern Ireland Assembly to make their own arrangements for their jurisdictions.
It concludes by saying “The Government will continue to engage closely with relevant stakeholders” — which presumably includes the Post Office, examples of whose engagement is recorded below.
See also: Joshua Rozenberg, Flaw in the ointment (pointing out that the Bill as described currently makes no provision for convicted subpostmasters to publicly restore their good name or even satisfy criminal record checks.)
Honour forfeited
Meanwhile, a reverse process has occurred in the case of Paula Vennells, former CEO of POL, stripping her of the CBE she was awarded in 2019, on the grounds of “Bringing the honours system into disrepute”.
That is how the Cabinet Office have explained it, in the latest addition to its List of individuals who have forfeited their honour. (This sounds like the euphemistic description of a fallen women in a Victorian workhouse.) A more formal and pompous official announcement appears in the Gazette.
In fact it’s because of the way she led — or misled — the Post Office at the height of the scandal, as the BBC has explained. More than a million people signed a petition calling for her to be stripped of her honour, but hopefully this does not set a precedent for mob dishonouring. Otherwise we might as well award honours by popular vote, like judging the celebrity dancers on Strictly.
Who knew what when?
A letter from Nick Read, Vennells’ successor as CEO of Post Office Ltd, to Liam Byrne MP, chair of the Business and Trade Committee, has been published. The letter follows Read’s appearance before the parliamentary committee in January, and provides further detail of what POL knew or ought to have known about Fujitsu’s Horizon IT system. In particular, the critical issue of whether it was possible to access and fiddle with individual subpostmasters’ accounts remotely (a key finding in the Bates litigation). The letter admits:
“It has now become apparent that some individuals within Post Office were aware from at least 2004 that Fujitsu would, in principle, be able to correct transaction data on the live system. In addition, because user data was involved, if the data to be changed had a financial impact on Post Office, then approval had to be given by a senior Post Office manager. Although it appears that the understanding within Post Office at the time was that, in such circumstances, the Postmaster would be aware of the correction. However, both Post Office and the Inquiry are seeking to better understand whether remote alteration of transaction data by Fujitsu also occurred without Post Office’s authorisation (and, it would follow, without the Postmaster’s knowledge).”
The last sentence would perhaps have some bearing on the question of Fujitsu’s liability to contribute to the compensation of the subpostmasters who were robbed of their businesses, livelihoods, reputations, and peace of mind.
Who said what?
The revelation follows reports of a recent dispute between former chair of the Post Office, Henry Staunton, and the government over the reasons why he was abruptly sacked by the Business Secretary, Kemi Badenoch MP, and over the veracity of his recollection that he was told in late 2022 to slow down compensation payouts to victims of the Horizon scandal so the Conservatives could “limp” or “hobble” to the next election thereby saving government money.
Staunton also said the Post Office CEO Nick Read had referred to the 40 Post Office investigators as “untouchables” and alleged that Read (who is beginning to sound like an compulsive letter writer, probably a good fit for the Post Office) had written to Kevin Hollinrake, the Business minister, claiming the reason so few Postmasters had had their convictions quashed was because many of them were “guilty as charged”.
Quis custodiet?
Meanwhile, POL has set investigators onto its own investigators. The BBC is reporting that POL has hired some ex-police and other investigators to “look at allegations against current and past employees involved in the prosecution of sub-postmasters and sub-postmistresses”. Findings from this internal investigation “could be passed on to authorities, including the police, or acted upon by the Post Office itself”.
Given what else we know about POL’s history of duplicity, you might not be surprised if it turned out that the true intention was not to investigate the investigators, but to gather information to help reinforce the original convictions.
Why would they do that? In another recent letter, this time to the Lord Chancellor, Alex Chalk KC MP, sent less than a week after the ITV drama Mr Bates v the Post Office finished airing, the CEO Nick Read said the Post Office would be “bound to oppose” appeals in 369 of the pending cases. In his letter, Read explained:
“In an effort to fast-track the appeals process ourselves and to encourage people to come forward, we asked our external legal advisers, Peters & Peters, together with Simon Baker KC and Jacqueline Carey KC to undertake a review of all our historic prosecutions. The aim of the exercise was to identify potential appeals against convictions which, following the judgment in Hamilton, we would be highly likely to concede in Court. … A natural corollary of that exercise has been to identify those cases in which, on the information available to us and following the judgement in Hamilton, we would be bound to oppose an appeal.”
The accompanying note, from Nick Vamos of Peters & Peters Solicitors LLP suggests that the sudden media and political reaction in the wake of the ITV drama is based on a
“false assumption that there are 700 wrongful convictions, therefore there are hundreds of miscarriages of justice still out there whose route to justice is somehow being thwarted by POL and ‘the system’. In reality, it is highly likely that the vast majority of people who have not yet appealed were, in fact, guilty as charged and were safely convicted.”
This was presumably where that “guilty as charged” assertion came from, that Saunders mentioned, and was no doubt intended to dampen down the government’s somewhat panicky enthusiasm for mass-exoneration by statutory fiat (or magic wand) — something also opposed by the judiciary, on the basis that it’s their job to quash convictions. If only they could just get on with it…
Conflict of interest
Byline Times this month has an article by John Sweeney, the investigative journalist who worked on the 2015 BBC Panorama documentary, Trouble at the Post Office, and the efforts made to prevent or delay its broadcast. At the time, the chair of the Post Office, Alice Perkins, was also on the executive board of the BBC, a conflict of interest that he says appears not to have been registered or declared.
For more on this, see The BBC vs The Post Office: The Undeclared Conflict of Interest as Panorama Investigated the Horizon Scandal
Keep up to date with all the latest scandalous developments by following Nick Wallis’s blog, Post Office Scandal, and signing up for his email alerts. This offers more timely and detailed coverage than media reports, though these have certainly got miraculously better since the ITV series aired.
See also Prof Richard Moorhead’s Thoughts on the Post Office Scandal dealing with lawyerly ethics, or lack of them, in this saga; and the curious omission of two senior judicial figures from the list of future witnesses to Sir Wyn Williams’s inquiry.
And look out for a promised Law in Action special from Joshua Rozenberg on BBC Radio 4.
Immigration
Shamima Begum case
The Court of Appeal has dismissed an appeal against the decision of the Special Immigrations Appeals Commission (SIAC) on 22 February 2023, upholding the legality of a decision by the then Home Secretary, Sajid Javid, on 19 February 2019 to deprive Shamima Begum of her British Citizenship under s 40(2) of the British Nationality Act 1981, after being satisfied that to do so was “conducive to the public good” since she posed a threat to national security. Because the appeal involved closed material procedures dealing with matters of national security, there are two judgments: an open one, and a closed one.
You can read the open judgment on our database: Shamima Begum v Secretary of State for the Home Dept [2024] EWCA Civ 152, and the judgment below (via a link) on BAILII. In giving their unanimous judgment, the court made clear that “Our only task is to rule on whether the decision made under s 40 was unlawful.” This is a classic judicial review approach, but it will inevitably disappoint those who expected the court to take a more interventionist role. They should probably direct their ire towards the administrative decision of which this case was a review.
Shamima Begum was notorious as one of three 15-year-old Bethnal Green schoolgirls, dubbed “jihadi brides”, who were spotted making their way illegally to join the Islamic State in the midst of a warzone in 2015, and lived in Raqqah, the capital of ISIL’s self-declared caliphate. She discovered four years later in a Syrian refugee camp by the war reporter Anthony Loyd. She was then a jihadi widow, pregnant, and apparently unrepentant. Media reports stirred up a wave of populist outrage, and prompted a stern response from the government — effectively banishing Begum and treating her as a traitor.
Her legal challenges to the Home Secretary’s decision have continued for a further five years. The question of whether she could be permitted to return to these shores even temporarily for the purposes of managing and attending her own litigation went all the way to the Supreme Court. Its answer, in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765, was to offer her Hobson’s choice. As the Court of Appeal in the latest judgment, at para 9, explain:
“The Supreme Court held that the Secretary of State acted lawfully in refusing Ms Begum leave to enter the UK for the purposes of her appeal to SIAC. She was given the choice of either having that appeal stayed or proceeding with it notwithstanding that she could not give evidence or be physically present. She elected to proceed with the substantive appeal, which was heard by SIAC from 21 to 25 November 2022.”
Though she had never been there, Begum had Bangladeshi citizenship and would therefore not be rendered stateless by the Home Secretary’s deprivation order. That is a critical distinction under the 1981 Act, because it permitted her to be deprived of a citizenship which she could not have been deprived of if she happened not to have any other. Her alternative and apparently never activated connection with Bangladesh was enough to permit her to lose her British citizenship. The Court of Appeal concludes, rather brutally:
“It could be argued that the decision in Ms Begum’s case was harsh; it could also be argued that Ms Begum is the author of her own misfortune. But it is not for this court to agree or disagree with either point of view.”
In other words, the parcel has been passed back to Parliament, which could amend the relevant legislation to remove the anomaly of the two-tier system of citizenship deprivation; or to the Executive, in the person of the Home Secretary, to not make such a harsh decision. It has been pointed out, for example, that she was a minor at the time when she appears to have been groomed and trafficked to join ISIL, that she is in effect a victim of modern slavery, and that as a nation we should take responsibility for our own criminals and their rehabilitation, rather than parking the responsibility on a country with which they have no genuine connection.
- Delayed Gratification, Moment that mattered: The UK government moves to revoke Shamima Begum’s citizenship
- Spectator, Shamima Begum shouldn’t have lost her British citizenship
- Amnesty International, UK: Judgement on Shamima Begum’s citizenship is ‘disappointing’
- Guardian, Shamima Begum loses appeal against removal of British citizenship
Open justice
Seen but not heard
Justice should not only be done, it should be heard being done. Not for nothing are proceedings in court known as “hearings”. But is it a hearing if you cannot actually hear it?
Journalists covering the recent Assange appeal complained of an inability, from where they were sitting in a public gallery, to hear what was actually going on. Nor is this an uncommon complaint, not only about remote hearings where the technology may be inadequate (and sightlines are often also very poor), but also for in-person hearings where observers have struggled to follow the case because they cannot hear what is going on.
In a recent post on the Open Justice Court of Protection blog (Inaudible in-person proceedings: A practical barrier to transparency and open justice), Tim Sugden, a volunteer from Transform Justice — CourtWatch London, says he has experienced the problem in many magistrates’ courts:
“A common theme that all volunteers expressed in our regular support meetings that they had experienced, across the three courthouses involved and in every courtroom and with every District Judge or panel of magistrates presiding, was the difficulty in hearing, and thereby being able to follow, the proceedings.”
And it’s not just observers who are affected:
“defendants in the dock and their family members and supporters sitting like us in the public gallery, also unsure and confused about what was being said”.
The problem also occurred in the Court of Protection, even in the smaller rooms of First Avenue House as well as the larger old courts in the Royal Courts of Justice. Lack of audibility adds to the mystification already caused by the use of legal jargon:
“what counsel in the front row said was difficult to hear, adding to the other obstacles already present (having little or no background information on the case being heard, the use of legal terminology without explanation, etc). Too often, as had happened every time in the magistrates’ courts, it seemed to become simply a two-way conversation that counsel and the judge were having, with little consideration for the need for others in the room to be able to follow what they were saying.”
Legal bloggers, especially barristers who may be used to being professionally involved in proceedings from the front of the court, have also remarked on the difficulty of following proceedings from the back of the court. Lucy Reed KC, writing on her Pink Tape blog, Legal Blogging — a dry run in the Court of Protection, remarked:
“What was interesting about this hearing was the difference in perspective between the lawyers row in court and the back of court. It feels very different as an observer, for a number of reasons — and my overwhelming thought throughout was that this experience gives some much needed insight into what it may be like as a litigant in person, or a party sitting behind their lawyer in court.
My experience was discombobulating and uncomfortable. It was very difficult to follow what was going on and the lawyers chuntered on, oblivious to how inaccessible the proceedings probably were to the family involved (one of whom was in person and spoke clearly and economically on behalf of his siblings).
Although the District Judge’s courtrooms at Bristol Civil Justice Centre are relatively small, I was surprised at how distant and remote the judge was from the row of seats against the back wall. It was very hard to hear — the judge himself was softly spoken, but the biggest problem was in following the voices of the lawyers, which were all projected towards the judge.”
Obviously the problem may be worse in older, more cavernous courts; but this shows how it can occur even in small modern court rooms. Given the use of technology to enable remote hearings, you would think they could also use it to improve audibility in the room where it happens. Churches and lecture halls can do it, so why not courts?
Creaking system
One thing perhaps you can hear in the courts is how the system is creaking. At any rate, it often isn’t fit for purpose as far as open justice is concerned. Apart from problems with hearing what’s going on, there are issues with finding out about cases, understanding what is going on when you do attend, and demoting the interests of non-media reporters by privileging media access. All this is explained by Dr Helen Taylor in a recent blog post on Spotlight on Corruption, Closing the door on open justice in a creaking court system?
Dr Taylor is a co-signatory of a recent Open Letter to the LCJ: HMCTS guidance on public access to courts, on the inadequacy and inaccuracy of recent HMCTS guidance on public access to watch hearings, via the Courts and Tribunals Observers Network blog.
Children in the justice system
The National Association for Youth Justice (NAYJ) believes that all children (including suspects, defendants and victims) should be entitled as a matter of law to privacy when they come into contact with the justice system and that this should continue when they turn 18.
So says a recent report from the NAYJ, Open justice and children in the criminal justice system by Dr Laura Janes, consultant solicitor. The report notes that children were not mentioned at all in the Ministry of Justice’s recent consultation paper on Open Justice: the way forward. Yet the extent to which children involved in the criminal justice system should be publicly named is a matter of key concern that has been flagged by a number of bodies and commentators in recent years.
“The NAYJ believes that enabling enduring privacy and reporting restrictions for all children involved in the criminal justice system will support greater transparency in decision-making and sentencing. This will in turn provide greater consistency for both victims and defendants, as well as important information to support change and improvements. It will enable court documents and judgments to be made available, as children’s personal details will remain anonymous.”
Other recent items
Media law claims SLAPPed down
A private members’ Bill which has received cross-party support will build on measures already enacted in the Economic Crime and Corporate Transparency Act 2023 to further protect journalists, campaigners, and anyone seeking to expose corruption, from the abusive threats of oppressive litigation.
The Strategic Litigation Against Public Participation Bill put forward by Wayne David MP, will end this pernicious practice and uphold free speech by allowing independent judges to dismiss spurious claims before they go to trial and protect defendants from paying exorbitant costs.
Safeguarding the flock
In her report, The Future of Church Safeguarding, Professor Jay makes a series of recommendations to establish full independence of safeguarding operations and scrutiny in the Church of England, reports the Law & Religion UK Blog. Professor Jay has concluded that safeguarding in the Church falls below the standards expected and set in secular organisations, with weaknesses including an inconsistent approach to guidance and supervision, poor data collection, inequity in funding and lack of a uniform complaints system. To address these shortcomings and restore trust and confidence, Professor Jay recommends the establishment of two separate bodies independent of the Church: one responsible for delivering all Church safeguarding activities; and one responsible for providing scrutiny and oversight of safeguarding.
For more detail, see: Jay Report on Safeguarding in Church of England
Call for Judicial Assistants
Applications are invited for a number of fixed term posts assisting the Lords and Lady Justices of Appeal. The period of service will cover 1 October 2024 to 31 July 2025.
During their period with the Court the judicial assistants will give invaluable help to members of the court by analysis of appeal papers and legal research clarifying issues in advance of an appeal as well as sorting out the shape and nature of appeals in less well-presented cases.
There is no fixed profile for a successful candidate but they must have practical experience in legal research. High intellectual ability, incisiveness, and an ability to work well under pressure are all essential.
Applications should be made through the Civil Service Jobs website job advert.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Care proceedings — Clarification of reasons: In re YM (A Child), 08 Feb 2024 [2024] EWCA Civ 71; [2024] WLR(D) 61, CA
CHILDREN — Care proceedings — Threshold criteria: In re O (Description of Sexual Abuse), 15 Feb 2024 [2024] EWCA Civ 126; [2024] WLR(D) 73, CA
CRIME — Evidence — Admissibility: R v Ali (Mahboob), 09 Feb 2024 [2024] EWCA Crim 77; [2024] WLR(D) 79, CA
INDUSTRIAL RELATIONS — Employment tribunals — Anonymity order: Z v Commerzbank AG, 12 Feb 2024 [2024] EAT 11; [2024] WLR(D) 77, EAT
PUBLIC POLICY — Illegality — Civil claim: Lewis-Ranwell v G4S Health Services (UK) Ltd, 20 Feb 2024 [2024] EWCA Civ 138; [2024] WLR(D) 78, CA
REVENUE — Customs and Excise — Importation of dutiable goods: Director of Border Revenue v OM Cash and Carry Ltd, 08 Feb 2024 [2024] EWHC 265 (Admin); [2024] WLR(D) 80, DC
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Law & Religion UK: Disputed altar frontal: St Nicholas Leicester: In re St Nicholas, Leicester [2024] ECC Lei 2, Const Ct
Free Movement: Judicial review no longer the appropriate remedy to challenge age assessments in Scotland: Mohammed Ismael Suliman Abdullah for judicial review [2024] CSOH 8, Ct of Sess
Free Movement: Varying an application for leave will undermine a delay challenge: R (Zhou) v Secretary of State for the Home Department [2024] EWCA Civ 81, CA
Nearly Legal: Intentional homelessness from a half way house: Kyle v Coventry Country Council [2023] EWCA Civ 1360, CA
Nearly Legal: ASB and disqualification from the housing register: R (Willott) v Eastbourne Borough Council [2024] EWHC 113 (Admin), KBD
Electronic Immigration Network: SSHD’s appeal on Bouchereau exception dismissed by Court of Appeal: Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23, CA
UK Constitutional Law Association: Paused Policies, Secret Policies and the Rule of Law: XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin); [2024] WLR(D) 32, KBD
Legal Futures: Appeal judges reject attempts to blame lawyers for convictions: R v Jensen (Jannick) [2023] EWCA Crim 1706, CA
Electronic Immigration Network: Court of Appeal: FTT failed to apply Iran country guidance to Kurdish asylum seeker’s case: FA (Iran) v Secretary of State for the Home Department [2024] EWCA Civ 149, CA
Dates and Deadlines
Technology, Transparency and Criminal Justice
IALS — 19 March 2024 at 6pm
Marking the launch of Observing Justice(Opens in new window) by Judith Townend and Lucy Welsh (Bristol University Press, 2023), this evening seminar will consider how under-scrutinised legal, social and technological developments have affected the transparency and accountability of the criminal justice process.
In person at the Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR, 19 March 2024, 6:00PM — 7:30PM
And finally…
Tweet of the week
Recalls the famous libel trial brought (and lost) by Holocaust-denying historian David Irving, following news of his recent illness:
There has also been discussion on Twitter of the recently released film of The Zone of Interest, directed by Jonathan Glazer, based on the novel by the late Martin Amis, which examines the Holocaust from the perspective of some of its perpetrators. Surreal and unsettling, it also illustrates the oft-quoted dictum of Hannah Arendt about the banality of evil.
Sorry to end on a grim note. That’s it for now. Thanks for reading and thanks for all your tweets, toots, posts and threads. We’re linked in if you are. Keep watching.
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.
