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Department for
Business & Trade
Horizon Compensation Advisory Board
Report of sixth meeting held on 31 July 2023
Members present: Prof. Christopher Hodges (Chair); Lord Arbuthnot; Kevan Jones MP;
Prof. Richard Moorhead.
Also present: Carl Creswell; Rob Brightwell; Eleri Wones (all DBT).
Overturning convictions
1. The meeting was joined for this item by Simon Baker KC, Jacqueline Carey KC, Nick Vamos
(Peters & Peters) and Simon Recaldin (Post Office), who described the work which Peters &
Peters and Counsel had been doing to review the convictions of everyone prosecuted by the
Post Office since 2000. The Chair noted that there was a close link between the Board’s main
focus on compensation and the quashing of convictions, because compensation could not be
paid to those whose convictions had not been overturned.
Legal framework
2. The Peters & Peters/Counsel team explained the legal framework governing the way in which
convictions can be overturned in England and Wales. They explained that their overriding
objective was not to protect or defend the Post Office, but rather to ensure that unsafe convictions
were quashed and that safe convictions were upheld. (In Scotland and Northern Ireland,
prosecutions were conducted by the public prosecution agencies.)
3. A postmaster convicted in the Crown Court could ask the Court of Appeal for leave to appeal
(which would include consideration of whether the normal time-limit for appeals should be
waived). Such cases could also be referred direct to the Court by the Criminal Cases Review
Commission (CCRC) which would bypass the need to obtain leave to appeal. The Court of
Appeal would overturn convictions if they were ‘unsafe’. Before doing so it would review the
detailed evidence from all parties and form its own view based on that evidence: it would not
quash convictions simply because the Post Office asked it to do so.
4. Cases of postmasters who pleaded guilty in the Magistrates’ Courts could only be appealed if
their case was referred by the CCRC. This meant that cases could be reopened if the CCRC
considered that there was a real possibility that the conviction would be overturned by the Court.
Appeal cases went to the Crown Courts where they were dealt with by way of a fresh hearing. If
an appeal was referred, the Post Office would apply the Full Code Test set out in the Code for
Crown Prosecutors — i.e. they would be assessed to establish whether there was a realistic
prospect of conviction and the retrial was in the public interest. The Post Office had to date not
sought to re-prosecute any such cases, either on evidential or public interest grounds, so the
Crown Courts had been able to overturn convictions without contest.
5. Convictions in Scotland can be referred for appeal by the Scottish CCRC (SCCRC) to the High
Court. The tests applied by the SCCRC in making a referral and the High Court in granting an
appeal are slightly different than in England, Wales and Northern Ireland.
6. In its judgment on the Hamilton case, the Court of Appeal had indicated that it was prepared to
overturn cases in which the reliability of Horizon data was “essential to the prosecution” (which
it labelled as ‘Horizon cases’). As the CCRC had made clear in its recent article, published on 25
July 2023, cases which did not meet that test could also be considered for review based on the
facts of the case. However, the Court of Appeal made clear that if a case was not a ‘Horizon
case’, and an appellant wished to advance other grounds of appeal, they would need to persuade
the Court to extend the time limit for appealing, which might be “a very difficult hurdle for an
appellant to surmount’. This would particularly affect cases where an appeal would be on the
basis of information that was known to the appellant at the time of the prosecution and conviction
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and therefore could have been raised at the time of the original trial/conviction by the defendants’
lawyers.
Review process
7. The Post Office had conducted a tracing exercise in order to contact the 700 postmasters who
had been convicted in cases which might have relied on Horizon. It had sent three sets of letters
offering them disclosure and the case papers from their case (where available) and inviting them
to appeal. In the light of concerns about the way in which approaches from the Post Office would
be received by convicted postmasters, the Post Office had also asked the CCRC to send a further
round of letters independently.
8. The Post Office had also engaged with other bodies who had prosecuted cases which may have
relied on Horizon data. The Public Prosecution Service for Northern Ireland had responded very
positively and two convictions had already been overturned. Other bodies were also pursuing
cases. The Post Office continued to offer them encouragement, co-operation and access to its
case material. The Board discussed the role of these other prosecuting bodies, such as the CPS
and DWP, who had brought over 170 cases.
9. To date, 86 convictions had been overturned. 48 appeals had been unsuccessful, whether
rejected by the CCRC, the Court of Appeal or abandoned by appellants. Checks would be made
with the ICO to determine whether it would be possible for the Post Office to share details of
unsuccessful Post Office cases with the Board.
10. The Post Office, Peters & Peters and Counsel shared the concern of the Board that many
postmasters had not yet sought to have their cases overturned. All were very aware of the
urgency of encouraging early appeals: as time passed, it might be more difficult to find evidence
and more postmasters would become ill or pass away.
11. The Post Office had therefore commissioned Peters & Peters to undertake a pro-active review
all convictions which it had prosecuted which may have relied on Horizon data (save for those
whose appeals had already been considered by the Courts). To assess individual cases, Peters
& Peters had engaged Simon Baker KC and Jacqueline Carey KC, both highly experienced
criminal barristers in independent practice who acted for both prosecution and defence, and a
team of experienced independent junior counsel. They had extensive experience of disclosure
issues. Their professional obligations required them to take an independent view of cases based
on the facts and the applicable legal framework and to ensure that unsafe convictions were
quashed. Their role was not to try to uphold convictions: the Post Office had not asked them to
do so, and in any case such action would be contrary to their professional obligations. All cases
have been reviewed by junior counsel. Those cases flagged as being potentially appealable are
being reviewed by both KCs. The review is ongoing.
12. The team explained that, because of the burden of proof in the Court of Appeal, the Post Office
could only pro-actively offer to concede cases if it was in possession of sufficient material to be
Satisfied that it was a ‘Horizon case’. However, the team emphasised that even if the team was
not able to advise that an appeal could be pro-actively conceded based on the evidence presently
available to the Post Office, that did not mean that an appeal by that individual would not be
conceded if further evidence became available (including fresh evidence from the individual
themselves). Moreover, the team emphasised that the Post Office was never the final arbiter of
whether a conviction was unsafe, and that the Court of Appeal could allow an appeal even if it
was not conceded by the Post Office. The Post Office had written to all convicted postmasters
to provide them the disclosure and case papers for their case (where available) to enable them
to take their own legal advice as to whether to appeal (and that there were several firms willing
to do this with no charge to the postmasters).
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Availability of evidence
13. Because of the passage of time, the application of data retention policies, and a lack of
systematic storage and retention of papers by the Post Office, there was limited evidence in the
Post Office’s possession in about a quarter of cases. This was particularly true for cases prior to
2007, where the available evidence for some cases did not even reveal the nature of the charges.
Even for later cases, evidence was often patchy.
14. In considering appeals, the review of evidence is not limited to the evidence held by the Post
Office. Evidence is sought from other sources, including, but not limited to, from the postmasters
themselves, the GLO case, the Williams Inquiry, court records and local newspapers. In some
cases, the Post Office had tracked down the Post Office investigators or other witnesses who
had worked at the branch or been involved in the investigation. These sources could sometimes
fill in gaps in the record.
15. In many cases postmasters had chosen to plead guilty — often in the light of legal advice — and
some had made confessions in their interviews or in writing. The review did not regard those
confessions as automatically reliable: it considered the reasons why they might have been made,
and whether they were corroborated by other available evidence. Some cases had been
conceded despite the existence of such confessions.
16. If a postmaster’s evidence (either at the time of the prosecution or by way of fresh evidence
thereafter) indicated that s/he did not know how the shortfall had arisen, and there was no reliable
evidence independent of Horizon to the contrary, the team took that as an indication that the
reliability of Horizon was essential to the prosecution. Appeals in such circumstances were
conceded.
17. The team had taken a broad view of potential unfairness. In some cases, postmasters had used
money from the Post Office or manipulated pension and allowance payments to recoup the cost
of meeting previous unexplained Horizon shortfalls (and/or covered up such use of the money).
In such cases, the Post Office had always regarded such instances as consequences of the
failures of Horizon. In cases where there was reliable evidence (including from appellants) that
this is what had happened, the Post Office had conceded appeals.
18. The team had noted the Board's previous recommendation that the Minister should encourage
the Post Office, when considering which potential appeals meet the Court of Appeal’s criteria,
only to resist appeals in which there remained substantial evidence wholly free of taint. The team
noted that in response to early applications to the Court of Appeal, the Post Office had said that
it was willing to concede appeals where there was insufficient evidence to show whether or not
Horizon evidence was essential to the prosecution. However, at a directions hearing in the case
of Allen & Others (19 July 2021) and then again in its judgment in the case of White & Others
[2022] EWCA Crim 435, the Court had indicated that the normal rules of criminal appeals applied
so the burden of overturning cases should remain with the postmaster, and that the Post Office
should not concede such appeals. If the Post Office was nonetheless to try to concede them, the
Court would be unlikely to accept this — and the postmaster would have to go through the stress
of a potentially unsuccessful appeal. The team explained that because of the different test
applied to magistrates’ court cases, the burden of proof in such cases was effectively reversed
in favour of the postmaster once the case had been referred by the CCRC.
19. The team stated that the evidence showed that not all allegations about misconduct by the Post
Office were true. For instance, there was clear evidence, based on verbatim transcripts and audio
recordings, that in initial interviews, Post Office staff had generally followed guidance requiring
them to offer postmasters access to publicly funded lawyers to advise them in the interview or
have a ‘Post Office friend' accompany them. If necessary, interviews were adjourned until such
advice could be provided. There was evidence that this had occurred even where the
interviewees had claimed otherwise.
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20. The Board noted concerns that Post Office interviews may have been oppressive, especially
given the vulnerability of some of the people accused. The team did not dispute this had
happened in some cases. The team always looked to see whether there was evidence, whether
on the papers, from appellants or otherwise, to indicate whether this had been the case in any
specific case under consideration or review. In response to a suggestion that there could be a
presumption that confessions in interview were unreliable due to oppression in other cases, the
team noted that each case had to be determined based on its own facts, and that the Court of
Appeal had consistently ruled that a confession would not automatically be deemed unreliable
simply because it was obtained in an interview conducted by an individual, organisation or team
that had been found to have acted oppressively or improperly in other cases. The team could
not recall any case where a postmaster had not been legally represented in court.
Results of the review to date
21. The review was still under way: Counsel continued to work through cases. They had focussed
initially on those in which the Post Office’s own papers indicated clearly that it was a Horizon
case. Even once the process had been completed, the door would still be open for the
consideration of any additional evidence which came forward.
22. The review had already led the Post Office to write to a number of postmasters to indicate that
any appeal would be conceded based on the evidence held by the Post Office, identifying law
firms who were involved in overturning such cases. (The Board noted that some firms provided
this service free of charge). Further letters are likely to follow. The review had also found a
substantial number of cases where there was strong evidence, independent of Horizon reliability,
that the postmaster was guilty of theft or other offences.
23. Counsel reported that they had very good and constructive relationships with their legal
colleagues who represented postmasters. To date there had been few differences in respect of
individual cases.
Encouraging postmasters to appeal
24. The circular letters from the Post Office and CCRC had generated a disappointingly low number
of responses. Even where, in the light of the review, the Post Office had written personally to a
postmaster to say that it would not oppose an appeal, some were reluctant to make one. The
reasons for this are not known but might include misunderstanding of what the process might
entail, disillusionment with the legal system, a desire to maintain closure in respect of Post Office
issues and pressure in other parts of their lives.
25. The Post Office had discussed informally with the CCRC whether it could take forward some
cases without the appellant’s active support. The CCRC had indicated that it could not refer a
case for appeal in such circumstances. It had made the same point in its recent online article.
The Board noted that section 14 of the Criminal Appeals Act 1995 appeared to allow it to do so.
It would take up this issue with the CCRC.
26. The Board discussed the possibility of an independent third party — perhaps associated with the
JFSA — being commissioned to engage personally with convicted postmasters to encourage
them to appeal. It would be important to address any data protection issues involved. Help on
this might be needed from the Courts, the Information Commissioner's Office or from secondary
legislation.
Conclusion
27. Board members thanked the team for their work in difficult circumstances, and for their
presentation of it. They concluded:
a. that there were important constraints on the criminal appeals process arising from the
legislative framework and the approach of the Court of Appeal to leave applications, the
presumption against overturning cases on a generalised basis where evidence was
28.
29.
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missing, and their reluctance to treat evidence obtained by investigators from a
discredited prosecution team as inherently unsafe (see paragraphs 3, 18 and 20 above;
b. noted the commitment of those involved to ensuring that their review and
decisions remain independent and objective;
c. that since the Court’s approach had been to warn the Post Office and appellants’
lawyers that they required a specific case to be made for an appeal (and any leave
application), if the Post Office were to concede a wider range of appeals, there was no
guarantee that the Court of Appeal would agree to quash the convictions concerned.
Given the limits of evidence held by the Post Office in many cases and the Court's
approach to appeals, this meant that there was an unidentified but plainly sizeable body
of cases that required evidence from postmasters before the Court would allow them to
proceed. Without such evidence, Post Office lawyers would not feel able to advise that
an appeal should be conceded.
d. That whilst this indicated the benefits of postmasters being willing to engage with the
review (which they should be encouraged to do), there were serious issues of trust and
the traumas of the victims inhibiting this engagement.
The Board noted that the overall process seemed likely to lead to only a small number of
convictions being overturned, when it was clear to them that many more were ill-founded.
Whilst this was not a reflection of the team’s work, it was not acceptable.
The Board recognised that the Counsel team, the Post Office and Government wanted to see
more postmasters submitting appeals.
Board members stood ready to help with any communications to postmasters to encourage
them to appeal. However, in their view, although letters and publicity had a role, this effort
would require personal engagement with postmasters through a proactive and neutral
intermediary. They asked DBT, in discussion with the Post Office and the JFSA, to consider
how this could be achieved.
Even with a vigorous programme of engagement, however, the Board took the view that most
convicted postmasters would be unable to get justice as a result of the legal constraints
described above.
The Board noted that phase 4 of the Williams Inquiry should provide important evidence about
the way in which prosecutions had been conducted. It would want to consider these issues
further in the light of that evidence. The Board hoped that the Inquiry’s recommendations would
consider the impact of the Court of Appeal’s policies and make appropriate recommendations
which could secure the quashing of convictions for hundreds more postmasters. A letter would
be drafted for and approved by the Advisory Board for the Inquiry to ensure the issues were
before it.
If the legal system could not deliver a fair outcome for this large group of wronged people, the
Board believed that there was a case for legislation to ensure that their cases were considered
against a presumption of innocence, or even quashed en masse. In the Board's view it would
be better to overturn the convictions of all postmasters — including some who were genuinely
guilty — rather than to allow a large number of innocent people to remain stained by wrongful
convictions and uncompensated for their effects. The Board agreed:
a. Toreflect what they had learned in their forthcoming letter to CCRC, including the
possible use of section 14 of the 1995 Act to allow cases to be referred without
the active involvement of the postmaster;
b. To send a copy of this report to the Williams Inquiry, offering to discuss it with
Sir Wyn if that would be helpful.
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Interim report of the Inquiry
34. The Board discussed the interim report which the Inquiry had published in July. Among other
things, this had recommended that the Board:
e should not be prevented from monitoring individual compensation cases;
e should monitor whether compensation payments were full and fair;
e should produce prompt written reports of its meetings;
e should be augmented with additional members if necessary;
e should publish a three-monthly review of whether, in its view, full and fair
compensation was being paid.
35. DBT confirmed that there was nothing to prevent the Board reviewing anonymised information
about individual cases. Board members expressed an enthusiasm for doing so where it would
help them to assess the fairness of the system. That could involve samples of cases selected
either at random or to illustrate particular policy issues.
36. However Board members expressed concern that if it were thought that they could influence
the outcome of individual cases, they would be faced with large numbers of requests to do so.
That would undermine their core role of advising on the fairness of the system, which they were
keen to continue to do from a system-wide perspective (e.g. scrutinising specific areas of
concern and providing advice to the Minister, rather than being the decision-maker for
individual cases).
37. The review of a large number of cases would be impractical for a Board which typically meets
every six weeks. It would also be inappropriate: those appointed to make decisions on cases
were selected for their professional expertise in aspects of compensation and related matters.
Those were skills which Board members did not necessarily have: they would not want to over-
write the judgements of such professionals.
38. The Board considered whether and how it could advise Ministers that the various appeals
arrangements were fair. It could scrutinise processes to ensure that they were robust and
establish from performance data whether they were working properly. However these steps
would not indicate whether the outcomes of the processes were fair. That would probably
require some element of sampling. Assessing such samples would be intrinsically difficult
because “fairness” always involved some element of subjective judgement. Furthermore it was
not clear that the Board had the specialist abilities necessary to reach such judgements.
39. The Board would instead need to rely on the professional judgement of others who were
suitably independent. In some cases these independent entities were already part of the
system. Where such entities were not yet in place, the Board would recommend their
introduction. There was a spectrum of solutions available, ranging from case-by-case
assurance as part of the process of making awards to sampling larger numbers of outcomes.
e Anexample of the case-by-case approach was the GLO Panel's role of forming
independent judgements about compensation cases which could not be resolved bilaterally;
and the Reviewer's in assessing whether the Panel had made a manifest error or
irregularity in a final assessment. In respect of the Horizon Shortfall Scheme the Board’s
previous meeting had recommended that the Minister should consider the creation of a
route of appeal which was independent and was seen to be so.
e Atthe sampling end of the spectrum the Board discussed whether its proposed HSS
appellate entity should undertake sample testing of cases in order to give wider assurance
of fairness. Groups of settlements could be revisited if unfairness was found on a particular
issue (whether the amount of compensation for a particular head of loss or a process point
such as the availability of legal representation). The Board noted that this sampling
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approach might allow the fairness of the scheme to be assessed more readily and
economically than opening up a right of appeal to all those whose cases had been settled.
e Towards the middle of the spectrum, the proposed appellate entity might be asked to
consider the fairness of the principles used in some aspects of the scheme.
40. The Board agreed to consider more fully at a future meeting how it could take an overview of
the fairness of the various schemes.
41. The Board noted that it already published reports of its meetings, typically within a week. These
reports were communicated to the Minister and should be taken as the Board’s view of the
issues.
42. The Board agreed to write to Sir Wyn Williams to outline their views on these issues, including
an offer to meet.
Any other business
43. DBT provided updates on
e its work in response to the recommendations made at the Board’s previous meeting;
e progress on compensation payments (including the first in principle acceptance of a
GLO offer); and
e discussions between the Post Office and claimants’ lawyers in respect of principles for
the treatment of pecuniary claims in respect of overturned convictions.
44. Board meetings would be set approximately every six weeks for the remainder of the year.