Unfair trials: justice in the dock

Unfair trials: justice in the dock

The law, like history, is written by the victors. It acts to protect wealth, even sometimes wealth that appears ill-gotten. It should protect the weak against the strong, but a series of recent situations suggest that the law may too often be supporting the strong and operating to the detriment of the weak. Its cheerleaders will claim that fairness is inherent in the law, but sadly it seems, that is not always true. In practice, not everyone gets a fair trial, or fair treatment under the law.

That’s become very apparent in recent days, as Russian oligarchs use legal threats to avoid being named in the media as being close to President Putin and potentially implicated in his misdeeds. It’s true too in the case of Charlotte Leslie, former Conservative MP for Bristol North West, who is being effectively muzzled and bullied through legal means because, she suggests, she questioned whether the party should be willing to work with an individual who (as revealed by the Panama papers) has an association with the agreement under which Swedish telecoms firm Telia supplied services in Uzbekistan – over which the company has admitted bribery. It may be similarly apparent in the recent decision of the Supreme Court to bar Bloomberg from disclosing the existence of a regulatory investigation that implicated an senior individual in a UK business (even if the Bloomberg headline responding to the decision does seem a little hyperbolic – UK Judges are Helping the Next Robert Maxwell).

As a law graduate who then spent nearly a decade editing legal journals, I have long had a lot of faith in the law, and in the concept of the Rule of Law. That’s the idea that all, including those with power, are subject equally to the law, and that the law should be applied fairly to all – with structures in place to ensure that fairness can indeed be delivered procedurally. The Rule of Law, put in the simplest terms, is fairness. But these situations tend to suggest that, as in other parts of our economies, the wealthy have a significant advantage over others. Money can skew this playing field just as it does others.

And sadly it seems that the wealthy and powerful using the law to overwhelm those weaker than themselves is not restricted to oligarchs. It is not just done by individuals eager to protect their personal reputations. Perhaps the most egregious recent example is now being played out in a belated public inquiry – and it is worse than the other situations mentioned above, because it subverts that very foundation of our trust in the law, the right to a fair trial in a criminal case.

The public enquiry is so belated that the Post Office Fujitsu Horizon scandal is now decades old, although most people will not have heard of it till recently. It dates back to 2000, yet only Private Eye and Computer Weekly have been covering the scandal for any period of time. Even as an avid reader of Private Eye for decades, and so hearing a steady drumbeat about the scale and nature of this scandal, I was shocked by the details revealed in the court judgements.

Soon after a new IT system was introduced to the UK Post Office (the consumer-facing mail transactions and financial services operation, which is often run at an individual business level by local shopkeepers known for these purposes as sub-postmasters), problems began to emerge. Rather than trust its workforce, or its systems for assessing their reliability, the Post Office attributed these errors to human error, or indeed fraud. This continued even as the numbers of these errors continued to build up. Between 2000 and 2014, the Post Office prosecuted (oddly, it had powers to mount private prosecutions) 736 sub-postmasters – and many more chose to remedy shortfalls in the system out of their own pockets to avoid prosecution. Even after 2014, when the Post Office stepped back from prosecuting individuals, it continued to fight calls for legal redress. Even now, though the failings of the Horizon system have been publicly exposed, only a handful of those who were wrongly prosecuted have gained legal absolution. Others who were equally wronged still have their names unfairly sullied. There is manifest injustice – unfairness – in the delay in clearing these individuals who have been so badly treated.

A failure to remedy a wrong from 2014 to the present day would be one thing. But it’s worse than that. It’s apparent from the cases that the Post Office as an organisation was aware of issues with Horizon from at least 2001, and yet it continued with prosecutions.

It’s no wonder that the crucial Court of Appeal decision last year, Hamilton v Post Office, found not just that “a fair trial was not possible” but also agreed that “it was an affront to the public conscience for the appellants to face prosecution”. Shocking, judicially enforced unfairness was allowed to persist for 20 years and more in some cases. The Court of Appeal leans on years of remarkable and detailed judgements by Fraser J in a series of cases collectively referred to as Horizon Issues (perhaps the most striking is Bates v Post Office Judgement 6).

Fraser J is not prone to overstatement, but his views of the Post Office and those individuals implicated by the scandal are coldly clear. He is transparently frustrated by the approach of the Post Office legal team, and in the documentation the Post Office provided to the claimants, saying in his very understated way: “I have gained the distinct impression that the Post Office is less committed to speedy resolution of the entire group litigation than are the claimants.” He is bluntly clear in his dismissal of some of the witnesses called by the Post Office. It is Fraser J who notes clear evidence that the organisation was aware of issues with Horizon as early as 2001, which is the date of a detailed IT error report (known internally as a PEAK) setting out the substance of the issues. And yet the prosecutions went on for more than a decade.

He does conclude that the Post Office suffered from “a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary.” His most direct comment is to say about this view that: “It amounts to the 21st century equivalent of maintaining that the earth is flat.”

Others who have followed this scandal and tried to expose it are more blunt and excoriating. A particularly striking headline from Computer Weekly was Post Office CEO either knew what was going on in Horizon scandal, or was ‘asleep at the wheel’ (and it certainly seems appropriate that Paula Vennels stood down from her public roles following the Court of Appeal’s judgement in Hamilton). Barrister Paul Marshall’s speech to the University of Law is if anything even less forgiving. At its simplest level, the miscarriages of justice arose because there was an unchallenged assumption that if the IT system said there was a shortfall, then there must be a shortfall. It is a remarkable failure of imagination – perhaps even a delusional confidence in technology – to fail to consider that the evidence of an IT system might be wrong. Yet both the Post Office, and the English courts, suffered from that failure, that delusion. That is the heart of this particular unfairness.

As Marshall puts it: “The first problem that the Post Office litigation painfully exposes is that English judges and English lawyers commonly do not understand the propensity of computers to fail.” As Marshall rightly notes, the truth is that technology is as fallible as humankind, and tends to embed the same unfairnesses as exist in the human world. One hopes that our country’s lawyers will rapidly remedy their error. Otherwise our increasingly technology-beholden world will deliver many more such unfair judgements.

These situations seem strongly suggestive that the law is being used to perpetuate unfairness. It’s hard not to conclude that if the law is to live up to the fairness promised by the Rule of Law, it must do better. More on this in due course.

Bloomberg v ZXC, [2022] UKSC 5, Supreme Court

The Rule of Law, Tom Bingham, Penguin 2011

Hamilton v Post Office [2021] EWCA Crim 577, Court of Appeal

Bates v Post Office Judgement 6, Rev 1 [2019] EWHC 3408 QB, High Court

Marshall spells it out: speech to University of Law, June 4 2021, Post Office trial blog

The Great Post Office Scandal, Nick Wallis, Bath Publishing 2021