The Post Office Project
The Post Office Project

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Judging criminal justice


Published on 11 June 2024


A timely intervention on the judiciary

Catherine Baksi wrote an important piece for the Law Society Gazette yesterday saying Judges had, “failed postmasters who were wrongly convicted in at least a dozen cases in the country’s biggest miscarriage of justice”. She reports the judgement of Sir David Calvert-Smith, “DPP from 1998 to 2003 and a retired High Court judge,” who had been “instructed by the Post Office to lead a review in 2020 of over 900 prosecutions of postmasters by the Post Office.”

“About a dozen… maybe more.” was what he seems to have said. “He told the conference: ‘Surely a judge would have poked a bit more deeply into this rather than thinking “I’ve got a full list, I want to get on with the next case”.’”

It follows on from the LCJ’s (unevidenced) rejection of “any suggestion that judges had been at fault.” She said back in February, “I don’t accept that there is any basis for implicating the judiciary in any of these wrongful convictions, so far as I can see.” Juries decide guilt or defence lawyers advise on guilty pleas.

In Scotland, similar attempts have been made to push the blame for problems back onto the Post Office rather than think openly and honestly about frailties in the system.

There are a number of ways, some of them quite specific, where one could point to concerns about, even failures by, the judiciary in relation to the handling of Post Office cases at first instance (civil and criminal) but also on appeal. I don’t want to stray into that territory just yet, but I have previously received correspondence from HH Nicholas Cooke KC, now retired who sat at the Old Bailey. He was a criminal judge for many years.

He raised some points of profound, systemic importance. In particular, he expressed a long-standing concern about a “cost of everything, value of nothing” approach in the criminal justice system.

“Speaking out against this was not appreciated and the trend coincided with the introduction of a far more managerial and hierarchical approach to the judiciary. I was not alone in worrying that this would lead to potential miscarriages of justice.”

“The development of the Post Office Scandal coincided with the high water mark of the pernicious influence of R v Smolinski [2004] 2 Cr App R 661, before it was ‘explained’ in R v F [2012] 661, para 22 ([a case about applying for stays, stays call a halt to cases].

“Coupled with case management hostility to extensive disclosure, use of experts, timetabling by resident as opposed to trial judges and other related matters, the environment for what was to become the Post Office Scandal was created. No doubt there were other unrelated, save by their cause, miscarriages of justice. As I knew only too well, you could not conduct a trial up to half-time trying to establish an abuse of process and keep a jury on board at the same time

As HH Nicholas Cooke explains, “this sort of thing is completely outside what seems to be the Inquiry’s focus.” But that does not mean we, and those digesting the Scandal and its lessons, should not be concerned. We should, as he goes on to explain, express “concerns about why so many innocent defendants were not protected by the trial.” As to whether this will achieve prominence, he says, “I am nervous as to whether that will ever happen.”

Perhaps there is a glimmer of hope in calls for a Royal Commission, although judging by the detail of Joshua Rozenberg’s piece on this today, I would say, not that much hope if the agenda is as set out by the LCJ.