Criminal law experts at a south coast legal firm are warning against putting restrictions on the right to take private prosecutions in the wake of the Post Office scandal.
Team members at Ellis Jones Solicitors voiced their concerns after the government said it was considering a review of the system.
Ministers have indicated they want to prevent a repeat of the miscarriages of justice revealed in the Horizon IT case which stemmed from private prosecutions by the Post Office itself rather than through the Crown Prosecution Service (CPS) or police investigations.
Thousands of postmasters were falsely accused of theft, fraud and false accounting, with around 700 prosecutions taking place based on evidence from accountancy software shown to have been faulty.
“It was an abuse of power,” said James Constable (pictured), Senior Associate Solicitor for Crime at Ellis Jones Solicitors’ Fleet Street office in London. “But while the Post Office should never have been allowed to be investigator, prosecutor and judge in such a massive corporate scandal of its own making, the right of individuals, companies, charities and other bodies to bring private prosecutions is fundamental to criminal law and needs to be preserved.”
James said the main reason there has been a growth in private prosecutions in recent years is down to underfunding in the police and CPS as investigating and prosecuting agencies.
He said: “The Post Office launched its action believing it was the victim of wrongdoing but very quickly the evidence it found involving Fujitsu’s Horizon system proved that was not the case. This was not disclosed to those seeking to mount the defence cases, despite many sub-postmasters across the country reporting exactly the same IT bugs and issues.”
James’s comments were echoed by Ian Daly, Associate Solicitor for Crime at Ellis Jones Solicitors’ Bournemouth office, who said: “People are rightly shocked by what happened. The prosecutions were undermined by what was found evidentially and should have been abandoned. In prosecutions pursued with integrity, you observe and follow a duty to disclose material that undermines your case or assists the defence. You can’t just ignore bits that don’t fit your case. It’s clear from all that has emerged that this was not a diligent prosecution. The Post Office investigators had an incentive not to disclose. They had too much skin in the game, a business interest. If the CPS had taken it over countrywide they would have looked into the many similar arguments put forward in defence, compared the evidence of a faulty IT system misfiring at post offices in different areas, discontinued the action and stopped it going to court, removing all the stress and heartache we have seen since.”
Colleague Jonathan Morrissey, Consultant Solicitor and Head of Crime, Motoring Matters and Inquests, said that although the Post Office prosecutions went badly wrong and the scandal should never have happened, if the government’s response is to restrict the right to a private prosecution, that will be a double tragedy.
Jonathan, who like Ian is based at Ellis Jones Solicitors’ Bournemouth office, said: “No-one should remove the right of the individual to prosecute. If we do that, justice disappears. Victims’ rights to prosecute are enshrined in law. Private prosecutions are a fantastic route to justice when done properly and not abused. The government needs to tread carefully in any moves to change that.”
Under the Prosecution of Offences Act 1985, individuals, private companies and charities can bring private prosecutions once their application to proceed is approved by a magistrates court.
Public bodies that can bring private prosecutions include local authorities, the RSPCA, the Health and Safety Executive and the Food Standards Agency.
The Ellis Jones colleagues agree that a key issue, both in the Post Office case and wider trend towards more private prosecutions, is the level of funding available to the CPS and police.
James said: “If the overall criminal justice system is sufficiently well resourced alongside the right, in appropriate cases, for individuals and organisations to seek private prosecutions, we will see properly qualified professionals respecting the duty of disclosure and acting in the best interests of justice for victims. That is a system well worth protecting and cherishing.”
And Ian added: “Imagine if the outcome of this troubling scandal is that the right of individuals to bring private prosecutions is curtailed. That would mean that the sub-postmaster victims of this fiasco wouldn’t be able to bring prosecutions against those who caused them to suffer in the first place. What an unjust irony that would be.”
Ellis Jones is a regional law firm with 178 staff including 21 Partners. It has five offices across the south coast in Bournemouth, Canford Cliffs (Poole), Ringwood, Swanage and Wimborne – as well as London – and offers a wide range of services to individuals and businesses. For more information, visit www.ellisjones.co.uk.