23rd April 2021
There are few, if any, criminal appeal judgments as damning as today’s appeal judgment on the post office cases.
This is an appeal judgment that will (or should) sound through the generations, as a detailed description of how the criminal justice system can go wrong.
It would be an error to dismiss it as just a grand example of ‘the computer says no’.
Computers, like any automatic processes, will be prone to faults.
The problem was not so much the Horizon software but a sequence of horrible, deliberate decisions made by human beings – about whether to bring prosecutions, to contest civil cases, and to avoid the disclosure of relevant documents.
Every single manager involved in these prosecutions and in opposing appeals are far more culpable than any of the poor defendants.
Yet, unlike the defendants, the Post Office managers are not (generally) named in this judgment: they have their gongs and their pensions and their self-serving supposed exculpations of ‘lessons learned’.
So damning is this judgment that, no doubt, every person reading it will have a view on which of their legal and political opinions will be affirmed by the judgment.
For this blog, the damning Post Office judgment affirms that private prosecutions are generally a bad thing – whether they are brought by the Post Office or anyone else.
Some organisations – and individuals – enjoy the swagger and the bluster of being able to bring (and threaten) cases aimed at criminalising and penalising others.
But as the noted jurist Benjamin Parker averred: with great power comes great responsibility.
And the power to criminalise and penalise others is one of greatest powers and responsibilities of all.
Lawyers often boast of being ‘fearless’.
Prosecutions should be – genuinely – fearless: but being fearless including being free of the fear of not proceeding with the prosecution because of the reason of embarrassment.
For, as the damning Post Office judgment shows, it was the fear of embarrassment that meant that things were not said and disclosed that should have been said and disclosed.
The damning Post Office judgment also shows what will happen when the power and the urge to prosecute is free from any checks and balances.
It shows what will happen when defendants do not get the materials and the advice that they need so as to be properly defended.
Yes: the appeal points to the dangers of automation and computerisation – but the appeal points harder at the dangers where managers and other decision-makers hide behind automation and computerisation.
And the delay in this appeal judgment – ten or so years after the miscarriages of justice – also shows the inefficiency of a criminal justice system that can often be so quick to impose criminal liability in putting right things when they go wrong.
Nobody – other than the defendants – come out of this judgment well.
Not least the criminal justice system itself.
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