Stuart Munro

The mass-exoneration scheme

Less than a week after the broadcast, on 10 January 2024, Prime Minister Rishi Sunak promised to introduce legislation to overturn all convictions resulting from the Horizon IT scandal – a so-called ‘mass-exoneration’ scheme. Scotland’s First Minister, Humza Yousaf, pledged his support for such a scheme.

That clear commitment started to come unstuck a few days later, when the head of Scotland’s prosecution service, Lord Advocate Dorothy Bain KC, made a statement to the Scottish Parliament. She insisted that not every Horizon conviction would have been unjust, that in some cases other evidence would have been available, and that the Crown was carrying out its own review of cases.

Nothing more was heard until Thursday 22 February 2024, when, in the immediate wake of the former Post Office chairman Henry Staunton claiming he’d been told to ‘stall’ on compensation payments, the Post Office Minister Kevin Hollinrake provided an update on the UK government’s intentions. The government would “quash all convictions which are identified as being in scope”, hopefully by the end of July.

No draft legislation has been published, so many key questions remain to be answered. What will be the application process? Will applicants have to show that their convictions were related to Horizon evidence? How will they do that, when records from many years ago are likely to have been destroyed? Will they have to show that there was no other evidence supporting the conviction?

Even now, after all that has happened, the minister was at pains to stress that the scheme was “likely to exonerate a number of people who were, in fact, guilty of a crime” – a line highlighted in many of the press reports which followed. One wonders how victims of this scandal will take that comment: victims who faced hostile and aggressive interviews by Post Office investigators, were shunned by friends, family and neighbours, and were publicly branded as criminals. Will such a grudging, caveated process really feel like justice? Those who have had their convictions overturned by the courts are found not guilty; the stain on their character is washed away. Will this process really feel like that, when the minister insists that some successful applicants are truly guilty?

The belief that some of those convicted on the basis of faulty Horizon evidence were nonetheless guilty (a view strongly expressed by the Post Office’s lawyers) is based on a claim that in some cases, other evidence was available, such as admissions by those accused. But that is a very dangerous line to take. Investigations were based on the faulty Horizon data, and the false claim that it was reliable. It would be perfectly natural for people, faced with hostile investigators pointing to the computer data, to assume they were somehow responsible – ‘I’m so sorry, I don’t know what I’ve done’. That simply can’t be regarded as an admission of guilt.

And what of Scotland? The UK scheme relates only to England and Wales – it will be up to Scotland and Northern Ireland to introduce their own. Curiously, the Scottish Justice Secretary Angela Constance has said her preference would be to simply adopt the UK legislation, despite the lord advocate – the Scottish Government’s legal adviser – appearing to think the whole approach is wrong.

What about those not convicted?

It’s understandable that much of the focus in recent weeks has been on those people who were wrongly convicted. That focus ignores, however, a large number of sub-postmasters who faced accusations of financial impropriety, lost their jobs and businesses, were forced to pay money they didn’t actually owe to Post Office Limited, were shunned by their local communities, and saw their lives fall apart, but were never actually prosecuted in the criminal courts.

Those wrongly convicted have a route to securing public justice – an appeal against conviction (or potentially via the proposed mass-exoneration scheme). Those in the other category, who lost everything but were never prosecuted, don’t. But that doesn’t mean there’s nothing they can do.

Is compensation available?

Three compensation schemes have been set up.

• Overturned Convictions Scheme: Those who were wrongly convicted on the basis of Horizon evidence, and who have since had their convictions overturned on appeal, are eligible for compensation under this scheme. As matters stand, only six Scottish convictions have been overturned, despite there being anywhere between 50 and 100 Scottish Horizon convictions in total. The fact that nobody knows the correct number is itself scandalous – that despite the concerns being widely known in 2013, and judicially established in 2019, we still don’t know, in 2024, how many people were affected.
• Group Litigation Order: This scheme was put in place to settle the group action brought before the English civil courts in 2019. On the face of it, those who weren’t party to that action are not eligible.
• Horizon Shortfall Scheme: This was a scheme set up to compensate those sub-postmasters who suffered losses related to erroneous shortfalls (where Horizon said money was missing, when in reality it wasn’t). It closed in November 2020, but applications are still being accepted on a case-by-case basis.

The arrangements in place for securing compensation are far from straightforward, and don’t go nearly far enough. People’s lives were ruined by these events. Sub-postmasters lost their reputation, their businesses, their careers; in many cases they lost their families, their friends, their homes. Some even lost their lives.

Those who aren’t able to secure justice through the existing compensation schemes may still be able to bring a case to court. But litigation is complex, expensive and stressful. The best thing our politicians could do would be to give a clear commitment to compensate everyone affected by this scandal, and to put in place a straightforward process to achieve it.

In the meantime, those affected are urged to seek early legal advice. They can be guided on how to overturn a Horizon conviction, seek compensation, and, if appropriate, take part in the ongoing Post Office Horizon IT Public Inquiry. Time limits apply to many of these processes, so it’s best to get advice without delay.

Stuart Munro is managing director of Livingstone Brown. He acted for Susan Sinclair, the first subpostmaster in Scotland to have their conviction overturned on appeal.