Some commentators have claimed that the decision to expedite the process of formally exonerating the sub-postmasters potentially runs afoul of certain core constitutional principles, in particular the separation of powers. It has also been claimed that the ‘crown does not have a prerogative of justice but only a prerogative of mercy’. This blog considers and challenges those claims.

Technically, the prosecutions brought by the Post Office were private prosecutions. In the United Kingdom, private prosecutions were long ago overtaken in importance by prosecutions by the Crown. This was in part due to the clever machinations of Henry II who persuaded the Barons that serious offences constituted breaches of the King’s peace, entitling the Crown to the miscreant’s property on conviction or guilty plea. 

The stealthy national takeover of previously localised criminal and civil feudal jurisdiction by the King’s judges, creating the ‘common law’ that we know today, was met with considerable resistance by the Barons in Magna Carta (McKechnie, Magna Carta, p87).  This resistance was futile.  Justice therefore was, until relatively recently, a prerogative possessed by the monarch and implemented by his judges, who only remained in post at his pleasure.

The ancient roots of justice were thought to be divine. There was a ‘priest who presided’ and ‘the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent’ (McKechnie, p85 on the ancient form of trial). That is perhaps why not even the King could vacate a conviction, despite himself being the conduit for divine judgment through the prerogative of justice, which provided the original source of legitimacy and authority for the jurisdiction of the Courts of King’s Bench, Common Pleas and the rest. How could God’s judgment be wrong? 

The King could, however, exercise the prerogative of mercy. This mitigated the full rigour of the conviction by suspending the application of the punishment, even while the conviction itself was unaffected as divinely ordained. This is perhaps understandable in a society that once determined guilt by trial by ordeal, supposedly leaving it to God to ensure a just outcome. In the current situation, the government has seemingly decided not to go down the pathway of pardoning the sub-postmasters.

Instead, on 10 January, the Prime Minister told the House of Commons that the government had decided to put forward a Bill that, if passed, would vacate the convictions of hundreds of sub-postmasters entirely, restoring the unblemished records of the vast majority of these pillars of the community whose lives were ruined by the callous and vindictive prosecutions brought by the Post Office.

The arguments for such legislation being constitutionally inappropriate are based on seriously mistaken premises. For a start, parliament, classically, was where individuals could seek the redress of grievances through their representatives. That is precisely what has happened here, and this kind of response to public outcry is an example of our flexible, representative, legally unlimited parliament at its very best. This can cut both ways, of course, as the rushed, panicky and deeply damaging lockdown measures demonstrate.

Furthermore, the Crown-in-Parliament has another label which is, of course, the High Court of Parliament. In that capacity, arguably more ancient than any other, its power to overturn the decisions of lower courts is not just available, but the use of that power is undoubtedly within Parliament’s competence and completely appropriate. Nor is this the first occasion that parliament has overturned a judicial decision. 

In Burmah Oil, the courts held that compensation for damage caused by the British Army as it retreated was payable. This decision was overturned by the War Damages Act 1965 which operated retrospectively, to the chagrin of some contemporary legal commentators. Granted this was not a criminal case, but this example proves that it is well within the powers of a sovereign legal parliament to overturn individual court decisions where it is thought to be necessary. The appropriateness of this power was confirmed by Lord Reed in his evidence to the Constitution Committee of the House of Lords in 2021.

Separation of Powers

What, then, is the argument that the swift passage of a bill relieving the injustice in these cases is constitutionally problematic? David McNeill from the Law Society has argued that the legislation ‘breaches a fundamental principle which is effectively the government legislating against decisions, against the independence of the courts’. The ‘fundamental principle’ referenced here is the separation of powers. Mr McNeill claims that this legislation would put this principle in jeopardy. This claim is mistaken. (Nor, incidentally, does the government legislate. Parliament legislates). 

The separation of powers is the Cinderella of constitutional principles, frequently disregarded as the rule of law and parliamentary sovereignty are showered with (perhaps undeserved) greater attention. In some systems, notably France, a purist approach to the concept sees separate administrative courts designed specifically to differentiate between the executive and judicial branches. 

The UK has a radically different conception of the separation of powers. Known commonly as the ‘partial’ rather than ‘pure’ separation of powers, our system operates on the basis of checks and balances, not institutional silos. This results in different institutions and branches overlapping and overriding other parts of the overall system in a complicated dance that is irreconcilable with the rationalist, purist approach favoured by those who prefer platonic ideals to tradition, custom and experience. 

One well known example of the partial separation of powers in the UK is the fact that the government is contained within, and drawn from, parliament. It is no breach of how that principle is actually applied here – on the contrary, in fact – for parliament to overturn a decision of the courts. Indeed, as we have seen, correcting the errors of the common law is one of the core functions of Acts of Parliament. That must in principle include erroneous convictions, it is suggested. This is one of the ‘checks and balances’ rightly built into the system. 

Pay no attention, then, to the siren calls of constitutional ingenues trying to impose purist ideals of institutional silos onto the pragmatic application of a concept which is far richer, far more nuanced, and far more interesting here than elsewhere.

Rule of law

What then of that other protean theoretical weapon deployed by both sides in virtually every constitutional dispute: the rule of law? Is it not a breach of the certainty required by the rule of law to overturn convictions handed down years ago? How can people “plan their life” if convictions can be vacated, willy nilly, years after the event? 

This concern is easily met. The rule of law also requires that natural justice should prevail, meaning that individuals should have a fair trial, with all the evidence available, so that a tribunal of fact can make a fair judgment of their legal position and rights. Where a private prosecutor deliberately and maliciously withholds evidence and subverts justice then subsequent convictions are tainted ab initio, even where a guilty verdict might anyway have resulted, or even been merited.

This leads to a further reason why legislation is arguably appropriate in this case. It is fair to say that legislation is normally general, applying either to everyone or to clear classes of people – for example pregnant women. An Act applied to individuals carries the ghostly whiff of ancient Acts of Attainder, although these operated at the other end of the scale, convicting individuals at the bar of the House. 

Even so, is there a rule of law wrinkle of the nose here? Not really, as long as the new Act, in general terms, vacates the class of convictions obtained by the Post Office from 1999/2000 onwards, when its culture curdled, a dominant narrative took over and it closed its collective mind to evidence that did not fit that narrative. Why so? There is a larger rule of law principle that would thereby be vindicated. One of the few silver linings of this debacle is that it should provide a welcome boost to the sometimes tough sell of defending the provision of public money to those accused of (even heinous) crimes. 

As the Secret Barrister has tirelessly argued in their excellent books, defending the convoluted, complex and time consuming processes of criminal justice is sometimes a thankless task against tub-thumping tabloids and their cheap headlines. A new rallying cry in the defence of Blackstone’s old mantra that it is better to free ten guilty than convict one innocent must now receive a significant and welcome boost.

One of the reasons Blackstone’s argument has such purchase in our minds is because no one is immune to the fear that the state, with all its awesome resources, might one day come after you in error. No less fearsome is the idea that a malevolent institution could weaponise those resources against us by falsely accusing us and withholding exonerating evidence from the court.

That low level anxiety of being falsely accused and punished, understandably murmuring in the background noise of our ordinary lives, is why Blackstone’s principle has such hold. We all feel it. The recent ITV drama simply poured emotional petrol on that fear, and we currently see it flaring in our political discourse. 

For parliament, our parliament, to step in and attempt to assuage public concern about the horrifying possibility that one day any one of us could be wrongly convicted and our lives destroyed is politically understandable, justifiable and indeed arguably necessary. It will serve to remind the whole justice system of the essential vigilance that is required to avoid this kind of disaster in future. 

Moreover, a general quashing of convictions would have the benefit of sending a stark message to others with actual or delegated prosecuting authority – from the CPS to Customs & Excise and the rest. The ignominy and humiliation of having all its convictions overturned should hang like a Damoclean sword over the decisions of such institutions, ideally incentivising them to maintain the highest standards of integrity and best practice. The award of compensation, even to some bad apples, would underline that crucial message.

In addition, such a policy–based piece of legislation is more consonant with parliament’s usual role of acting in as general a way as possible in legislating, another core principle of the rule of law. New legislative rules should be general and rooted in policy. The policy defended in the proposed legislation is the reinforcement of the sanctity of Blackstone’s principle. 

Royal Pardon

What then of royal pardon? If it was good enough for soldiers in the First World War, many suffering from what would today be called post-traumatic stress disorder – then called shellshock – who were executed for deserting, then why is a pardon not good enough today? If Alan Turing was posthumously pardoned, leaving his conviction technically intact as a matter of common law, why not simply pardon the postmasters?

No doubt this option has received serious consideration. But there is a material distinction. No one claims that those who prosecuted Turing or the soldiers a century ago were themselves institutionally tainted or had collectively lost their integrity and sense of honour and fair play as individuals or as an institution over a long period of time. Those earlier convictions were deeply unfortunate and for genuinely innocent victims of the system, deeply regrettable. But they were not systemic. 

An Act of Parliament, then, might be thought justified precisely because a second order principle is being defended. The abuse of the legal system, and of legal powers, is a constant concern in every society. The deliberate and ostentatious laying down of a marker against those dangers is politically useful and valuable. It is also an ancillary, if minor, bonus that an Act quashing convictions in their entirety rather than simply pardoning the innocent postmasters has a certain satisfying finality, and ring, to it. 

It also happens to promote the public understanding of the awesome and unlimited legal powers of parliament. This would neatly demonstrate the superiority of that power to the residual and subordinate powers still left in the hands of the Crown, acting on the advice of His Majesty’s Government, which would be the legal basis for any royal pardons.

Conclusion

The Post Office scandal looks like it will live long in our collective memory, reminiscent of the famous ‘Cathy Come Home’ documentary, nearly six decades ago. A purblind “computer says no” mentality was weaponised and metastasised to ruin the lives of people who are some of the most respected and beloved pillars of many communities, small and large, up and down the country. The decision to legislate to remedy the situation is not just constitutionally acceptable, it is in fact a shining example of the best traditions of parliament acting powerfully to grant justice to the wronged. 

Parliament can do so by redressing a legitimate grievance brought to its attention and definitively overturn a series of judgments that could only have been obtained, and were only obtained, by a toxic, captured and wilfully blind corporate culture, including some participants for whom a reckoning must surely be looming.

The author would like to thank Brian Christopher Jones, Paul Scott and Mike Gordon for their extremely helpful comments on an earlier draft. The usual disclaimer applies.

Robert Craig, Lecturer in Law, University of Bristol

** A previous version of this blogpost stated that ‘the Guildford Four and Birmingham Six received, after years of wholly unjust time in prison, only a royal pardon’. This was incorrect and the statement has now been removed.

(Suggested citation: R. Craig, ‘The constitutional implications of legislating to exonerate the Post Office sub-postmasters’, U.K. Const. L. Blog (16th January 2024) (available at https://ukconstitutionallaw.org/))