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Can scheme to quash Post Office convictions work?

Getty Images Scales of Justice of the Central Criminal Court fondly known as The Old Bailey in the city of London, England, UKGetty Images
The decision to override the courts is unprecedented

The government's plan to clear the names of hundreds of people wrongly convicted in the Post Office Horizon software scandal is truly unprecedented.

It will be some weeks before the legislation is presented to Parliament, but we have a pretty clear idea of what the headlines translate to - and why, on a much deeper level, it represents a constitutional leap into the dark, albeit for a noble cause.

In short, the Bill won't list name-by-name the individuals that the government proposes to clear of wrongdoing.

There will be no long schedule of the innocent read out in the Houses of Parliament.

Instead, the Bill will be a mechanism that declares that anyone found guilty of a Post Office scandal-related offence, during a specific time frame, will have their conviction quashed as soon as the legislation receives Royal Assent.

In other words, exoneration will be a truly automatic process: no declaration in an appeal court, vindicating the innocent.

Scotland, which runs a different legal system, is also planning a similar law.

A moral dilemma

A blanket exoneration also means ministers have decided Parliament should, without considering the individual facts, overturn convictions of anyone who was genuinely guilty.

Faced with a moral dilemma of how to best see speedy justice done for the innocent, the government has made a political choice to live with that consequence.

Policy officials and government lawyers have an awful lot to work though in the coming weeks to make the plan a reality.

For a start, they have to work out how to make sure that UK criminal records are swiftly expunged and that there is a robust and trusted bureaucratic record of who has been exonerated.

Ministers must also decide what to do with the small number of individuals who have so far failed in attempted appeals.

It is not clear at present whether the legislation will need to deal with around 50 cases rejected by the Criminal Cases Review Commission, the official miscarriages body that refused to send those appeals back to judges.

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Assuming all those issues can be solved, quashing the convictions then unlocks the door to compensation.

The government has a standing offer of £600,000 to anyone who has their conviction quashed in relation to the scandal - but that money won't be paid out automatically once the Bill becomes law.

Nobody cleared under the plan will receive that cash until they sign a declaration that they definitely were not guilty.

That declaration will basically act as a promise they have not done anything wrong.

And that means that anyone who was genuinely guilty could be later prosecuted for attempting to defraud the government by taking advantage of the scheme.

This sounds neat in practice because it tries to minimise the risk of repeat fraud.

But the question is whether some of those who are genuinely innocent have enough trust in the state to sign the form, given they may fear being wrongfully convicted again.

Tipping the balance

The only realistic alternative to all of this was to find some way to speed up the Court of Appeals process.

The former Lord Chief Justice, Lord Thomas, told the BBC earlier this week that the courts could handle the workload.

There are, for instance, recently retired highly experienced Court of Appeal judges who could help run the cases in large batches.

Serving judges don't comment on Parliament and politics - but there is a lot of nervousness in the legal world from which they are drawn.

Constitutionally, Parliament and politicians have no business interfering with the decisions of courts - that is how power is separated and balanced in the UK. This plan tips that delicate balance.

"What we have is Parliament seizing from the courts and the judges the right to say who is guilty and who is not guilty," Lord Ken MacDonald, the former Director of Public Prosecutions told The BBC.

"And the problem is that once this dam is burst - we can all see it's being done for the best of reasons here - who's to say how such a process might be used in the future?"

Will another government, on another day, be once again tempted to override the independent courts?

The government will be under pressure to make sure that this legislation is truly a one-off exceptional step to correct the most exceptional injustice in British legal history.

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