It was described by British prime minister Rishi Sunak as “one of the greatest miscarriages of justice in our nation’s history”. More than 700 sub-postmasters were wrongly convicted of theft and related offences between 1999 and 2015 on the basis of faulty computer evidence tendered by prosecutors.
The cause was hundreds of bugs in the Horizon accounting system built by Fujitsu for the UK Post Office. One, the “Dalmellington bug”, named after the village in Scotland where an operator first fell victim to it, caused the screen to freeze as a user was attempting to confirm receipt of cash. Unknown to the user, though the system froze, the transaction was still recorded. In the case of Dalmellington, it created a £24,000 (€28,000) discrepancy in Post Office records. A separate bug duplicated transactions. The effect was to overstate what the sub-postmasters received.
Ultimately these bugs would lead to convictions for theft and false accounting. Post Office workers were ruined financially, making payments to avoid prosecution. Some who were innocent pleaded guilty to avoid imprisonment. Lives were shattered. At least four individuals took their own lives.
It has been occupying headlines in Britain again since an ITV drama series on the scandal, Mr Bates vs The Post Office, was broadcast, but the affair has not received much attention here, perhaps because many in Ireland regard British miscarriages of justice as unremarkable. But it should not be disregarded. Some of those convicted were in Northern Ireland. And there are wider implications: our legislation, enacted in 1992, has made admissible the kind of evidence that led to those wrongful convictions.
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There was no way isolated sub-postmasters without technical expertise could challenge in court the accuracy of the records produced by the computer system as proof of their guilt. They were wrongly assured by the Post Office investigators that no other sub-postmasters were experiencing the same difficulty.
Eventually, in 2009, a sub-postmaster rallied others to campaign to vindicate themselves. They persevered despite being rebuffed by their union; it had a cosy relationship with the Post Office, from whom it got a subvention. They were fobbed off with Post Office offers of an independent investigation, but the investigation’s operation was obstructed by executives and lawyers in the Post Office.
It was only with the aid of a whistleblower in Fujitsu that it became known that defects in the system had, in fact, been detected and that officers in the Post Office were aware of the issues.
In 2019, with the assistance of a litigation funder, former sub-postmasters mounted a class action against the Post Office for oppressive behaviour in the London high court and won. The judge excoriated Post Office executives and computer operatives for covering up the truth and even lying. Since then, a battle has gone on to overturn the convictions and to agree adequate compensation for all affected by the wrongful actions of the Post Office, not just those wrongly convicted.
It is a chilling tale of the lengths to which executives in an organisation can go to cover up its mistakes, irrespective of the damage done to individuals. Kevin Hollinrake, the minister with responsibility for the postal system, described the Post Office as “not only incompetent, but malevolent in many of [its] actions” in the scandal.
In this country, too, there is widespread reliance on automated accounting systems, and the law provides insufficient safeguards to ensure that they are admitted in evidence only if they are reliable. Were something similar to happen here, vindication of the innocent would be more difficult because no provision exists for class actions of the kind taken by the sub-postmasters in Britain.
It was a longstanding legal principle, known as the rule against hearsay, that all facts had to be proved by the testimony of a person who observed them.
As more sophisticated automatic systems of keeping records evolved, statements in them could not conveniently be verified by an individual who had observed the facts and recorded them. Yet such records were usually reliable. It was argued that unless they were admitted in evidence thieves and debtors would escape liability.
In the 1970s the Law Reform Commission, presided over by Mr Justice Brian Walsh, asked me to prepare a working paper on the subject. In line with what had been done in other common law countries, the working paper recommended that business and administrative records should be made admissible generally.
It stipulated, however, that such records should be made admissible only if evidence were given proving their reliability, and notice of that evidence given to the other party to the litigation in advance of any hearing.
This recommendation was adopted in reports issued by the Commission in 1988. But the Criminal Justice Act, 1992, which made business and administrative records generally admissible in criminal cases, had no provision requiring proof of their reliability. The Electronic Commerce Act 2000, which makes electronic evidence generally admissible, replicates this omission.
This may suit business interests and those involved in prosecutions by increasing the heavy burden borne by a litigant or accused disputing the reliability of computer records tendered in evidence against them.
If miscarriages of justice resulting from the readier admission of computerised administrative and business records are to be avoided, their reliability must be verified. Effective verification requires independent inspection. That should be financed by those profiting from reliance on more sophisticated systems of records.
Doubtless, the apostles of expedition in litigation will lament the extra expense. It is, however, necessary if we are to avoid appalling miscarriages of justice of the kind suffered by sub-postmasters in the UK.
Charles Lysaght was Counsellor to the Law Reform Commission from 1978 to 1988. He lectured on the law of evidence in London University and King’s Inns