The "golden thread" of British justice - the principle that people are innocent until proven guilty - has been exposed by the Post Office Scandal as more deeply tarnished than previously thought, a new study shows.
A birds-eye view of the criminal justice system provided to researchers from UCL and the University of Exeter by former subpostmasters (SPMs) suggests innocent until proven guilty was rarely taken seriously enough by any part of the criminal justice system that SPMs came into contact with.
Whilst problems with Post Office Limited are well known, victims told researchers they also experienced a "culture of disbelief and defeat" in part because of the way their lawyers represented them.
Subpostmasters reported experiencing humiliating, brutal and distressing treatment during early interviews with Post Office investigators, where they said they were intimidated, harassed, bullied, and sometimes pressured to admit guilt. This led to some "confessing" to crimes they had not committed to escape the stress and trauma of their interrogation.
Those problems have been well investigated by the Post Office Horizon Inquiry, but what has not been looked at was subpostmaster experiences of defence lawyers. The researchers discovered defence representation for many SPMs was constrained and haphazard. Defence lawyers were often described as being outgunned, out of their depth, or disinterested in their clients, although many SPMs also recognised POL had made the defence lawyers job very difficult. Many SPMs were persuaded to plead guilty to crimes they told the lawyers they had not committed because the risk of imprisonment totally dominated advice to them, but also because their claims of innocence were not investigated or taken seriously. False accounting charges were treated more like a technicality than a serious dishonesty offence that would blight their futures.
The study was carried out by the experts running the Post Office research project and the Evidence-Based Justice Lab - Dr Sally Day, Professor Richard Moorhead and Professor Rebecca Helm, from the University of Exeter Law School, and Dr Karen Nokes, from UCL Faculty of Laws. The team have been carrying out in-depth interviews with those affected by the Post Office Scandal to track the impact on their lives.
This report is based on data gained from 28 in-depth, semi-structured interviews with 35 participants, including 26 former subpostmasters, six partners, two adult children, and one sibling. Particular care was taken to protect their welfare during the process.
Though some SPMs reported having a positive experience with their legal representation, many described a lack of belief from their lawyers. Those lawyers often appeared to be influenced by POL's role - a large, trusted organisation - as prosecutor. One described their lawyer saying, "No twelve people on a jury would believe that a prestigious government organisation would have a dodgy computer system." Several defence lawyers emphasised to their clients how they were up against "a powerful," well-resourced institution, and often explicitly said that fighting the case was pointless.
Lawyers left to advise clients in the absence of disclosure from the Post Office typically encouraged their clients to plead guilty in the hope they would escape jail, sidestepping rather than addressing the client's protestations of innocence. The research suggests that the consequences of a guilty plea and the particular need to advise a client who is innocent that they should not plead guilty were either ignored or not taken seriously enough.
Professor Moorhead, who leads the research team said, "Lawyers treated plea decisions as routine, when for the subpostmasters they were life changing. Protestations of innocence were not taken seriously. Their opponent behaved appallingly, but client stories were also not fully understood or investigated by those they had to put faith in. Whilst advice to plead was well received by some, who were thankful that plea agreements kept them out of jail, others still bear the scars of sometimes profound carelessness in their treatment by their lawyers and the courts."
Dr Day said, "Experiences of subpostmasters show how both broader systemic issues in the criminal justice system and defence practices impacted the scandal. Low legal aid rates and austerity measures, in addition to severe case backlogs, shortages of defence lawyers, and high workloads, with a culture that often assumes defendant client guilt, have contributed to the prioritisation of guilty pleas over quality service and client care."
SPMs reported insufficient counselling on the impact of a criminal record on their lives and careers, with communication on their cases generally regarded as poor by SPMs.
Dr Nokes said, "Subpostmasters we spoke to indicated a desire to plead not guilty, generally their lawyers in essence said they had no choice or emphasised the threat of prison. Most felt they had no alternative but to change their plea to guilty. But they often did so on a basis that was not fully informed."
Professor Helm noted, "The pressures and cultures that allowed such injustice to occur are still operating in the criminal justice system today. Indeed, they may be worse. Reform of the criminal justice system, such as those following on from the Leveson review, needs to reflect explicitly on the real vulnerabilities of defendants facing plea decisions."
The researchers recommend that the courts and ongoing criminal justice reform process reconsiders approaches to sentence discounting, with a particular suggestion that the Sentencing Council review its guidance on guilty plea to ensure that defendants are not pressured to plead guilty before disclosure is made or where expert evidence is needed.
Quality in the provision of criminal defence services needs to be properly addressed, they say, with the Law Society and Bar Council being called upon to strengthen their practitioner guidance. Funding for sustainable and well-run defence services is needed as well as more effective oversight of and emphasis on quality.
