EWJ FEB 59 2025 web - Flipbook - Page 9
Progress remains slow, however, with the CCRC
having called for additional government funding to
facilitate its efforts. Many subpostmasters spent years
in prison and were made bankrupt through the Post
Office's asset recovery efforts, while their personal
tragedies include at least one suicide.
But in examining the circumstances and handling of
the Malkinson case, it is not yet a statutory inquiry,
meaning that witnesses will not be compelled to give
evidence nor will there be any legal obligation to
disclose documents.
As was the case with Post Office Horizon, the
Malkinson inquiry should also be elevated to become
statutory - i.e., a full public inquiry held under the
Inquiries Act 2005.
Libor
Another example of miscarriage of justice is the case of
Tom Hayes, a former currency derivatives trader. Sentenced to 14 years in prison in 2015 — reduced to 11
on appeal — for manipulating the Libor interest rate
benchmark, Hayes' conviction was referred by the
CCRC in July 2023.
Both inquiries should ideally provide comprehensive
answers in relation to the conduct of public bodies and
prosecuting authorities. Only then can lessons be
learned by the police and the CPS, although it is
already self-evident that inconvenient facts should not
be ignored nor evidence withheld.
Having had a previous CCRC application rejected, the
CCRC changed its position following a U.S. judgment
relating to Deutsche Bank traders, Matthew Connolly
and Gavin Black. In January 2022, in USA v. Connolly,
the U.S. Court of Appeals for the Second Circuit
found a lack of evidence that Connolly and Black had
caused Deutsche Bank to make false Libor submissions and overturned their convictions. [8]
It is also vital that criminal investigations do not fixate
on one hypothesis to the exclusion of others, and that
securing a conviction is not viewed as a "win." The inquiries' findings will perhaps restate the importance
of applying these basic principles at all times and
recommend how this might best be achieved.
Following the 2008 global financial crisis, seven traders
who faced similar charges to Hayes were convicted by
English courts. But no senior bank executives faced
criminal proceedings; the banks simply paid fines. At
the time, public sentiment against the banking sector
was very strong. Among others, this was reflected by
Mark Carney, who was governor of the Bank of England from 2013 to 2020 and who called for tougher
sentences against rogue traders.
In terms of the CRCC, which was established in the
wake of high-profile cases where the convictions were
later recognized as miscarriages of justice, including
the Guildford Four and the Birmingham Six, it is
worth revisiting precisely why and how those cases
and others like them occurred.
Among their common features were false confessions,
police misconduct, nondisclosure and issues about the
reliability of expert forensic testimony. The pressure to
obtain convictions and restore public confidence were
also contributory factors.
Although Hayes' appeal has yet to be heard, the
CCRC has said there is a "real possibility" that the
Court of Appeal could overturn his conviction. Pitcher
said the CCRC's decision to refer Hayes' case followed
a "lengthy and complex investigation" and that the
Court of Appeal should clarify whether the "right legal
approach" was taken.[9]
Public Confidence
Public confidence in the police and prosecuting
authorities remains a widespread concern: full
answers and total accountability are therefore
paramount. As Emily Bolton, the founder of Appeal
and Malkinson's solicitor, said in a statement: "The police, prosecution, courts and CCRC all failed disastrously in this case. Their actions must be scrutinised
in the same way investigators interrogate black box
data after a plane crash."[12]
It is now known that the main boards of the banks
were aware of the pressure on rate-setting executives
from the government and the Bank of England to
post Libor rates that did not reflect market reality. But
this was withheld from the trials of the traders, many
of whom were jailed as a result.[10]
To avoid future miscarriages of justice, or remedy
them expeditiously once they are discovered, there
needs to be a fundamental reevaluation of how investigators, prosecutors and the CCRC operate. Manifestly, an increase in funding for every part of the
criminal justice system must also be prioritized to ensure that standards are maintained at every level and
the potential for future miscarriages is minimized.
Lessons to Learn
These cases highlight how miscarriages of justice can
occur: In Malkinson's case, there was a persistent refusal to admit potentially exculpatory evidence, and
in Horizon, a private company seeked to protect its
reputation by throwing its employees under the bus.
An independent public statutory inquiry, Post Office
Horizon IT, was established in September 2020 "to
gather a clear account of the implementation and
failings of the Horizon IT system at the Post Office
over its lifetime."[11] The inquiry's findings and
recommendations are not expected until next year.
Looking ahead, among other potential inquiry
recommendations, prosecutors and investigators
could and should face stronger penalties for disclosure failings in criminal proceedings.
The police have been extensively criticized for their
disclosure failures in numerous cases with many trials
collapsing, often resulting in huge financial cost to
taxpayers and enormous personal cost to defendants.
Meanwhile, an independent inquiry into Malkinson's
wrongful conviction will investigate the role of the
GMP, the CPS and the CCRC to determine who knew
what and when, and where the ultimate blame lies.
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