Tuesday, 22 December 2020

Paul Marshall's "resignation" letter to the Court of Appeal

Paul Marshall
On 15 December, Paul Marshall (pictured left) stood down from representing Seema Misra, Tracy Felstead and Janet Skinner at the Court of Appeal.

He faces possible contempt of court charges over passing a document known as the "Clarke Advice" to the police.

I reported Mr Marshall's decision to step down at the time. Now I have the full text of the letter he wrote to the court explaining his decision. It makes for troubling reading. 

In his letter, Mr Marshall states he has been made subject to an order of the court: 
"In proceedings to which I am not a party, in the course of a hearing at which I was not present, in the course of a hearing of which I was given no notice that any issue in connection with my conduct was to be raised... The first notice of which was given to me 4 days after the order was made, where the document founding criticism of my conduct by the court was provided to me 11 days after the hearing, and then only upon my specific request."
Right then

The night before a Court of Appeal hearing on 18 November 2020 Mr Marshall sent the Clarke advice to the Metropolitan Police. His junior, Flora Page, passed it to a journalist.

The next morning, Brian Altman, QC for the Post Office, said the advice (written in 2013) was alleged to contain evidence a senior Fujitsu engineer:
"relied upon in many of the prosecutions [of Subpostmasters] had failed in many cases to disclose information he was well aware of that Horizon had bugs and errors in it."

This goes to the heart of the Post Office scandal, because in Feb 2015 (nearly two years later), the then chief executive of the Post Office, Paula Vennells, told a parliamentary inquiry:

"If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those."

As a result of what was said about the Clarke advice in court on 18 November, Lord Arbuthnot told the government it was clear the Post Office had "lied" to parliament in 2015, and the former Lord Chancellor, Lord Falconer, told me it was likely a "smoking gun".

Shortly after the existence of the Clarke advice was made public, Ms Vennells announced she was resigning from her job chairing an NHS Trust.

Nonetheless, the judges took a dim view of the document's disclosure outside Court of Appeal proceedings, and began the process of considering contempt charges against Mr Marshall and Ms Page.

Open justice?

On 26 November I applied to the court to be supplied the Clarke advice on the basis that it was of significant public interest. 

On 3 December, my application was refused. Nearly three weeks later I am still waiting for the approved ruling which explains why.

In his letter of 15 December Paul Marshall tells the Court of Appeal he feels "inhibited from continuing fearlessly to represent my clients before this court." 

I am publishing a redacted version of the letter below. Acting out of an abundance of caution, I am trying to measure the public interest against the Court of Appeal's unwillingness to allow the Clarke advice and its contents to be made public. I hope, by removing references to what the Clarke advice contains beyond that which is already in the public domain, I have struck the right balance.

More importantly, I hope the redacted elements do not detract from the power of Mr Marshall's argument. Something has gone terribly wrong when a barrister feels unable to represent his clients in one of the highest courts in the land.

If you can't see the letter embedded below, click on the link. You may need to sign up to Scrib'd to read it, which is free. 

Paul Marshall letter to the... by Nick Wallis

Earlier this week I told Mr Marshall of my intention to publish his letter and asked if he had anything to say about it. He declined to comment, other than to ask me to make clear that I had not received the letter I am publishing from him.

I asked the court if it had anything to say in response to Mr Marshall's letter. I understand it is not in a position to reply, given it is now the Christmas holidays. 

I asked if Mr Altman had anything to say about Mr Marshall's letter, given the criticisms which are levelled at him. I was told by lawyers acting for the Post Office it would not appropriate for Mr Altman to comment, however:
 "that should not... be taken as an acceptance of anything said in Mr Marshall’s letter". 

On 18 November, Mr Altman said the Post Office only brought their knowledge of the leaking of the Clarke advice to the court:

"because we regard it as our professional duty to ds so.  We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves."
On 17 December, the three appellants in question, Tracy Felstead, Janet Skinner and Seema Misra, won the right to have their prosecutions by the Post Office considered as a possible affront to the public conscience. It's a shame they have been deprived of their legal representatives in doing so.

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Monday, 21 December 2020

Horizon trial judgment could force changes to the legal system's view of electronic evidence

Stephen Mason
I have known the barrister Stephen Mason for nearly a decade. He specialises in the presentation of electronic evidence in court. 

When the Second Sight interim review into the state of the Post Office's Horizon IT system was published in July 2013, I asked him straight up if it was possible that Horizon IT errors could be responsible for discrepancies in Subpostmaster accounts. His simple "Yes, of course" by way of response was unequivocal.

We stayed in touch. I read some of his work, including his clear view of where the court was wrong in the prosecution of Seema Misra, the West Byfleet Postmaster sent to prison whilst pregnant.

Mr Mason's central argument is that a recommendation given by the Law Commission in 1997 to the courts is helplesssly, hopelessly and dangerously wrong. The guidance states:

"in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time... The principle has been applied to such devices as speedometers and traffic lights and in the consultation paper we saw no reason why it should not apply to computers." [my italics]

You don't need to be a legal eagle or IT genius to see that the Law Commission's decision to leap from a speedometer to the vastly complex digital ecosystems underpinning modern computer networks is mutton-headed, to say the least.

Yet it is this presumption the courts have relied on throughout the 21st century in the prosecutions of Subpostmasters and unfortunate individuals in other spheres, who were, it turns out, entirely innocent.

Mr Mason has been attempting to get the legal position on computers changed for as long as I can remember. Now he has a document which might force the issue - the Horizon Issues judgment, handed down on 16 Dec 2019.

On the anniversary of the judgment, Mr Mason, along with the barrister Paul Marshall and eight other learned authors, published a paper positing alternatives to the way digital evidence is currently handled in the courts.

It is called: "Recommendations for the probity of computer evidence" and it states:

"All computers have a propensity to fail, possibly seriously. That is to say, they have a latent propensity to function incorrectly."

As a general rule of thumb:

"A program on a mobile telephone might hitherto have contained tens of thousands of lines of software code. A program such as Horizon will contain tens of millions of lines of code, and will be exceedingly complex. Programming is a human task and programmers make mistakes; an error rate in writing software code of 10 errors per thousand lines of code is considered good, 1 error per thousand lines is rarely if ever achieved."

By way of example the paper cites a 2006 University of York review of a study conducted by the Ministry of Defence into the safety of the software contained in its Hercules C130J air transporters. The MoD found that the Hercules software contained about 1.4 safety-critical faults per thousand lines of code (kLoC) with an overall flaw density of around 23 per kLoC

The review notes:

"whilst a fault density of 1 per kLoC may seem high it is worth noting that commercial software is around 30 faults per kLoC, with initial fault injection rates of over 100 per kLoC."

Mr Mason et al's clear recommendations for a protocol on the way electronic evidence is treated by the legal system can be read here. They seem eminently sensible.

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Thursday, 17 December 2020

Victory for Subpostmasters, defeat for press freedom

l-r Janet Skinner, Tracy Felstead and Seema Misra

After a day of legal argument at the Court of Appeal, Lord Justice Holroyde and his fellow judges have decided to allow Seema Misra, Tracy Felstead and Janet Skinner to argue their prosecutions were an affront to the public conscience and should never have happened.

Earlier this year, in the light of the Bates v Post Office civil litigation, the Criminal Cases Review Commission referred 47 convictions to the courts, arguing there was abuse of process by the Post Office as prosecutor, and the convictions may well be unsafe. 

The CCRC split the abuse of process into two limbs, or categories, or grounds (all three terms were used liberally and interchangeably in court today). The first limb contends that a lack of disclosure of important information (eg Horizon fault log data) by the Post Office led to unsafe convictions. The CCRC contended that had that information been put into the hands of a defence team it would have altered the way they defended the case and/or advised their client. 

The second limb was about the prosecutions being an "affront to the public conscience" - ie that the Post Office knew it should not be prosecuting, but did so anyway (eg for asset recovery purposes, or despite knowing its Horizon data was unreliable).

Of the 47 convictions referred to the courts by the CCRC, the Post Office only accepts there was an affront to the public conscience in 4 of them (including Noel Thomas, who featured in the very first Computer Weekly investigation into the Post Office Horizon IT scandal back in 2009). 

The Post Office also resists any abuse of process with three of the referrals.

From the remaining 40, six convictions have already been overturned at Southwark Crown Court.* That happened last Friday, so suddenly that Lord Justice Holroyde today said he had no idea the hearing was due to take place until he found the convictions had been quashed, via twitter. As the only journalist live-tweeting in court that day, I am delighted to have been of service.  

That leaves us with 34 Subpostmasters who the Post Office agree should have their convictions overturned on grounds of lack of disclosure, but not on the issue of affront to the public conscience. It was their cases and their cases alone which were the subject of proceedings today.

All the limbs

There were three main schools of thought amongst the parties in court today:

a) the Post Office and a couple of appellants, whose view was that consideration of limb 2 was unnecessary,

b) the bulk of appellants, who essentially didn't mind either way, and so long as things didn't drag on too long, they would like the judges to consider limb 2 of their appeal if limb 2 considerations were allowed,

c) Seema, Tracy and Janet, who were adamant that consideration of limb 2 was essential for justice to be done.

To cut a long story short: Seema, Tracy and Janet won. The judges decided they will be able to argue that their prosecutions were an affront to the public conscience. 

In fact it was something of a cake-ist victory for all the appellants, as the judges ruled:

a) second limb arguments could be heard within the time frame already allotted by the court for the full appeal hearing, which runs for a week from 22 March 2021. 

b) any appellant who wished to have category 2 abuse considered in their specific case could apply to do so.

Seema, Janet and Tracy's case was put to the court by Lisa Busch QC, the late substitute for Paul Marshall, who stood down from representing his clients earlier this week. As Ms Busch made clear, she was using a lot of the work, and the skeleton arguments Mr Marshall had submitted to the court shortly before his departure.

Speaking of skeleton arguments

Whilst the appellant Subpostmasters will justifiably be celebrating tonight, journalists are not. Tom Witherow from the Daily Mail made an application to receive the documents released to me by the court, which the Post Office generated in response to my application to receive the Clarke advice. He developed his argument carefully and cogently with an oral submission on a videolink.

The Post Office previously told me they felt I could not publish the documents Mr Witherow was requesting, and when Brian Altman QC for the Post Office told the court he had no object to Mr Witherow receiving the documents I was a bit confused. It turns out Mr Altman was quite happy for Mr Witherow to receive the documents, but that he should not be allowed to publish them. This, whilst consistent with the Post Office's position, is.... frustrating. 

Mr Altman also, with my advance agreement, pointed out to the judge that I was seeking the skeleton arguments of all parties.

The judge asked me to make a submission if I wished to. I stood up and said I had asked all the parties for their skeleton arguments for today's hearing, that I had not received them and that this was very odd as it is usually a formality for any journalist to receive skeleton arguments from the parties once proceedings are underway without any need for applying to the court.

After rising to consider their position, the judges came back and told us they had decided to decline both mine and Tom's application. I was a little bemused as I was not aware I had made an application to the court on this occasion. And I am more than a little concerned, as it means the Post Office, whilst professing helpfulness, openness and transparency, has successfully (whether inadvertently or not) managed to keep documents out of the public domain which, were it not for the bizarre sequence of events which began on 17 November, would be published as a matter of course, without remark.

That said, the Post Office made it clear to the judges they had no objection to Mr Witherow seeing the documents about the Clarke advice, nor to me receiving the skeleton arguments. And I have been told that the Post Office have also kindly agreed to pay for and circulate transcripts of every hearing from 3 Dec onwards (including events at Southwark Crown Court) in the interests of aiding reporting and for the public record.

I still haven't received the approved written judgment against my second application from 3 December. 

If you would like to read a blow-by-blow account of what happened today, you are more than welcome to, read my collated live tweets, on this web page.

* The six appellants were separated out into a crown court because the original prosecutions were at magistrates' courts.

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Tuesday, 15 December 2020

Barrister quits over Clarke advice order

Paul Marshall

A barrister representing two former Subpostmasters and a former Post Office worker at the Court of Appeal has stepped down, saying he feels "disabled from discharging my professional duty to my clients."

Paul Marshall, from Cornerstone chambers, is facing contempt of court charges after he admitted passing a confidential document, known as the Clarke advice, to the Metropolitan Police. Until today he represented Seema Misra, Janet Skinner and Tracy Felstead, who were all prosecuted by the Post Office and sent to prison.

Mr Marshall's contention, expressed through his own representative at the Court of Appeal earlier this month, is that any contempt charge against him in these circumstances would have no basis in law. 

Flora Page
Mr Marshall's junior, Flora Page, has already exited, after admitting passing the Clarke advice to her brother, a journalist. She, too, faces contempt charges.

The Clarke advice was written for the Post Office in 2013 by a barrister called Simon Clarke. It contains information that a senior Fujitsu engineer failed to disclose Horizon IT errors during the prosecutions of a number of Subpostmasters. The document has yet to be made public. In 2015, the chief executive of the Post Office told Parliament that no evidence of any miscarriages of justice had been found.

The allegation of contempt for disclosing the Clarke advice was first raised by the Post Office in court on 18 November, against Flora Page. They said the document should only have been seen by the judges, appellants and their legal representatives.

On 19 Nov, the Met alerted the court to Mr Marshall's actions in sending the Clarke advice to them

A hearing on 3 Dec led the Court of Appeal to order a different "constitution" of judges to consider whether a contempt had taken place.

In his letter to the Court of Appeal, sent today, Mr Marshall says:

"Having carefully and anxiously reviewed the proceedings on the 18 November, 19 November and 3 December 2020, and the terms of the order made on 3 December 2020, I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clients.  Accordingly, it is in my clients’ best interests to be represented in these appeals before this court by other counsel…. It is most unfortunate for my clients that they are deprived of representation by both counsel of their choice as a consequence of events of 18 - 19 November and 3 December 2020."

(UPDATE: I am now in possession of the full text of Mr Marshall's letter and I have published it, with some redactions, here

"An absolutely brilliant barrister" 

Mr Marshall and Ms Page were the only two barristers arguing that the Post Office's actions in prosecuting the appellant Subpostmasters was an affront to the public conscience. Their arguments were due to be heard in court this Thursday 17 December.

Two other barristers from Cornerstone chambers - Lisa Busch QC and Dr Sam Fowles - have agreed to step into Mr Marshall and Ms Page's shoes to make those arguments in their absence. 

Seema Misra, who was sent to prison ten years ago whilst pregnant, and whose prosecution the Post Office now admits was an abuse of process said:

"We can't thank Paul enough for going the extra mile. We are so sorry to lose him at this late stage, but we understand the reasons.  He has been an absolutely brilliant barrister."

Tracy Felstead was prosecuted by the Post Office and was sent to prison aged 19 (read her harrowing story here). The Post Office has now admitted Tracy's prosecution was also an abuse of process. Today she said:

"I’m really upset that it’s come to this, I am truly grateful for all Flora and Paul have done for us. I understand their decisions and I’m truly grateful for the new team jumping on board."

As the Clarke advice was referred to extensively on the 18 and 19 November in open court, I applied to see it. My request was refused. Lord Arbuthnot has demanded a copy of the Clarke advice is placed in the Libraries of both Houses of Parliament. The government has so far refused. 

Shortly after the existence and the importance of the Clarke advice was made public, Paula Vennells, Chief Executive of the Post Office when the advice was written, announced she was stepping down from her job chairing a large NHS Trust.

Read my written application to see the Clarke advice here.

Read my oral submission in support of my application to see the Clarke advice here, in which Lord Falconer, the former Lord Chancellor, describes the document as a "smoking gun".

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Saturday, 12 December 2020

Former Post Office staff told NDAs can be waived for inquiry

The Post Office has said non-disclosure agreements signed by present and former staff will not be enforced for those who want to give evidence to the Post Office Horizon IT Inquiry. This removes at least one obstacle (or excuse) potentially stopping former Post Office from contributing to the inquiry. The waiver also includes serving and former Subpostmasters.

The Post Office made the concession in response to a request from the inquiry chair, Sir Wyn Williams, who himself appears to have been prompted by the Communications Workers Union.

Writing to the CWU's Andy Furey, Sir Wyn says:

"Post Office Limited has indicated it will waive any confidentiality obligations owed to the organisation by current or former postmasters/employees so that such individuals may engage freely with the Inquiry. The waiver is limited in purpose so it applies to any current or former postmaster or Post Office Limited employee who wants to engage with the Post Office Horizon IT Inquiry."

There is, of course, a catch. According to the Post Office:

"The scope and operation of any waiver will need to reflect the specific agreement entered into with the individual, given that the terms, rationale for them, and extent to which it might be appropriate to maintain them for matters outside of the Inquiry and its terms of reference, will be case specific.  It would however reflect the overarching principle that Post Office will enable the individual to participate in the Inquiry free from any inhibition created by an NDA."

Hmm... you receives your money, you takes your chances.

The letter which prompted the above appears to have been a letter sent by Mr Furey on 23 November, in which he told Sir Wyn:

"I am concerned that unless your inquiry can demonstrate that witnesses are accorded full protection, you may struggle to get vital witnesses to contribute. Even if you were to get witnesses to participate, it could be superficial and from their perspective they may wish to give the impression they are co-operating even though they may choose to hide behind the non- disclosure position in response to some pertinent questions."

Andy Furey, the CWU's Assistant Secretary told me:

"We welcome this response and we’re pleased that Sir Wyn sought and received assurances from the Post Office to clarify this issue. Hopefully this will provide some reassurances to people, so they feel they can submit evidence to the inquiry, speak from the their experiences and tell the truth of what’s going on without fear of reprisal or repercussions. 

We sincerely hope this also means former Post Office managers and executives who were involved in the decision to prosecute Subpostmasters and the subsequent cover up and rebuttal of the Second Sight investigations - including Alice Perkins, Paula Vennells and Mark Davies - will come forward and tell us what they know."

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Friday, 11 December 2020

First Subpostmaster convictions quashed

l-r Chris Trousdale, Neil Hudgell, Vipin Patel, Varchas Patel, Mrs Patel, Siema Ashraf, Kamran Ashraf, Jaswinder Barang, Mr Barang, Sharon Barang

Six former Subpostmasters have made history by having their convictions quashed at Southwark Crown Court.

Julie Cleife, Christopher Trousdale, Susan Rudkin, Vipinchandra Patel, Kamran Ashraf and Jasvinder Barang were all prosecuted by the Post Office between 2004 and 2012 for crimes ranging from false accounting to theft, fraud and false representation.

Today a judge at Southwark Crown Court quashed their convictions after the Post Office indicated at the beginning of November it would not oppose them.

Their cases had been referred to the crown court by the Criminal Cases Review Commission as part of a wider group of 47 Subpostmasters whose cases were referred earlier this year. The CCRC determined their prosecution was an abuse of process because it relied on using inaccurate data from the Post Office's unreliable Horizon IT system. 

Because this smaller group were initially convicted at magistrates courts, their appeals, or more accurately, re-trials needed to be take place at a crown court.

Speaking outside court shortly after her conviction for fraud had been overturned, Jaswinder Barang said:

"It's the worst thing, to be found guilty for something that you haven't done. I am a law-abiding citizen and that's the way I want to spend the rest of my life. Today is just absolutely wonderful - it's made me feel very happy."

Her daughter-in-law Sharon Barang added:

"We're just really happy - we were the first ones to get justice and we really hope this will set a precedent for many more people to get justice. It's been an absolute nightmare, for our family... such an ordeal."

Kamran Ashraf, who was convicted of theft in January 2004 said: 

"It's means everything. It's been 17 years. Way too long. Way way too long. But the main thing is we got there in the end. I'm just shellshocked. I just don't know how to react. So many mixed emotions. We are overjoyed, but at the same time when you think back and just think about the things that have happened over the last 17 years. Not just to me, but my family, and all we've been through as a group, it's just been horrendous. It really has."

Siema Ashraf, who was a young mother when Kamran was sent to prison said:

"It's wonderful. I'm still in shock. I think it hasn't hit home yet. We've been waiting for this day for a very very long time."

Helen Pitcher, Chair of the Criminal Cases Review Commission said:

"This is really good news for the people involved in these six cases... We know from the Post Office that there could be hundreds of other cases out there – it seems likely that some of those will approach the CCRC for help while others may still be able to go direct to the Court of Appeal.”

The Post Office said they:

“did not oppose these appeals and sincerely apologises for historical failings. We have taken determined action to address the past, ensuring there is redress for those affected and to prevent such events ever happening again.

Fundamental reforms have been made to forge a new relationship with postmasters, helping them to build thriving Post Office businesses for customers and communities throughout the UK.”

The Post Office is currently reviewing around 800 prosecutions made between 1999 and 2014, where Horizon data was used in evidence. The CCRC is actively reviewing 21 cases, but says any Subpostmaster with a criminal conviction who has not appealed already should seek legal advice before applying to the courts directly to have their conviction quashed.

Neil Hudgell, a solicitor who represented three of the appellants in court today said:

"Their first comment to me was 'what about the others?' There are a sea of other people behind them who are going to get the same outcome in due course. It's just a great vindication.... The tide has turned. The cards are in their hands. And it's for them now to go to the Post Office and ask them to make some sort of reparation for their losses. They can never get back, of course, what they've lost. The Post Office now say they have an open and transparent way of working and the next test of that of that will be to ensure that Chris, Vipin and everybody else who has suffered so badly gets some sort of reflection for that, in an appropriate award of compensation for them."

The historic six: 

Kamran Ashraf – Theft – 28/1/04 – South Western Magistrates Court

Jasvinder Barang – Fraud 3/8/12 – Luton Magistrates Court

Julie Cleife – False representation – 26/10/10 – Basingstoke Magistrates Court

Vipin Patel – Fraud – 3/6/11 – Oxford Magistrates Court

Susan Rudkin – False accounting – 23/3/09 – Burton-upon-Trent Magistrates Court 

Christopher Trousdale – False accounting – 8/3/04 Scarborough Magistrates Court

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Monday, 7 December 2020

Vennells steps down from NHS Trust

Rev Paula Vennells, CBE

Paula Vennells, who was managing director of the Post Office from 2010 to 2012, and its chief executive from 2012 to 2019, has decided to step down from her current job as Chair of Imperial College Healthcare NHS Trust.

Ms Vennells will stay in post until next April. It was, we are told, a personal decision. It comes three months after it was revealed a government minister had written to the Department of Health questioning Vennells' fitness for office.

In a short statement, quietly slipped out on Thursday 3 December, when most people following the Post Office Horizon IT scandal were watching events at the Court of Appeal, Ms Vennells said:

“By the time I leave, I will have been in the position for two years. While I will be very sad to go, it is a personal decision at the right time."

The Trust's chief executive, Professor Tim Orchard said: 

“Paula has made an enormous contribution... Her continued focus on our vision and values, as well as diversity and inclusion, has supported real progress with our organisational culture... We are very grateful for her commitment and expertise and will make the most of her remaining time at the Trust.”

This is the third job Vennells has lost by resigning in the space of twelve months. In March this year she stepped down as a non-executive director of the Cabinet Office.

In June Ms Vennells' left her position on the Church of England's Ethical Investments Advisory Group. An email to a Post Office campaigner from the EIAG stated she had "taken a leave of absence as she engages with the BEIS Select Committee Review." 

The founder of the Justice for Subpostmasters Alliance, Alan Bates, said of Ms Vennells' latest announcement:

"I was utterly amazed they appointed her in the first place, don't they read newspapers or undertake due diligence when they appoint someone?  Her departure seems to be yet another case of her jumping ship before being pushed."

The timing is curious. Lord Arbuthnot, who has long campaigned for Subpostmasters, speculates:

“Can it be a coincidence that shortly after it became clear that the Post Office lied to Parliament, Paula Venells announced she was stepping down from the Health job?”

Lord Arbuthnot
Lord Arbuthnot is referring to the Clarke advice, written in 2013, which was recently revealed at a hearing of the Court of Appeal

The Clarke advice seems to contradict assurances given in 2015 by Ms Vennells and the Post Office to parliament that they had fully investigated all the the Post Office's prosecutions and had so far found no evidence of any miscarriages of justice. 

Lord Falconer, the former Lord Chancellor, described the Clarke advice as a likely "smoking gun" and Andrew Bridgen, an MP who has also campaigned to help Subpostmasters for years said:

"it appears that the post office did knowingly mislead MPs in 2015. It also appears that they were confident hiding behind their lawyers."

I asked Imperial College Healthcare NHS Trust for Ms Vennells resignation letter and more information as to why she stepped down. The trust responded saying they did not wish to add anything to the statement of their website.

I asked Ms Vennells via her lawyers why she stepped down, and whether or not she, or the Post Office, did lie to parliament in 2015. I have so far not received a response.

On 24 December last year, Dr Minh Alexander asked the Care Quality Commission to start a Fit and Proper Person investigation into Paula Vennells' appointment as Chair of the Imperial NHS Trust. At the time Dr Alexander said:

"The Post Office’s behaviour under Paula Vennells’ leadership was not accountable nor open about its computer problems, and the Post Office instead caused serious suffering to scapegoated subpostmasters, some of whom had been prosecuted and jailed. It would be very unsafe for such a corporate culture to be replicated in the NHS, where vulnerable patients would take the brunt of any cover ups."

Dr Minh Alexander
Today Dr Alexander reacted to Ms Vennells' announcement by telling me:

"It is a relief that Paula Vennells will no longer be a part of a safety critical public service where transparency is vital. But it would not be acceptable for the matter to end simply with Paula Vennells riding into the sunset. Those who appointed her, helped to protect her, turned a blind eye and failed to act expeditiously and effectively on the ongoing governance risk posed by her position as Imperial trust chair need to confront what they did. The government needs to ensure a systemic response to reduce the risk of such future abuses of the NHS. Patients and NHS staff should not be treated so disrespectfully again.”

Ms Vennells  remains a non-exec director on the board of Dunelms and Morrisons, and she also holds a position within the Church of England as a non-stipendiary priest within the Bromham Benefice, where she is protected by the Bishop of St Albans.

No one should be rewarded for failure, and no one should be scapegoated for things which aren't their fault. The only inside explanation of what was happening at the Post Office in 2013 after Second Sight completed their interim report comes via evidence submitted by Paula Vennells to the 2020 BEIS inquiry. It was this inquiry the EIAG said she had stepped down to focus on.

Ms Vennells' heavily-lawyered evidence points the finger at Fujitsu for failing to disclose errors with Horizon. On the issue of the Post Office's prosecution mania, she says:

"the Board and I were assured by in-house and external lawyers that the Code for Crown Prosecutors was being followed... Whether the specific evidence was sound in any one case was a matter for their judgment and not mine: it would have been wrong for me to become involved unless of course I became aware of a systemic problem, which I did not."

Cryptically she adds:

"Post Office was also mindful of its disclosure obligations in relation to convictions. When we went through the Scheme [the Post Office's 2013 Complaint and Mediation Scheme], Post Office lawyers considered each and every case in the Scheme where there had been a conviction in order to assess whether there was anything that had emerged from the Scheme which Post Office was obliged to disclose."

Nowhere in her submission does Ms Vennells mention the Clarke advice, or the subsequent Altman General Review or the CK Sift Review, which looked at all the Post Office prosecutions since 2010, not just the ones accepted onto the mediation scheme [for more information on the CK sift review - see my oral submission to the Court of Appeal]. 

Either Ms Vennells was not aware of the Clarke advice, the Altman General Review and the CK Sift Review, or she was aware of them and chose not to tell parliament.

Janet Skinner
Janet Skinner was sent to prison for nine months in 2007 after being prosecuted by the Post Office (see BBC Panorama's Scandal at the Post Office). Janet has been fighting to clear her name for 13 years, and last month the Post Office admitted her prosecution was an abuse of process. Ms Skinner reacted to the NHS announcement by saying:


 

"It is quite a shame that Paula Vennells didn’t provide the same kind of care and support in her previous employment. Is it a case of ‘jump before pushed’ again? No doubt she will profit again with a good pension/severance package; something that us postmasters did not receive."

Tracy Felstead was sent to prison aged just 19 after being prosecuted by the Post Office. She has suffered mental health battles for many years and is still fighting to clear her name. Like Ms Skinner, last month the Post Office admitted her prosecution was an abuse of process. Ms Felstead told me:

"I’m delighted to hear this news, it’s a shame it’s taken so long, I don’t believe Paula Vennells has ever felt any genuine remorse towards those of us who have been affected! If she had she would have done the right thing from the start, I’d like to think the other roles she holds will now go the same way."

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Thursday, 3 December 2020

How not to obtain a court document

The Royal Courts of Justice, looking wet this morning

I thought my application had a shout. I wanted to see if I could:

a) get the Clarke advice 

b) set up some kind of document management process which would allow open justice to function well from a journalistic perspective as well as the court's perspective.

The judges were not biting. Although the Clarke advice was referred to in court, they said its contents were not relevant to any of the hearings so far, so no dice.

It seems an arbitrary interpretation of "referred to" and if any learned folk are reading this and fancy helping me see if I can take this further, please get in touch.

The judges' lack of interest in helping me with b) is going to make my job harder, but not everything can be plain sailing, I suppose.

Here are the links to:

my application

my oral submission,

the approved ruling (due w/c Monday 7 Dec).

[UPDATE: The Daily Telegraph wrote up the court proceedings with a headline which packs a little more punch that mine! - "Court blocks release of 'smoking gun' document in Post Office scandal appeal"]

The rest of the day was taken up by reams of what seemed to me to be circular legal argument on whether or not Flora Page and/or Paul Marshall might be in contempt of court.

The reason this was in issue has been reported here. It too, is about the Clarke advice.

Are Flora Page and Paul Marshall in contempt?

Ms Page and Mr Marshall's (separate) barristers said they weren't, unsurprisingly. 

They argued the Post Office barrister (Brian Altman QC) was raising issues of contempt on 18 November when he shouldn't have been. Or at least, not in the way he did. And as a result the court was led into error.

Paul Marshall was attending via video-link. Flora Page was attending in person. They both remained silent throughout. 

Mr Altman said he was merely drawing the leaking of the Clarke advice to the court's attention and only assisting the court on issues of contempt at the court's request. The Post Office, he said, had no wish to raise a charge of contempt against the two barristers.

The judges wanted to know why they couldn't raise their own charges of contempt if they wanted to, given the circs, and pushed back hard against the idea they were led into error by the Post Office.

This argument lasted for a good four hours. By the time we finished I wasn't sure if we were any closer to understanding anything more than we did when we started. Everyone seemed a little bemused (my blow by blow account was getting quite deranged by mid-afternoon). 

At 4.47pm the Lady and Lord justices returned from a short break to deliver their ruling.

Lord Justice Holroyde said something pretty close to (which means this is not verbatim):

In our view priority must be given for the need for the appeals to proceed without delay involving, as they do, 41 people. For that reason we will give our decision now, even though we will reserve our reasons for a later date.

In our judgment no contempt proceedings can yet be initiated and all that has happened so far has been preliminary to any such initiation. In order to ensure such proceedings are not diverted or delayed, the question of contempt proceedings (whether by the Court and the Post office or the Court by its own initiative) will wait until after the appeals have been concluded.

We considered whether it should be this constitution or another constitution. Although we are far from agreeing with the submissions made by Patrick Lawrence [for Paul Marshall]) or Edward Henry [for Flora Page], all further hearings must be before a different constitution.

So Flora Page (who has now dropped out of representing any appellants) and Paul Marshall (who currently remains counsel for Seema Misra, Tracy Felstead and Janet Skinner) now have the possibility of contempt proceedings hanging over them until April next year, but...

Mr Marshall is free to continue representing Seema Misra, Tracey Felstead and Janet Skinner, and now he can continue to do so:

a) without being distracted by a concurrent contempt hearing, and 

b) he won't have to worry about anything he does for and on behalf of his appellants being picked over by the same justices who may end up charging him with contempt.

Thin gruel, perhaps.

After Lord Justice Holroyde had made the ruling Edward Henry QC stood up and hopefully asked the judges if they would consider a temporary constitution (ie panel of judges) to make a decision on whether the final constitution should be able to take into account what was said by Flora Page and Paul Marshall on 18 November (see here). 

The judges conferred for about a minute and then Lord Justice Holroyde said:

"Thank you Mr Henry. The short answer is no."

I'll post up the full ruling when I get it.

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Oral submission to support the application to receive the Clarke advice

Read out in court at 10.30am on Thu 3 Dec 2020:

IN THE COURT OF APPEAL CRIMINAL DIVISION 

Between:

Post Office 

(respondent)

v

Hamilton and others 

(appellants)

Proposed oral submission to support the Application to receive the Clarke advice and other documents including transcripts under Criminal Procedure Rules 5.8

My Lords and Lady Justice,

1. I am grateful to the Post Office for seeming to indicate it has no realistic objection to journalists being supplied with the Clarke advice, subject to the court’s approval. 


Given the Post Office has submitted a disclosure note to suggest some context to the Clarke Advice, I wonder if I could also give some context to my application for the advice, orally?


——


2. In 2009 the Justice for Subpostmasters Alliance was born. It was founded by Alan Bates. Jo Hamilton was a founding member. Jo Hamilton is the lead appellant in these proceedings. She is also the former constituent of James (now Lord) Arbuthnot.


3. In 2011 James Arbuthnot bumped into the newly-announced Post Office Chairman, Alice Perkins, at an event in Ditchley. Mr Arbuthnot was coordinating a loose group of MPs whose constituents had suffered at the hands of the Post Office. Many of those constituents are among the appellants today.


4. Mr Arbuthnot impressed upon Ms Perkins the importance of getting to the bottom of any problems with the Post Office’s Horizon computer system. Even then it seemed inconceivable that so many honest, upright pillars of the community - Subpostmasters - could have turned to crime in such alarming numbers.


5. Ms Perkins agreed to Mr Arbuthnot’s request, and in 2012, forensic accountants Second Sight were given the task of holistically investigating the Horizon computer system. MPs and the Justice for Subpostmasters Alliance were heavily involved in Second Sight’s appointment.


6. A year later Second Sight’s “Interim Report”, stated as an agreed fact there had been serious bugs in the Horizon IT system. It also noted significant concerns about the Post Office’s investigation function, citing reports of “an asset-recovery or prosecution bias.”


7. Second Sight’s Interim Report was published on the Post Office website on 8 July 2013.


A week later, as we now know, the Post Office received the Clarke Advice. The Clarke Advice raised the prospect that several convictions resulting from Post Office prosecutions might be unsafe. 


(Brian Altman QC: “Mr Gareth Jenkins, an expert witness – in many of the prosecutions may have failed to disclose information, that he was well aware of, that Horizon has bugs and errors in it.”)


8. According to documents filed to the court in response to this application by the Post Office, the Clarke advice begat both the CK Sift Review and the Brian Altman General Review. The CK Sift Review only looked at prosecutions from 2010 onwards, nonetheless it raised the prospect of at least 26 potential miscarriages of justice and caused the immediate cessation of 4 prosecutions. It was concluded in 2014.


9. In February 2015, after the CK Sift Review had concluded, Paula Vennells, Chief Executive of the Post Office, told a parliamentary select committee:


“If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those. As the investigations have gone through, so far we have no evidence of that.”


10. The court is already aware from my written application that Lord Arbuthnot has alleged to the Speakers of both Houses of Parliament, that in its written evidence to the same parliamentary select committee inquiry in 2015, the Post Office lied to Parliament.


[Actual quote: “the Post Office lied to, and was in contempt of, Parliament. The above quoted paragraph of the Post Offices written advice was only one of many instances of this.”]


11. Later in 2015 I co-produced an episode of the BBC’s Panorama programme called Trouble at the Post Office. We had sight of extracts of internal Post Office documents which showed the investigator in Jo Hamilton’s case could find “no evidence” of theft. Despite this, the Post Office subsequently charged her with theft. 


The Post Office refused to be interviewed for Panorama, but in a statement told us remote access to Subpostmaster branch accounts was not possible. 


This untruth was only corrected after being challenged in court in 2017. 


12. Immediately after the Panorama programme was broadcast, the Post Office released a statement saying it “rejects” the “extremely serious allegations” repeated in our programme, saying they were based on “partial, selective and misleading information”.


It added:


All of the allegations… have been exhaustively investigated and tested by the Post Office and various specialists over the past three years or more.  The unsubstantiated claims and theories that continue to be levelled against the Post Office are at odds with the facts, and are constructed from highly partial, selective and inaccurate information.


This, to me, is a deliberate attempt to mislead the public. 


13. All the Postmasters we interviewed for that Panorama programme are appellants in this case. 


14. In the High Court group litigation which ran from 2016 to 2019 Mr Justice Fraser ruled that the Post Office (among other things):


- was attempting to strike out important witness evidence because it might cause bad PR

- was mired in a culture of excessive secrecy bordering on paranoia

- that a Post Office director had attempted to mislead him in court

- that the Horizon system had created discrepancies for which Subpostmasters were held liable

[Bates v Post Office judgments 2, 3, 3 and 6 respectively]


15. It was only after Mr Justice Fraser’s two trial judgments, handed down in 2019, that the Criminal Cases Review Commission - earlier this year - had the necessary evidence to refer the cases before you today to the Court of Appeal. 


16. Alan Bates has been campaigning on behalf of Subpostmasters for 17 years. From 2013 to 2015 he sat on a Working Group with the Post Office and Second Sight looking at alleged historical wrongs against Subpostmasters: his members, many of whom had criminal convictions.


17. Last night he told me that the first he had heard of the Clarke Advice was after the hearing on the 18th of November this year. He had never heard of the Brian Altman Review or the CK Sift Review. 


18. Last night, Lord Arbuthnot, who liaised with senior Post Office executives on a regular basis between 2013 and 2014 told me he too first heard about the Clarke Advice on the 18th of November this year. Until this week, he too had never heard of the Brian Altman Review or the CK Sift Review.


19. Last night Second Sight, who worked hand in glove with the Post Office between 2013 and 2015, told me that throughout the period they were working with the Post Office, even they were not informed of the existence of the Clarke Advice, the Brian Altman Review or the CK Sift Review.


20. All the above have kindly agreed to me relaying this information to the court.


21. This last Saturday afternoon - the 28th of November - I got a call from the former Lord Chancellor, Lord Falconer. After our conversation he sent me a piece for publication. I will quote two lines from it here if I may. 


On the Clarke advice, he says:


on the basis of how it has been described in court by counsel it is a smoking gun.


adding:


“It is blindingly obvious that the Clarke advice should be in the public domain so that everyone can see it and read it and make judgments about the Post Offices conduct.”


22. I submit that the Clarke advice and its concealment for more than seven years is potentially the beating heart of the Post Office Horizon IT scandal, and I respectfully request the court allow it to be made public.


23. Also if I may give notice of a couple of imminent document requests, in the interests of open justice I’d like to ask the Court to consider the release of the Altman General Review AND the CK Sift Review.


Disclosing other documents


24. On the issue of disclosing further documents referred to in court and requesting the disclosure of documents referred to in court I’d like to make the following points.


25. Firstly, the Post Office’s response to my application completely ignores the citing of Cape Intermediate Holdings v Dring.


[(Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, the Supreme Court) - citing principles set out by the Court of Appeal in the Guardian News and Media judgment]


Dring is a ruling made by the Supreme Court which says a court should consider an access request from anyone if:


… the material was placed before it for the case and has been referred to in the courts public proceedings…


even if the material was not read out in court or treated as read out, or not read by the judge during the proceedings; 


…and that where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.


26. Secondly, on Wednesday 18 November during the directions hearing, your Lordship stated:


We think the practical answer to Mr Wallis's enquiry [this was to my first application for access to documents] is to suggest that if a document is mentioned in which he takes a keen interest, he simply apply to the solicitors concerned for a copy of it.  If there be any dispute, perhaps it will have to be referred to the court.”


To which Mr Altman responded:


Thank you, my Lord, it is entirely consistent with the view that we have arrived at.



[Lord Justice Holroyde interrupted to make the point I hadn't read out everything he said on this point which put it in better context. He read the full quote out, which I'll get up as soon as possible. I apologised and said it was not my intention]


27. The Post Office has now, it seems, reversed its opinion and wants the court to deal with all document requests. 


28. If this is accepted by the court, it will cause a substantial amount of unnecessary administration for the court. 


Solution


29. Before the court makes a decision, I wonder if I could suggest a solution… I sat through both trials of the Bates v Post Office group litigation at the High Court and made requests for various documents after they had been referred to in court. 


30. At the end of each day - or if a particularly important-sounding document was being discussed - as soon as I possibly could - I would send an email direct to the claimants’ solicitors. 


31. The claimants’ solicitors would then check with the Post Office solicitors to see if there was a problem disclosing the documents I had requested. Nine times out of ten, the document I had requested would be released promptly and emailed to me. 


32. The court was not required to get involved, there were no disputes and everything worked very well. I remain grateful to the Post Office for operating on that principle in the past and I don’t understand what has changed between then and now - or even, between the 18th of November and now.


33. The solicitors Aria Grace have kindly volunteered to act as a clearing house in this case in the same way that Freeths were in Bates v Post Office. 


34. I propose that after a potentially interesting document is referred to in open court I submit a document request to them. Aria Grace can approach all the other parties to see if there are any objections, and if there are no objections, then I would be grateful if the court would indicate I should be supplied with the document(s) requested.


Supplementary Grounds of Appeal and Further Submissions


34. On the issue of asking the court to order the parties to supply the media with any supplementary grounds of appeal and further submissions which both the Post Office and Mr Steen resist, I think it is possible my application was a little muddled. I will try to clarify:


35. Any Grounds and further written submissions on behalf of the appellants are, I believe, covered by Criminal Practice Directions 5B.12 and 5B.13 - Documents Treated As Read Aloud in Their Entirety - which states:


A document treated by the court as if it had been read aloud in public, though in fact it has been neither read nor summarised aloud, should generally be made available on request…. Documents likely to fall in to this category include:


i. Skeleton arguments

ii. Written submissions


36. I think Grounds of Appeal and any material supplementary to the CCRC’s Statement Of Reasons could fall into this category. 


37. I realise the direction says that they should generally be made available by the court, but I thought if the court wants to invite/order the parties to take on this responsibility, surely that is a more convenient arrangement all round?


Points of contact for the media


38. I honestly thought this was the simplest thing of all to ask for and yet this too is resisted by the Post Office and Mr Stein. 


39. There are a lot of appellants and a lot of different representatives. I have tried to make contact with as many of them as I can in the time I have had available to work on this case. 


40. I realise their corporate identities are a matter of public record and I could contact each firm individually and then try to find the right person who might identify someone who could be a media liaison person.


41. If this were a case where there was one appellant and one legal team and we weren’t being required to social distance it would be no matter to approach them in court, introduce myself and take it from there. 


42. However that is not the case - there are lots of legal teams, there are, rightly, lots of restrictions on movement and face-to-face contact because of infection risk, there are lots of people who are difficult to get hold of because they’re not in their offices etc… 


43. All I am asking, in interests of basic efficiency is for the court to require the parties to provide a contact name and email address to the media so the media can route any requests it might have to the relevant  legal teams.


Transcripts


44. On 26 November after I made my application to the court I received an email from Jennifer Lund, Senior Legal Manager at the Criminal Appeal Office stating: 


“In relation to your requests for transcripts of hearings on 18 & 19 November: I yesterday ascertained that approval from the Court or Registrar was not in fact necessary


If that remains the case going forward, I would be most grateful.


45. A further point on cost: I have spent hundreds of pounds of crowdfunded money buying the transcripts for the hearings on the 18th and 19th of November. Today’s transcript will cost several hundred more. These are vital documents, not just for the reporting of this case, but for the better public understanding of the crucial issues at stake, and for the historians who will be looking at this case for many years to come. I cannot afford to keep paying for the transcripts myself.


46. Current HMCTS advice concerning the effect on open justice of the coronavirus pandemic says:


“Judges may direct that [a] transcript be made available at public expense where appropriate.”


[https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak]


47. The provision of transcripts at the public expense, with permission to publish them, would help offset any reduction in the number of people and journalists being able to attend court on any given day because of restrictions on movement caused by the Covid 19 regulations, the need to shield themselves or relatives, the choice to avoid public transport to avoid infection whilst this exceptional appeal proceedings are ongoing. 


48. Thank you.


Nick Wallis

3 Dec 2020

@nickwallis
www.postofficetrial.com


Notes:


Rulings on the principle of open justice:


In R (On the application of Guardian News and Media Ltd) v City of WestminsterMagistratesCourt ([2012] EWCA Civ 420; [2013] QB 618; [2012] 3 WLR 1343; [2012] EMLR 22; [2012] 3 All ER 551) Lord Justice Toulson started the courts judgment with reference to open justice:

"Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse."


In Scott v Scott [1913] AC 417, 477 Lord Atkinson made the point, at page 463, that the operation of the principle might produce inconvenience, embarrassment discomfort or even injustice for those concerned. He said: 

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."