Friday, January 3, 2020

Horizon trial judgment is handed down - inc transcript

Sir Peter Fraser
The handing down of the Horizon trial judgment on 16 dec 2019 was expected to be a damp squib. After all, the parties had settled five days previously.

On the day, it all went off. You can read my report here.

The following piece is mainly about ensuring the judge's exact comments in court are made available to all - although, as you'll see, there appears to be a spelling mistake in the transcript on a crucial word!

The most interesting bit came at the end of the hearing. Having handed down the judgment and dealt with housekeeping, Sir Peter Fraser gave the following announcement:
"Based on the knowledge that I have gained both from conducting the trial and writing the Horizon Issues judgment, I have very grave concerns regarding the voracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system. These previous proceedings include the High Court in at least one civil case brought by the Post Office against a sub- postmaster and the Crown Court in a greater number of criminal cases, also brought by the Post Office against sub-postmasters and sub-postmistresses.
Max Hill QC
After very careful consideration, I have therefore decided, in the interests of justice, to send the papers in the case to the Director of Public Prosecutions, Mr Max Hill QC, so he may consider whether the matter to which I have referred should be the subject of any prosecution."
Sir Peter went on:
"It will be entirely a matter for the DPP what, if anything, he does in respect of this referral... I wish to make it clear that the specific subject to which I will drawing the specific attention of the DPP relates to the evidence on previous occasions of Fujitsu employees."
Notwithstanding the likely homonymical typo in the transcript (I think his Lordship was understood to say "veracity" rather than "voracity"), Fujitsu, and the employees who gave evidence against Lee Castleton, Seema Misra et al are now firmly in the firing line.

If you want to know exactly why the judge felt the need to pass on a folder to the DPP I would recommend you have a crack at the long, but very readable judgment.

In it, the judge finds Andy Dunks, Fujitsu's IT Security Analyst "expressly sought to mislead" him.

He says Fujitsu's Head of Post Office Application Support, Stephen Parker, effectively lied to the court, by choosing "specifically to give the impression in his 1st witness statement that Fujitsu did not have the power (the word Mr Parker expressly chose) to inject transactions into the counter at branches, even though he knew that it did."

And the judge finds in conclusion that Fujitsu:
"do not... appear to me to have properly and fully investigated... myriad problems, nor did Fujitsu categorise... incidents correctly. They also seem to have moved away, in their investigations, from concluding that there were any issues with the software wherever it was possible for them to do so, regardless of evidence to the contrary."
If the DPP is minded to do anything, it might not be long before Inspector Knacker starts knocking on a few doors.

So, for completeness, here is a full transcript of the final hearing, which took place in Court 26 of the High Court's Rolls Building, starting at 2.30pm on Monday 16 Dec 2019. Enjoy:

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION
No. QB-2016-004710
Rolls Building Fetter Lane London, EC4A 1NL
Monday, 16 December 2019
BETWEEN:

Claimants

BATES & ORS

- and -

Defendant

POST OFFICE LTD
Before:
MR JUSTICE FRASER

MR P. GREEN QC (instructed by Freeths LLP) appeared on behalf of the Claimants.
MR O. DRAPER (instructed by Womble Bond Dickinson (UK) LLP) appeared on behalf of the Defendant.

MR JUSTICE FRASER: There are three items on the agenda for this afternoon. The first is handing down the judgment. 

This was distributed in draft on 28 November 2019 to the parties’ legal advisors and two members of the steering committee, but it was under embargo until now. The usual embargo in this case was slightly amended so that the two mediators involved in assisting the parties settle the litigation were also permitted to see the draft judgment. That judgment is to be handed now, which means its contents become public, so I am going to ask my learned clerk to do that. 

There are a number of printed copies. There are ten in folders; there are eight printed copies not in folders. The judgment has three appendices, one is the technical appendix, one is a glossary and one is a summary of the findings on the numbers of bugs, defects and errors that I have found to exist within the Horizon system. 

If anyone who is in court would like a copy and they put their email address on the three forms which have been provided for that purpose, or they give my learned clerk their email address, they will be emailed a copy straightaway after this hearing. 

The judgment is also going to be placed on the Bailii website which is at www.bailii.org with the neutral citation [2019] EWHC 3408 QB. It will also be placed on the judicial website straight after this hearing at www.judiciary.uk. If anybody does go onto the Bailii website and search for it under the name Bates v Post Office, they should just remember that it is the sixth judgment, so it is Bates v Post Office (No 6). That is the first item. 

The next item, Mr Green.

MR GREEN: My Lord, the parties, as your Lordship know, agreed a settlement to be 
incorporated in a Tomlin order to be made by your Lordship, subject to your Lordship’s approval, of course. We have revised it in the light of your Lordship’s observations about the malicious prosecution claims and the provision made for those. 

The structure is that the settlement does not embrace the malicious prosecution claims to which that paragraph refers, which are those of convicted claimants, and that is why there is a provision in paragraph 3 that neither the stay provided for in paragraph 1 nor the discontinuance provided for in paragraph 2 prejudice the right of any convicted claimant to bring an individual claim for malicious prosecution. 

What we have added, your Lordship will see, that last sentence, which is to the extent that convicted claimants require permission under CPR rule 38.7 to make another individual claim for malicious prosecution following discontinuance under paragraph 2 above. Such permission is granted. 

MR JUSTICE FRASER: Yes. Now, that provision – I will just check this with Mr Draper in a moment – as I understand the operation of it is so that if there is any claimant who is currently subject to the group litigation wishes to advance a claim for malicious prosecution---- 

MR GREEN: Exactly.

MR JUSTICE FRASER: --that is not caught by the settlement.

MR GREEN: Exactly.

MR JUSTICE FRASER: Because that is a claim that is actually included on the claim form. 

MR GREEN: Your Lordship is absolutely right. Exactly.

MR JUSTICE FRASER: Right. And the discontinuance does not yet occur until an application 
is made under paragraph 2.

MR GREEN: Exactly right. So, it is a Tomlin order until the application for discontinuance is 
made and granted, and then it comes to an end.

MR JUSTICE FRASER: Right, I am just going to ensure that Mr Draper is on board; I am sure 
he is. Mr Draper, I see you appear for the Post Office today.

MR DRAPER: I do appear for the Post Office. My Lord, yes, the provision there is just to 
ensure there is no possible argument about abuse of process if there is, if you like, what 
might be contended to be a second claim in relation to malicious prosecution.

MR JUSTICE FRASER: That is why I raised the point because I think the intention of the 
parties is that any such claimant in that situation issues a fresh claim form. Is that right? 

MR DRAPER: My Lord, yes.

MR JUSTICE FRASER: But for the moment this action is not yet discontinued in any event. It 
is just subject to a stay under the Tomlin order.

MR DRAPER: That is right.

MR JUSTICE FRASER: Right. Thank you very much. I am going to make that order. I have 
signed one copy of the Tomlin order. I am going to hand that down now, as well as return the confidential schedules that were lodged at the same time. I will give those to Mr Green. So far as the parties are concerned, is there anything else today? 

MR DRAPER: My Lord, no. 

MR JUSTICE FRASER: Right. There is one more thing from the court’s point of view. By signing the consent order that I have just signed, today is the final substantive hearing day of the Post Office Group litigation. This means that I am therefore effectively no longer the managing judge. 

What I have to say now does not have any effect upon that function in any event and I will still be able to make any further procedural order in January 2020 if one is sought, as anticipated in paragraph 2 of the Tomlin order, for the withdrawal of the group litigation order. However, I am making these comments now in open court at the conclusion of the Horizon Issues trial in the interests of open justice and transparency. 

The Horizon Issues trial involved very detailed analysis of the Horizon computer system.
In the year of its inception in 2000 up to 2018, in order to address the Horizon issues, both the evidence and the judgment that I have just handed down considered in great detail the contents of contemporaneous documents within Fujitsu and the Post Office dealing with the operation of the Horizon system generally, but particularly in respect of the known existence of Fujitsu of bugs, errors and defects in Horizon. 

Based on the knowledge that I have gained both from conducting the trial and writing the Horizon Issues judgment, I have very grave concerns regarding the voracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system. These previous proceedings include the High Court in at least one civil case brought by the Post Office against a sub- postmaster and the Crown Court in a greater number of criminal cases, also brought by the Post Office against sub-postmasters and sub-postmistresses. 

After very careful consideration, I have therefore decided, in the interests of justice, to send the papers in the case to the Director of Public Prosecutions, Mr Max Hill QC, so he may consider whether the matter to which I have referred should be the subject of any prosecution. 

In arriving at that decision I have considered the relevant authorities, including:
  • R v Patel [2016] EWCA Crim 2001, which was a decision in the Court of Appeal Criminal Division of Lord Justice Simon and Mr Justice Hickinbottom, as he then was, at paragraph 84; 
  • Hussein v William Hill Group [2004] EWHC 208 QB, a decision of Mrs Justice Hallett, as she then was, at paragraph 50; 
  • and a number of others.
It will be entirely a matter for the DPP what, if anything, he does in respect of this referral. The contents of the letter that I send him will be confidential, although I will copy it to the parties in this litigation through their solicitors. 

I wish to make it clear that the specific subject to which I will drawing the specific attention of the DPP relates to the evidence on previous occasions of Fujitsu employees. 

This matter is entirely separate from any aspects of the process currently underway at the Criminal Cases Review Commission in respect of claimants who were convicted. Paragraph 66 of the judgment that I have just handed down explains why this court has no involvement in the process underway at the Criminal Cases Review Commission. 

Mr Green, Mr Draper, nothing else?

MR GREEN: Nothing further, my Lord.

MR JUSTICE FRASER: Mr Draper?

MR DRAPER: No observations, my Lord.

MR GREEN: My Lord, may we thank you on behalf of all parties for the hard work that has 
gone into several thousand pages of judgments.

MR JUSTICE FRASER: Yes. My learned clerk did actually do a word count on all six of the 
judgments and it is just slightly fewer than War and Peace, but not by very many. Thank you all very much, and if I could wish everyone a very happy Christmas.

[Judge rises]

*************************
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