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This is part one of a contemporaneous write-up of the first Court of Appeal hearing involving the 47 Subpostmasters referred by the Criminal Cases Review Commission earlier this year. Part 2 is called "Fujitsu staff under criminal investigation named"
Before proceedings got properly underway this morning, Brian Altman, QC for the Post Office, got to his feet and told the three presiding judges that a journalist called Lewis Page, a freelance reporter working for the Daily Telegraph, had been in contact with the Post Office press office. Mr Page has written about the Post Office Horizon scandal before.
Mr Page had apparently indicated to the Post Office that he had sight of a document written in 2013 by a barrister called Simon Clarke. The document (according to my understanding of what Mr Altman told the court today) was about Gareth Jenkins, former Fujitsu Horizon Architect and purveyor of expert evidence at Seema Misra's trial, among others.
According to Mr Altman, Mr Clarke's advice was that Gareth Jenkins had given incorrect evidence to the courts in criminal trials involving Subpostmasters.
Mr Altman said the leaking of this document to a journalist before it had been discussed in open court was serious - a potential breach of the disclosure act and contempt of court. He read out a chronology of events - how and when the document was disclosed by the Post Office and to whom. He pointed out the familial link between Lewis Page and Flora Page, a barrister involved in the proceedings, acting for three of the appellant Subpostmasters.
Ms Page stood up and admitted to the court she had given her brother the Simon Clarke document. This, she explained, was for practical reasons: Mr Page was unable to attend court because he had been informed it was full, so Ms Page had supplied the document to him in advance of it being raised in court. Ms Page told the justices that her brother had no intention of using the document were it not raised in court, but she apologised unreservedly and recognised she should have waited before giving it to him.
The justices took a very dim view of this activity. The senior judge, Lord Justice Holroyde, suggested there would likely be consequences for Ms Page, potentially both legally and professionally. She was told to present herself to the court at 10.15am tomorrow.
Lord Justice Holroyde also asked Ms Page to tell her brother to return/destroy and certainly undertake never to publish any of the document’s contents. This assurance was given.
Later on, Paul Marshall, Ms Page’s senior, raised the Simon Clarke document again. He said it was wholly unclear whether or not it had been disclosed to the Criminal Cases Review Commission, as if it had, it would have been extraordinary that it would not be mentioned by the CCRC in its Statement of Reasons - the key document referring the 47 Postmaster cases to the Court of Appeal. Mr Marshall said the Simon Clarke document had only been disclosed to his instructing solicitors, Aria Grace Law, after they had raised a query about a different document disclosed to them in October this year.
There is clearly something hugely important in the Simon Clarke document. If, as I think I inferred from what Mr Altman said this morning, it contains information, written in 2013, that evidence given by Gareth Jenkins in the course of prosecuting Subpostmasters was wrong, it could have massive implications for the safety of those prosecutions.
And of equal importance - if that is what the document contains - why wasn’t Simon Clarke’s advice disclosed to the courts and the prosecuted Subpostmasters’ legal teams years ago? Why did the Post Office sit on it until last week?
I have asked the Post Office to supply me with the Simon Clarke 2013 document under Criminal Procedure Rules (5.8), now it has been raised in open court.
[UPDATE: My application failed - read why here.]
A further Court of Appeal hearing to discuss the CCRC's statement that the prosecution of the appellant Subpostmasters were an "affront to the public conscience" will take place on 17 Dec. The full hearing to quash or uphold the appellants' convictions has been scheduled for the week beginning 22 March 2021 and will last four or five days.
Read part 2: "Fujitsu staff under criminal investigation named"
Read today's tweets from Court 4 of the Royal Courts of Justice in a beautifully-curated single web page, here.
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