This was made in a written submission to the court on 26 Nov 2020. It is accompanied by an oral submission which was made on 3 Dec 2020.
IN THE COURT OF APPEAL CRIMINAL DIVISION
Hamilton and others
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 an NUJ-accredited freelance reporter with a valid press card. My work on the Post Office has been published by the BBC, Private Eye Magazine, and the Daily Mail.
In 2018 I set up a website to report the Bates v Post Office High Court group litigation called www.postofficetrial.com. The website continues to document the fallout from the litigation. I am also using it to document the current proceedings at the Court of Appeal.
2. As set out below, there is a considerable public interest (over and above the usual public interest in ensuring open justice) in the circumstances of these proceedings.
The goal of this application is to ensure that the public is able to properly follow this important trial, and thereby to secure the ends of open justice.
3. As the court is aware, at 9.05pm on Tuesday 17 November 2020 I made an application under Criminal Procedure Rules 5.8 to receive:
- the CCRC Statement of Reasons,
- all the appellants’ Grounds of Appeal,
- any supplementary submissions filed to the Court, and
- all the Post Office’s responses filed to the Court and transcripts of proceedings.
I explained I would use the documents to better aid the media’s reporting of this and subsequent Court of Appeal hearings, inform the many interested parties who cannot attend court either in person or remotely, and better aid public understanding of the issues at stake.
4. As part of the first application I also asked the court (given the number of legal firms involved in proceedings) to:
- mandate all the parties to supply me with a named contact the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases
- indicate that any requested documentation/evidence should be supplied to the media in the interests of open justice unless the parties or the court felt there was an overriding reason why it shouldn’t.
5. At 9.20pm on 17 Nov I sent a copy of my application to the Post Office press office and the solicitors I had contact details for. I told the recipients of my covering email that I was happy to discuss my application before the hearing began.
6. At 10.30am on 18 Nov the court dealt with my application without an order, making it clear that once Mr Altman QC had read a few paragraphs from the CCRC’s Statement of Reasons it should be supplied to the media.
7. The court also indicated that the media should request documents from the relevant parties, and any dispute over supplying them could be referred back to the court for resolution.
8. The issues of the parties supplying named media liaison contacts and transcripts was not addressed.
Background to the second application
10. Immediately after the court had dealt with my first application, the 2013 Clarke advice was raised in court, first by Brian Altman QC and later by Paul Marshall, a barrister representing three Subpostmasters.
Brian Altmann QC said:
“It [the advice] said that Dr Jennings – this is actually 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.”
11. At 12.36pm the Post Office press office sent me the CCRC Statement of Reasons.
12. At 1.13pm I applied to the Post Office press office for the Clarke advice and the Post Office documents outlining their response(s) to the CCRC’s Statement of Reasons and any subsequent Grounds.
13. At 2.04pm I received two Respondent’s Notices from the Post Office.
14. At 7.50pm I published a report on my website called: “What’s in the 2013 Simon Clarke document?” https://www.postofficetrial.com/2020/11/whats-in-2013-simon-clark-document.html
15. On Thursday 19 November at 12.38pm I chased the Post Office for a response to my application for the Clarke advice and was told at 2.48pm the same day that the Post Office was still considering my request.
16. At 9.14am on Friday 20 November I received an email from Lord Arbuthnot.
Lord Arbuthnot forwarded to me a letter he had sent that morning to the Business Minister Lord Callanan, which stated:
“On Wednesday 18 November the Court of Appeal considered a piece of advice written by a barrister, Simon Clarke, in 2013 for the Post Office. According to Brian Altman QC, acting for the Post Office, this advice - which was apparently to the effect that the evidence of Gareth Jenkins (a former senior Fujitsu Horizon engineer) was wrong - was disclosed to Aria Grace solicitors (acting for three appellants) by Peters and Peters solicitors (acting for the Post Office) last week. As you know, the judge in the Horizon litigation referred Mr Jenkins’’evidence to the DPP.
In 2013 I and other MPs were in full flow of the discussion with Paula Vennells and Alice Perkins about the unsafe nature of the Horizon convictions. We should have been told about this document, but I have not yet seen it. Please will you immediately send me a copy, and place it in the library of both Houses?”
17. On Friday 20 November at 9.59am I received the following from the Post Office press office:
“we will not be sharing the document with the media at this time. As the Court indicated on 18 November, you may make an application to the Court for access to the document under CPR Rule 5.8(7)-(8).”
18. At 3.28pm on the same day, I made a further appeal to the Post Office to release the Clarke advice, seeking clarification as to whether it was unwilling to release the advice or felt legally unable to.
19. At 5.16pm on Friday 20 November I emailed an EX107 form to Jennifer Lund, Senior Legal Manager at the Criminal Appeal Office, seeking permission to buy the transcripts of Wednesday’s and Thursday’s hearings.
20. At 6.01pm Ms Lund kindly supplied me with the ruling given on 19 November and asked if I still wanted full transcripts of both days. I confirmed that I did (acknowledging I understood this would be at my own expense) and she told me she would forward my EX107 application form to the relevant office.
21. At 9.40pm on 20 Nov, Nick Vamos, a partner at Peters and Peters solicitors, emailed me on behalf of the Post Office to say:
“POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice. Therefore, your application to see the document will need to be decided by the Court.”
22. At 5.11pm on Saturday 21 November I received another email from Lord Arbuthnot forwarding a second letter he had sent at 4.45pm on 21 Nov to Lord Callanan’s office, this time cc-ing the Lord Speaker and the Speaker of the House of Commons. In it, Lord Arbuthnot stated:
“On 3rd February 2015 the BIS Select Committee took evidence in their inquiry into the Post Office Mediation scheme. Part of that evidence was a written submission from the Post Office, although they also received oral evidence from amongst others the Chief Executive of the Post Office. Paragraph 11 of that written evidence (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/business-innovation-and-skills-committee/post-office-mediation/written/17827.pdf ) reads as follows:
“At the start of the Scheme, both Post Office and the Justice for Subpostmasters Alliance made clear that mediation cannot overturn a conviction. This can only be done through established Court procedures. Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant. It takes its responsibilities in this regard very seriously and Post Office’s investigations have been carried out with this important duty firmly in mind. Post Office writes to everyone who has suggested they have or have seen evidence that a conviction is unsafe and asked them to disclose this so that it can be acted on. To date no such evidence has been provided.”
I suggest that the contemptibly late disclosure of the advice of Mr Clarke – something that should have been in the public domain in 2013 – establishes that the Post Office lied to, and was in contempt of, Parliament. The above quoted paragraph of the Post Office’s written advice was only one of many instances of this. I should be grateful if you would consider my request for the immediate publication of the advice in the light of this.”
23. This seemed to me to be an extremely serious allegation. In the light of it I emailed the Post Office press office and Mr Vamos on 22 November asking the Post Office:
a) to respond to allegations it had lied to parliament,
b) to reconsider its position on releasing the Clarke advice so that we could all see why so many people considered it important.
24. On 23 November I was told again by Mr Vamos that the Post Office would not be releasing the Clarke advice. I also received a comment from the Post Office press office re Lord Arbuthnot’s allegation. It was: “It is not for the Post Office to comment on direct correspondence between Parliamentarians.”
25. On 23 November I published a piece called: “Peer accuses Post Office of lying” (https://www.postofficetrial.com/2020/11/peer-accuses-post-office-of-lying.html).
26. On 24 November I asked Ms Lund if I had been given permission by the court to receive transcripts of the hearings on 18 and 19 Nov. Ms Lund told me the same day she had not yet heard back from the relevant office and would ask a colleague to chase it on my behalf.
27. As of 10.30am on Thu 26 November I do not have the Clarke advice and I do not have the transcripts of the 18/19 Nov hearings (nor do I know if I will get permission to buy them).
I also don’t know if I am going to receive any supplementary Grounds or additional material from the some of the appellants solicitors because I don’t know if such Grounds exist, and in some cases I don’t know who to ask to find out if they are willing to supply them.
28. I am hoping the following application will at least help provide me with some of the documentation I am looking for and offer the media and parties a clear, court-approved path for requesting and receiving documentation going forward.
Application to the Court to Receive the Clarke advice and other documents
29. Part 5B.1 of the Criminal Practice Directions 2015 (updated May 2020) states:
“Open justice, as Lord Justice Toulson recently re‐iterated in the case of R(Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618, is a ‘principle at the heart of our system of justice and vital to the rule of law’. There are exceptions but these ‘have to be justified by some even more important principle.’”
30. Part 5B.9 states:
“The court will consider each application on its own merits. The burden of justifying a request for access rests on the applicant. Considerations to be taken into account will include:
… v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a ‘public watchdog’, by reporting the proceedings effectively;”
31. Part 5B.26 states:
“Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media… then there is a greater presumption in favour of providing the requested material in recognition of the press’ role as ‘public watchdog’ in a democratic society (Observer and Guardian v United Kingdom (1992) 14 E.H.R.R. 153, Times November 27, 1991). The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to”
32. On the above and following basis I would be most grateful if the court would order the parties to release the Clarke advice.
33. The Clarke advice was attached to a submission to the court made by Aria Grace Law on 16 November 2020, it should therefore qualify for release under Rule 5.8, CPD 5B.12 and 5B.13
34. It is also a document which has been referred to in open court. Cape Intermediate Holdings Ltd v Dring [Asbestos Victims Support Groups Forum UK)  UKSC 38, the Supreme Court] - citing principles set out by the Court of Appeal in the Guardian News and Media judgment - said the court should consider an access request if the material was placed before it for the case and has been referred to in the court’s 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 (pars 37, 38 and 44 of the Cape judgment)
35. My request as regards the Clarke advice is not only to ensure fair and accurate reporting of the appeal proceedings, but to enable
“the exposure of ‘matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case” [Harman v Secretary of State for the Home Department  1 AC 280 (HL), 316].
36. The Clarke advice has also become a matter of significant public interest. As well as its relevance to what has happened to the former Subpostmasters whose lives were blighted by prosecutions, it is potentially relevant to:
a) an ongoing criminal investigation,
b) a complaint to the Speakers of both Houses of Parliament
c) potential contempt proceedings at the Court of Appeal
37. With regard to point 36 a), the court has already (on 18 Nov) asked the media to be mindful of its "general need on their part to avoid reporting anything which may prejudice the ongoing investigation or any charges which may flow from it.”
The media has been so mindful, and can be guided or restricted by the court in this respect as regards what should be published. Any charges in that investigation do not appear to be imminent. If they are not, the law would not normally permit a reporting restriction to be placed on publication of what is in the Clarke advice document to prevent such prejudice.
The Law Commission, in its consultation paper 209, Contempt of Court, defined imminent proceedings (citing Attorney General v Sport Newspapers and others  1 All ER 503) as being proceedings “virtually certain to take place”. If this is the stage of any relevant criminal proceedings, I am not aware of that.
38. With regard to point 36 c), making the document public now will have little or no bearing on any contempt proceedings. Indeed, from the correspondence I have had, referred to above, it seems that were it not for the contempt claim made by the Post Office on Wed 18 November, it is likely the Clarke advice would have already been supplied to the media and made public.
39. Contempt proceedings regarding the circulation of the Clarke advice should not be permitted to have a bearing on its release to those who are legitimately requesting it, especially when considering the interests of “advancing the open justice principle, including enabling the media to discharge its role”.
40. It is acknowledged the Post Office has made no attempt to ask the court to impose reporting restrictions on the Clarke advice, thus far. In direct correspondence with me it has already said:
“POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice.”
41. The document in question will throw light on the decision-making process at the top of the Post Office. It will reveal how important information available to senior Post Office staff was dealt with at the time of the Post Office Mediation Scheme in 2015, and the High Court group action, Bates and others v Post Office Ltd.
42. It will also help inform the independent public inquiry, chaired by retired judge Sir Wyn Williams, who has promised a “thorough and rigorous” examination of the evidence.
Ministers have said the aim of the inquiry is so “we can ensure the right lessons have been learnt, and establish what must change to make sure this cannot happen again”. [Gov.uk, https://www.gov.uk/government/news/retired-high-court-judge-to-lead-post-office-horizon-it-inquiry, accessed: 25/11/2020)]
43. Taken as a whole, the Clarke advice seems to be an exceptionally important document to the wider public discourse, and it is in the court’s gift to give, especially when considering the interests of “advancing the open justice principle, including enabling the media to discharge its role”.
Other documents and information
43. I would also be grateful if the court would:
a) order all the appellants’ solicitors who haven’t yet done so, to release to the media any additional Grounds or supplementary material they have lodged with the court to support their clients’ cases (see CPD 5B.12 and 5B.13).
b) order all parties (who haven’t done so already) to provide the media with a named contact representatives of the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases.
c) give the media permission to buy or receive transcripts of the 18 and 19 November hearings, and transcripts of all subsequent hearings related to this case going forward (ref CPD 5B.29)
d) allow the media to receive any written and/or orders/rulings made by the court once approved (ref CrimPR 5.8(4)(a) and CPD 5B.31).
44. Given the strong public interest in open justice, the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during hearings [Cape Intermediate Holdings Ltd v Dring  3 WLR 429, endorsing R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  QB 618.].
45. Where an applicant seeks such documents for a serious journalistic purpose, the Courts should assist rather than impede such a request, unless some strong contrary argument can be made out.
46. This default approach applies strongly in this application. There is a strong public interest in reporting these proceedings in full. Transcrips, documentary evidence and written arguments will give the public an insight into the case put forward by the appellants and help to ensure better understanding of the issues in these proceedings. Presenting this information, effectively, to the public will help to capture the public’s attention and thereby ensure public awareness and scrutiny of these proceedings.
45. Responsible journalists, and their editors, know best how to present material in a way that will interest the public and so help the public to absorb the information. Where a journalist credibly asserts that they are hampered in their ability to report as fully as they would have wished, the court should be cautious about making what would really be an editorial judgment about the adequacy of material already available to a media organisation. This reflects Lord Rodger’s warning: “Judges are not newspaper editors” [Guardian News and Media Ltd  2 AC 697, per Lord Rodger, par 63]
46. These are long-awaited proceedings, which carry the utmost importance for the appellants, who in some cases have waited more than a decade for the chance to clear their name.
47. In addition, the Post Office is wholly-owned by the taxpayer, has been supported by £2.4billion of public money in the last decade, and which has a Government official on its board. [UK Government Investments website, https://www.ukgi.org.uk/workcs/case-study-post-office-limited/ , (accessed: 25/11/2020)]
48. Open justice can assist in ensuring that the Court process works effectively [Scott v Scott  AC 417, Lord Shaw, 477]. It makes uninformed and inaccurate comment about Court proceedings less likely [R v Legal Aid Board, ex parte Kaim Todner  QB 966, per Lord Woolf MR, at 977]. It can result in evidence becoming available which would not otherwise become available [ibid].
49. I intend to be in court on 30 November to live-tweet and then write up the scheduled hearing. I am very much hoping HMCTS staff will be able to find a space for me in the well of the court so I am properly able to hear what is going on. Either way I will be available if the court wishes to me to clarify anything with regard to this application.
I remain your humble and respectful servant,
26 November 2020