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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