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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