Thursday, 3 December 2020

Oral submission to support the application to receive the Clarke advice

Read out in court at 10.30am on Thu 3 Dec 2020:

IN THE COURT OF APPEAL CRIMINAL DIVISION 

Between:

Post Office 

(respondent)

v

Hamilton and others 

(appellants)

Proposed oral submission to support the 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 grateful to the Post Office for seeming to indicate it has no realistic objection to journalists being supplied with the Clarke advice, subject to the court’s approval. 


Given the Post Office has submitted a disclosure note to suggest some context to the Clarke Advice, I wonder if I could also give some context to my application for the advice, orally?


——


2. In 2009 the Justice for Subpostmasters Alliance was born. It was founded by Alan Bates. Jo Hamilton was a founding member. Jo Hamilton is the lead appellant in these proceedings. She is also the former constituent of James (now Lord) Arbuthnot.


3. In 2011 James Arbuthnot bumped into the newly-announced Post Office Chairman, Alice Perkins, at an event in Ditchley. Mr Arbuthnot was coordinating a loose group of MPs whose constituents had suffered at the hands of the Post Office. Many of those constituents are among the appellants today.


4. Mr Arbuthnot impressed upon Ms Perkins the importance of getting to the bottom of any problems with the Post Office’s Horizon computer system. Even then it seemed inconceivable that so many honest, upright pillars of the community - Subpostmasters - could have turned to crime in such alarming numbers.


5. Ms Perkins agreed to Mr Arbuthnot’s request, and in 2012, forensic accountants Second Sight were given the task of holistically investigating the Horizon computer system. MPs and the Justice for Subpostmasters Alliance were heavily involved in Second Sight’s appointment.


6. A year later Second Sight’s “Interim Report”, stated as an agreed fact there had been serious bugs in the Horizon IT system. It also noted significant concerns about the Post Office’s investigation function, citing reports of “an asset-recovery or prosecution bias.”


7. Second Sight’s Interim Report was published on the Post Office website on 8 July 2013.


A week later, as we now know, the Post Office received the Clarke Advice. The Clarke Advice raised the prospect that several convictions resulting from Post Office prosecutions might be unsafe. 


(Brian Altman QC: “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.”)


8. According to documents filed to the court in response to this application by the Post Office, the Clarke advice begat both the CK Sift Review and the Brian Altman General Review. The CK Sift Review only looked at prosecutions from 2010 onwards, nonetheless it raised the prospect of at least 26 potential miscarriages of justice and caused the immediate cessation of 4 prosecutions. It was concluded in 2014.


9. In February 2015, after the CK Sift Review had concluded, Paula Vennells, Chief Executive of the Post Office, told a parliamentary select committee:


“If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those. As the investigations have gone through, so far we have no evidence of that.”


10. The court is already aware from my written application that Lord Arbuthnot has alleged to the Speakers of both Houses of Parliament, that in its written evidence to the same parliamentary select committee inquiry in 2015, the Post Office lied to Parliament.


[Actual quote: “the Post Office lied to, and was in contempt of, Parliament. The above quoted paragraph of the Post Offices written advice was only one of many instances of this.”]


11. Later in 2015 I co-produced an episode of the BBC’s Panorama programme called Trouble at the Post Office. We had sight of extracts of internal Post Office documents which showed the investigator in Jo Hamilton’s case could find “no evidence” of theft. Despite this, the Post Office subsequently charged her with theft. 


The Post Office refused to be interviewed for Panorama, but in a statement told us remote access to Subpostmaster branch accounts was not possible. 


This untruth was only corrected after being challenged in court in 2017. 


12. Immediately after the Panorama programme was broadcast, the Post Office released a statement saying it “rejects” the “extremely serious allegations” repeated in our programme, saying they were based on “partial, selective and misleading information”.


It added:


All of the allegations… have been exhaustively investigated and tested by the Post Office and various specialists over the past three years or more.  The unsubstantiated claims and theories that continue to be levelled against the Post Office are at odds with the facts, and are constructed from highly partial, selective and inaccurate information.


This, to me, is a deliberate attempt to mislead the public. 


13. All the Postmasters we interviewed for that Panorama programme are appellants in this case. 


14. In the High Court group litigation which ran from 2016 to 2019 Mr Justice Fraser ruled that the Post Office (among other things):


- was attempting to strike out important witness evidence because it might cause bad PR

- was mired in a culture of excessive secrecy bordering on paranoia

- that a Post Office director had attempted to mislead him in court

- that the Horizon system had created discrepancies for which Subpostmasters were held liable

[Bates v Post Office judgments 2, 3, 3 and 6 respectively]


15. It was only after Mr Justice Fraser’s two trial judgments, handed down in 2019, that the Criminal Cases Review Commission - earlier this year - had the necessary evidence to refer the cases before you today to the Court of Appeal. 


16. Alan Bates has been campaigning on behalf of Subpostmasters for 17 years. From 2013 to 2015 he sat on a Working Group with the Post Office and Second Sight looking at alleged historical wrongs against Subpostmasters: his members, many of whom had criminal convictions.


17. Last night he told me that the first he had heard of the Clarke Advice was after the hearing on the 18th of November this year. He had never heard of the Brian Altman Review or the CK Sift Review. 


18. Last night, Lord Arbuthnot, who liaised with senior Post Office executives on a regular basis between 2013 and 2014 told me he too first heard about the Clarke Advice on the 18th of November this year. Until this week, he too had never heard of the Brian Altman Review or the CK Sift Review.


19. Last night Second Sight, who worked hand in glove with the Post Office between 2013 and 2015, told me that throughout the period they were working with the Post Office, even they were not informed of the existence of the Clarke Advice, the Brian Altman Review or the CK Sift Review.


20. All the above have kindly agreed to me relaying this information to the court.


21. This last Saturday afternoon - the 28th of November - I got a call from the former Lord Chancellor, Lord Falconer. After our conversation he sent me a piece for publication. I will quote two lines from it here if I may. 


On the Clarke advice, he says:


on the basis of how it has been described in court by counsel it is a smoking gun.


adding:


“It is blindingly obvious that the Clarke advice should be in the public domain so that everyone can see it and read it and make judgments about the Post Offices conduct.”


22. I submit that the Clarke advice and its concealment for more than seven years is potentially the beating heart of the Post Office Horizon IT scandal, and I respectfully request the court allow it to be made public.


23. Also if I may give notice of a couple of imminent document requests, in the interests of open justice I’d like to ask the Court to consider the release of the Altman General Review AND the CK Sift Review.


Disclosing other documents


24. On the issue of disclosing further documents referred to in court and requesting the disclosure of documents referred to in court I’d like to make the following points.


25. Firstly, the Post Office’s response to my application completely ignores the citing of Cape Intermediate Holdings v Dring.


[(Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, the Supreme Court) - citing principles set out by the Court of Appeal in the Guardian News and Media judgment]


Dring is a ruling made by the Supreme Court which says a court should consider an access request from anyone if:


… the material was placed before it for the case and has been referred to in the courts 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.


26. Secondly, on Wednesday 18 November during the directions hearing, your Lordship stated:


We think the practical answer to Mr Wallis's enquiry [this was to my first application for access to documents] is to suggest that if a document is mentioned in which he takes a keen interest, he simply apply to the solicitors concerned for a copy of it.  If there be any dispute, perhaps it will have to be referred to the court.”


To which Mr Altman responded:


Thank you, my Lord, it is entirely consistent with the view that we have arrived at.



[Lord Justice Holroyde interrupted to make the point I hadn't read out everything he said on this point which put it in better context. He read the full quote out, which I'll get up as soon as possible. I apologised and said it was not my intention]


27. The Post Office has now, it seems, reversed its opinion and wants the court to deal with all document requests. 


28. If this is accepted by the court, it will cause a substantial amount of unnecessary administration for the court. 


Solution


29. Before the court makes a decision, I wonder if I could suggest a solution… I sat through both trials of the Bates v Post Office group litigation at the High Court and made requests for various documents after they had been referred to in court. 


30. At the end of each day - or if a particularly important-sounding document was being discussed - as soon as I possibly could - I would send an email direct to the claimants’ solicitors. 


31. The claimants’ solicitors would then check with the Post Office solicitors to see if there was a problem disclosing the documents I had requested. Nine times out of ten, the document I had requested would be released promptly and emailed to me. 


32. The court was not required to get involved, there were no disputes and everything worked very well. I remain grateful to the Post Office for operating on that principle in the past and I don’t understand what has changed between then and now - or even, between the 18th of November and now.


33. The solicitors Aria Grace have kindly volunteered to act as a clearing house in this case in the same way that Freeths were in Bates v Post Office. 


34. I propose that after a potentially interesting document is referred to in open court I submit a document request to them. Aria Grace can approach all the other parties to see if there are any objections, and if there are no objections, then I would be grateful if the court would indicate I should be supplied with the document(s) requested.


Supplementary Grounds of Appeal and Further Submissions


34. On the issue of asking the court to order the parties to supply the media with any supplementary grounds of appeal and further submissions which both the Post Office and Mr Steen resist, I think it is possible my application was a little muddled. I will try to clarify:


35. Any Grounds and further written submissions on behalf of the appellants are, I believe, covered by Criminal Practice Directions 5B.12 and 5B.13 - Documents Treated As Read Aloud in Their Entirety - which states:


A document treated by the court as if it had been read aloud in public, though in fact it has been neither read nor summarised aloud, should generally be made available on request…. Documents likely to fall in to this category include:


i. Skeleton arguments

ii. Written submissions


36. I think Grounds of Appeal and any material supplementary to the CCRC’s Statement Of Reasons could fall into this category. 


37. I realise the direction says that they should generally be made available by the court, but I thought if the court wants to invite/order the parties to take on this responsibility, surely that is a more convenient arrangement all round?


Points of contact for the media


38. I honestly thought this was the simplest thing of all to ask for and yet this too is resisted by the Post Office and Mr Stein. 


39. There are a lot of appellants and a lot of different representatives. I have tried to make contact with as many of them as I can in the time I have had available to work on this case. 


40. I realise their corporate identities are a matter of public record and I could contact each firm individually and then try to find the right person who might identify someone who could be a media liaison person.


41. If this were a case where there was one appellant and one legal team and we weren’t being required to social distance it would be no matter to approach them in court, introduce myself and take it from there. 


42. However that is not the case - there are lots of legal teams, there are, rightly, lots of restrictions on movement and face-to-face contact because of infection risk, there are lots of people who are difficult to get hold of because they’re not in their offices etc… 


43. All I am asking, in interests of basic efficiency is for the court to require the parties to provide a contact name and email address to the media so the media can route any requests it might have to the relevant  legal teams.


Transcripts


44. On 26 November after I made my application to the court I received an email from Jennifer Lund, Senior Legal Manager at the Criminal Appeal Office stating: 


“In relation to your requests for transcripts of hearings on 18 & 19 November: I yesterday ascertained that approval from the Court or Registrar was not in fact necessary


If that remains the case going forward, I would be most grateful.


45. A further point on cost: I have spent hundreds of pounds of crowdfunded money buying the transcripts for the hearings on the 18th and 19th of November. Today’s transcript will cost several hundred more. These are vital documents, not just for the reporting of this case, but for the better public understanding of the crucial issues at stake, and for the historians who will be looking at this case for many years to come. I cannot afford to keep paying for the transcripts myself.


46. Current HMCTS advice concerning the effect on open justice of the coronavirus pandemic says:


“Judges may direct that [a] transcript be made available at public expense where appropriate.”


[https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak]


47. The provision of transcripts at the public expense, with permission to publish them, would help offset any reduction in the number of people and journalists being able to attend court on any given day because of restrictions on movement caused by the Covid 19 regulations, the need to shield themselves or relatives, the choice to avoid public transport to avoid infection whilst this exceptional appeal proceedings are ongoing. 


48. Thank you.


Nick Wallis

3 Dec 2020

@nickwallis
www.postofficetrial.com


Notes:


Rulings on the principle of open justice:


In R (On the application of Guardian News and Media Ltd) v City of WestminsterMagistratesCourt ([2012] EWCA Civ 420; [2013] QB 618; [2012] 3 WLR 1343; [2012] EMLR 22; [2012] 3 All ER 551) Lord Justice Toulson started the courts judgment with reference to open justice:

"Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse."


In Scott v Scott [1913] AC 417, 477 Lord Atkinson made the point, at page 463, that the operation of the principle might produce inconvenience, embarrassment discomfort or even injustice for those concerned. He said: 

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."