Tuesday 22 December 2020

Paul Marshall's "resignation" letter to the Court of Appeal

Paul Marshall
On 15 December, Paul Marshall (pictured left) stood down from representing Seema Misra, Tracy Felstead and Janet Skinner at the Court of Appeal.

He faces possible contempt of court charges over passing a document known as the "Clarke Advice" to the police.

I reported Mr Marshall's decision to step down at the time. Now I have the full text of the letter he wrote to the court explaining his decision. It makes for troubling reading. 

In his letter, Mr Marshall states he has been made subject to an order of the court: 
"In proceedings to which I am not a party, in the course of a hearing at which I was not present, in the course of a hearing of which I was given no notice that any issue in connection with my conduct was to be raised... The first notice of which was given to me 4 days after the order was made, where the document founding criticism of my conduct by the court was provided to me 11 days after the hearing, and then only upon my specific request."
Right then

The night before a Court of Appeal hearing on 18 November 2020 Mr Marshall sent the Clarke advice to the Metropolitan Police. His junior, Flora Page, passed it to a journalist.

The next morning, Brian Altman, QC for the Post Office, said the advice (written in 2013) was alleged to contain evidence a senior Fujitsu engineer:
"relied upon in many of the prosecutions [of Subpostmasters] had failed in many cases to disclose information he was well aware of that Horizon had bugs and errors in it."

This goes to the heart of the Post Office scandal, because in Feb 2015 (nearly two years later), the then chief executive of the Post Office, Paula Vennells, told a parliamentary inquiry:

"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 a result of what was said about the Clarke advice in court on 18 November, Lord Arbuthnot told the government it was clear the Post Office had "lied" to parliament in 2015, and the former Lord Chancellor, Lord Falconer, told me it was likely a "smoking gun".

Shortly after the existence of the Clarke advice was made public, Ms Vennells announced she was resigning from her job chairing an NHS Trust.

Nonetheless, the judges took a dim view of the document's disclosure outside Court of Appeal proceedings, and began the process of considering contempt charges against Mr Marshall and Ms Page.

Open justice?

On 26 November I applied to the court to be supplied the Clarke advice on the basis that it was of significant public interest. 

On 3 December, my application was refused. Nearly three weeks later I am still waiting for the approved ruling which explains why.

In his letter of 15 December Paul Marshall tells the Court of Appeal he feels "inhibited from continuing fearlessly to represent my clients before this court." 

I am publishing a redacted version of the letter below. Acting out of an abundance of caution, I am trying to measure the public interest against the Court of Appeal's unwillingness to allow the Clarke advice and its contents to be made public. I hope, by removing references to what the Clarke advice contains beyond that which is already in the public domain, I have struck the right balance.

More importantly, I hope the redacted elements do not detract from the power of Mr Marshall's argument. Something has gone terribly wrong when a barrister feels unable to represent his clients in one of the highest courts in the land.

If you can't see the letter embedded below, click on the link. You may need to sign up to Scrib'd to read it, which is free. 

Paul Marshall letter to the... by Nick Wallis

Earlier this week I told Mr Marshall of my intention to publish his letter and asked if he had anything to say about it. He declined to comment, other than to ask me to make clear that I had not received the letter I am publishing from him.

I asked the court if it had anything to say in response to Mr Marshall's letter. I understand it is not in a position to reply, given it is now the Christmas holidays. 

I asked if Mr Altman had anything to say about Mr Marshall's letter, given the criticisms which are levelled at him. I was told by lawyers acting for the Post Office it would not appropriate for Mr Altman to comment, however:
 "that should not... be taken as an acceptance of anything said in Mr Marshall’s letter". 

On 18 November, Mr Altman said the Post Office only brought their knowledge of the leaking of the Clarke advice to the court:

"because we regard it as our professional duty to ds so.  We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves."
On 17 December, the three appellants in question, Tracy Felstead, Janet Skinner and Seema Misra, won the right to have their prosecutions by the Post Office considered as a possible affront to the public conscience. It's a shame they have been deprived of their legal representatives in doing so.


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