Monday 23 November 2020

Peer accuses Post Office of lying

Baron Arbuthnot of Edrom

The fallout from Wednesday's Court of Appeal hearing continues. Lord Arbuthnot (pictured above) has written to the business minister in the Lords, the Lord Speaker and the Speaker of the House of Commons alleging the Post Office has "lied" to parliament.

Lord Arbuthnot bases his accusation on what he knows about advice given to the Post Office in 2013, and written evidence given by the Post Office to the Business, Innovation and Skills select committee in 2015. The 2013 advice was written by a barrister called Simon Clarke and was discussed in court last Wednesday.

In 2015, the Post Office told a BIS select committee inquiry:

"Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant…. To date no such evidence has been provided.”

Lord Arbuthnot thinks the 2013 Clarke advice contradicts the above statement, or as he puts it:

"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.”

This is about as serious as it gets. Parliamentarians, as a rule, simply do not accuse people or organisations of lying. Lord Arbuthnot just has. But is he right? Well that all depends on what is in the Clarke advice.

The Clarke advice surfaces

It appears the first anyone outside the Post Office knew about the Clarke advice was on 12 November this year, when it was disclosed to solicitors working for three convicted Subpostmasters - Seema Misra, Tracy Felstead and Janet Skinner.

A barrister, Flora Page, working pro bono for the Subpostmasters, passed the Clarke advice to her brother Lewis Page, a journalist. Lewis Page told the Post Office via email, the night before Wednesday's hearing, he had seen it. The Post Office sent Mr Page's email to their legal team. 

Wednesday's hearing at the Court of Appeal therefore began with Brian Altman, QC for the Post Office, explaining to the three judges why Ms Page's actions might be in contempt of court. 

The judges ordered a special hearing on Thursday, during which it became apparent Paul Marshall, the senior barrister on the same legal team, had separately passed the Clarke advice to the Metropolitan police. 

I did not attend Thursday's hearing, but I have been sent the order made by the court which notes:

"it is, in our judgment, for the court to determine in due course whether there be here conduct amounting to a contempt of court, and, if so, what if any sanction may be appropriate."

The judges then ask the Post Office to:

"assist the court by drafting a provisional formulation of the charge or charges which the court should call upon Ms Page to consider"


"it is, in our view, necessary that Mr Marshall must now assist the court in relation to the email received today [from the Met]... Mr Marshall should, as soon as practicable, assist the court with these matters."

Paul Marshall

So that's the latest situation with regards to the lawyers who leaked the Clarke advice. It looks as if the Post Office's QC, Brian Altman, is drawing up a charge of civil contempt, to which Ms Page and possibly Mr Marshall may be invited to plead guilty or not guilty.

I have asked Mr Marshall, Ms Page and Mr Page for comment. I have not heard from Ms Page and both Mr Page and Mr Marshall do not wish to say anything publicly at the moment.

Reporting restrictions on the Clarke advice

Before proceedings finished on Thursday, a further discussion was had about the merits of imposing reporting restrictions on the content of the Clarke advice. It went as follows:

MR ALTMAN [for the Post Office]:  The merits are, my Lord, that there is likely to be said much more about the content of that advice, the reasons why it was passed to Mr Page as it was in the circumstances we are now alive to, and secondly, in relation to Mr Marshall, why on two occasions he passed it to the Metropolitan Police.   

Therefore, one cannot exclude the possibility that part of the argument that the court is likely to hear, if not evidence, is the relevance and importance of the contents of the document.  So if that is to be protected ‑‑ and your Lordship will recall me arguing a little earlier that it is not a given that that document would become public; one would have to look at the Criminal Practice Direction ‑‑ then it needs to be protected due to its obvious sensitivity through privilege.

LORD JUSTICE HOLROYDE:  Thank you. Mr Bentwood, do you make any submissions? 

MR BENTWOOD [for Flora Page]:  My Lord, yes.  My Lord will appreciate that yesterday's hearings were being covered by the press.  


MR JUSTICE PICKEN:  And indeed by Mr Nick Wallis, who live-tweeted much of that which took place and I have since read.


MR BENTWOOD:  So to the extent that the argument is already in the public domain ‑‑ much of it already is ‑‑ there need be, in my respectful submission, no reporting restrictions in relation to today's hearing.  

In relation to future hearings, in my respectful submission that would be a decision properly to be made after your Lordships have heard from the various members of the press who, although not present here today, I know have expressed considerable interest in transparency about that which takes place here.

MR JUSTICE PICKEN:  Your submission is that if Mr Altman is right, and the content of the document needs to be looked at, then that is the stage at which to think about press restrictions rather than now? 

MR BENTWOOD:  Yes, indeed: not to prejudge the issue of restrictions until the courts have properly been addressed as to it.  No doubt when that time comes the court can make an interim restriction, which can be revisited depending upon how the argument develops.

MRS JUSTICE FARBEY:  So you are saying this hearing today is no different in kind to yesterday's? 

MR BENTWOOD:  It is not.  Indeed, the substance of the document has not been ventilated today in any way near the level of detail at all; indeed, I have not read the document itself as yet.

After a little more discussion, the judges rose to consider reporting restrictions, and returned to make the following ruling: 

LORD JUSTICE HOLROYDE:  We do not think any more has been said about the content of the document today than was previously in the public domain, little though that is.  We accept Mr Bentwood's submission that the time to think about reporting restrictions will be if and when a stage is reached where the meat of the content of the Clarke advice is more in focus in the court's consideration.  We therefore do not impose any reporting restrictions in relation to today's hearing.
On Friday, after my second request for the Clarke advice, I received the following from the Post Office:
"At the Court of Appeal hearing yesterday morning, 19 November, the Court noted (without criticism) that some of the content of the document was already in the public domain and there was no current need for reporting restrictions. However, the Court also said that it would keep the need for reporting restrictions under review if and when more of the content of the document was referred to in Court. Therefore, 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."
I asked the Post Office for a comment on Lord Arbuthnot's allegation that it lied to parliament. The Post Office says: "It is not for the Post Office to comment on direct correspondence between Parliamentarians."

Abuse of process

The reason we are at the Court of Appeal is because the Post Office engaged in abuse of process (and then spent tens of millions of pounds of taxpayers money at the High Court claiming the campaigning Subpostmasters case "lacks merit"). 

The Post Office says it is now a reformed operation, yet you could argue it appears to be doing two of the things which got it into this mess in the first place:

a) trying to keep important information from the public gaze (see Fraser J's second judgment in Bates v Post Office),
b) using its vast resources and legal firepower to set in motion events which may end up crushing peoples' livelihoods.

That said, the circumstances which arose last week are very different, and on Wednesday, Brian Altman made it clear the Post Office was only bringing the leaking of the Clarke advice to the attention of the court because it believed it had a duty to do so. 

I am very much hoping that if the Clarke advice does prove Lord Arbuthnot's contention that the Post Office lied to parliament, there becomes an over-riding public interest in knowing what it says.


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