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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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."

Application to receive the Clarke Advice part 2

This was made in a written submission to the court on 26 Nov 2020. It is accompanied by an oral submission which was made on 3 Dec 2020.

 IN THE COURT OF APPEAL CRIMINAL DIVISION 

Between:

Post Office 

(respondent)

v

Hamilton and others 

(appellants)

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 an NUJ-accredited freelance reporter with a valid press card. My work on the Post Office has been published by the BBC, Private Eye Magazine, and the Daily Mail.

In 2018 I set up a website to report the Bates v Post Office High Court group litigation called www.postofficetrial.com. The website continues to document the fallout from the litigation. I am also using it to document the current proceedings at the Court of Appeal.

2. As set out below, there is a considerable public interest (over and above the usual public interest in ensuring open justice) in the circumstances of these proceedings. 

The goal of this application is to ensure that the public is able to properly follow this important trial, and thereby to secure the ends of open justice.

First application

3. As the court is aware, at 9.05pm on Tuesday 17 November 2020 I made an application  under Criminal Procedure Rules 5.8 to receive:

- the CCRC Statement of Reasons, 

- all the appellantsGrounds of Appeal,  

- any supplementary submissions filed to the Court, and

- all the Post Offices responses filed to the Court and transcripts of proceedings. 

I explained I would use the documents to better aid the media’s reporting of this and subsequent Court of Appeal hearings, inform the many interested parties who cannot attend court either in person or remotely, and better aid public understanding of the issues at stake.

4. As part of the first application I also asked the court (given the number of legal firms involved in proceedings) to:

- mandate all the parties to supply me with a named contact the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases 

- indicate that any requested documentation/evidence should be supplied to the media in the interests of open justice unless the parties or the court felt there was an overriding reason why it shouldn’t.

5. At 9.20pm on 17 Nov I sent a copy of my application to the Post Office press office and the solicitors I had contact details for. I told the recipients of my covering email that I was happy to discuss my application before the hearing began. 

6. At 10.30am on 18 Nov the court dealt with my application without an order, making it clear that once Mr Altman QC had read a few paragraphs from the CCRC’s Statement of Reasons it should be supplied to the media.

7. The court also indicated that the media should request documents from the relevant parties, and any dispute over supplying them could be referred back to the court for resolution.

8. The issues of the parties supplying named media liaison contacts and transcripts was not addressed.

Background to the second application

10. Immediately after the court had dealt with my first application, the 2013 Clarke advice was raised in court, first by Brian Altman QC and later by Paul Marshall, a barrister representing three Subpostmasters.

Brian Altmann QC said: 

It [the advice] said that Dr Jennings – this is actually 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.”

11. At 12.36pm the Post Office press office sent me the CCRC Statement of Reasons.

12. At 1.13pm I applied to the Post Office press office for the Clarke advice and the Post Office documents outlining their response(s) to the CCRC’s Statement of Reasons and any subsequent Grounds.

13. At 2.04pm I received two Respondent’s Notices from the Post Office.

14. At 7.50pm I published a report on my website called: “What’s in the 2013 Simon Clarke document?” https://www.postofficetrial.com/2020/11/whats-in-2013-simon-clark-document.html 

15. On Thursday 19 November at 12.38pm I chased the Post Office for a response to my application for the Clarke advice and was told at 2.48pm the same day that the Post Office was still considering my request. 

16. At 9.14am on Friday 20 November I received an email from Lord Arbuthnot. 

Lord Arbuthnot forwarded to me a letter he had sent that morning to the Business Minister Lord Callanan, which stated:

On Wednesday 18 November the Court of Appeal considered a piece of advice written by a barrister, Simon Clarke, in 2013 for the Post Office.  According to Brian Altman QC, acting for the Post Office, this advice - which was apparently to the effect that the evidence of Gareth Jenkins (a former senior Fujitsu Horizon engineer) was wrong - was disclosed to Aria Grace solicitors (acting for three appellants) by Peters and Peters solicitors (acting for the Post Office) last week.  As you know, the judge in the Horizon litigation referred Mr Jenkins’evidence to the DPP.

In 2013 I and other MPs were in full flow of the discussion with Paula Vennells and Alice Perkins about the unsafe nature of the Horizon convictions.  We should have been told about this document, but I have not yet seen it.  Please will you immediately send me a copy, and place it in the library of both Houses?

17. On Friday 20 November at 9.59am I received the following from the Post Office press office:

“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 under CPR Rule 5.8(7)-(8).”

18. At 3.28pm on the same day, I made a further appeal to the Post Office to release the Clarke advice, seeking clarification as to whether it was unwilling to release the advice or  felt legally unable to.

19. At 5.16pm on Friday 20 November I emailed an EX107 form to Jennifer Lund, Senior Legal Manager at the Criminal Appeal Office, seeking permission to buy the transcripts of Wednesday’s and Thursday’s hearings.

20. At 6.01pm Ms Lund kindly supplied me with the ruling given on 19 November and asked if I still wanted full transcripts of both days. I confirmed that I did (acknowledging I understood this would be at my own expense) and she told me she would forward my EX107 application form to the relevant office.

21. At 9.40pm on 20 Nov, Nick Vamos, a partner at Peters and Peters solicitors, emailed me on behalf of the Post Office to say:

POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice. Therefore, your application to see the document will need to be decided by the Court.”

22. At 5.11pm on Saturday 21 November I received another email from Lord Arbuthnot forwarding a second letter he had sent at 4.45pm on 21 Nov to Lord Callanan’s office, this time cc-ing the Lord Speaker and the Speaker of the House of Commons. In it, Lord Arbuthnot stated:

On 3rd February 2015 the BIS Select Committee took evidence in their inquiry into the Post Office Mediation scheme.  Part of that evidence was a written submission from the Post Office, although they also received oral evidence from amongst others the Chief Executive of the Post Office.  Paragraph 11 of that written evidence (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/business-innovation-and-skills-committee/post-office-mediation/written/17827.pdf ) reads as follows:

At the start of the Scheme, both Post Office and the Justice for Subpostmasters Alliance made clear that mediation cannot overturn a conviction. This can only be done through established Court procedures. Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant. It takes its responsibilities in this regard very seriously and Post Offices investigations have been carried out with this important duty firmly in mind. Post Office writes to everyone who has suggested they have or have seen evidence that a  conviction is unsafe and asked them to disclose this so that it can be acted on. To date no such evidence has been provided.”

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 Offices written advice was only one of many instances of this. I should be grateful if you would consider my request for the immediate publication of the advice in the light of this.”

23. This seemed to me to be an extremely serious allegation. In the light of it I emailed the Post Office press office and Mr Vamos on 22 November asking the Post Office:

a) to respond to allegations it had lied to parliament,

b) to reconsider its position on releasing the Clarke advice so that we could all see why so many people considered it important.

24. On 23 November I was told again by Mr Vamos that the Post Office would not be releasing the Clarke advice. I also received a comment from the Post Office press office re Lord Arbuthnot’s allegation. It was: “It is not for the Post Office to comment on direct correspondence between Parliamentarians.

25. On 23 November I published a piece called: “Peer accuses Post Office of lying” (https://www.postofficetrial.com/2020/11/peer-accuses-post-office-of-lying.html).

26. On 24 November I asked Ms Lund if I had been given permission by the court to receive transcripts of the hearings on 18 and 19 Nov. Ms Lund told me the same day she had not yet heard back from the relevant office and would ask a colleague to chase it on my behalf.

27. As of 10.30am on Thu 26 November I do not have the Clarke advice and I do not have the transcripts of the 18/19 Nov hearings (nor do I know if I will get permission to buy them).

I also don’t know if I am going to receive any supplementary Grounds or additional material from the some of the appellants solicitors because I don’t know if such Grounds exist, and in some cases I don’t know who to ask to find out if they are willing to supply them. 

28. I am hoping the following application will at least help provide me with some of the documentation I am looking for and offer the media and parties a clear, court-approved path for requesting and receiving documentation going forward.

Application to the Court to Receive the Clarke advice and other documents

29. Part 5B.1 of the Criminal Practice Directions 2015 (updated May 2020) states:

Open justice, as Lord Justice Toulson recently reiterated in the case of R(Guardian News and Media Ltd) v City of Westminster MagistratesCourt [2012] EWCA Civ 420, [2013] QB 618, is a principle at the heart of our system of justice and vital to the rule of law. There are exceptions but these have to be justified by some even more important principle.

30. Part 5B.9 states:

The court will consider each application on its own merits. The burden of justifying a request for access rests on the applicant. Considerations to be taken into account will include:

… v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a public watchdog, by reporting the proceedings effectively;”

31. Part 5B.26 states:

Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media… then there is a greater presumption in favour of providing the requested material in recognition of the pressrole as public watchdogin a democratic society (Observer and Guardian v United Kingdom (1992) 14 E.H.R.R. 153, Times November 27, 1991). The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to

32. On the above and following basis I would be most grateful if the court would order the parties to release the Clarke advice.

33. The Clarke advice was attached to a submission to the court made by Aria Grace Law on 16 November 2020, it should therefore qualify for release under Rule 5.8, CPD 5B.12 and 5B.13

34. It is also a document which has been referred to in open court. Cape Intermediate Holdings Ltd 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 - said the court should consider an access request 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 (pars 37, 38 and 44 of the Cape judgment)

35. My request as regards the Clarke advice is not only to ensure fair and accurate reporting of the appeal proceedings, but to enable

the exposure of ‘matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case” [Harman v Secretary of State for the Home Department [1983] 1 AC 280 (HL), 316]. 

36. The Clarke advice has also become a matter of significant public interest. As well as its relevance to what has happened to the former Subpostmasters whose lives were blighted by prosecutions, it is potentially relevant to:

a) an ongoing criminal investigation,  

b) a complaint to the Speakers of both Houses of Parliament

c) potential contempt proceedings at the Court of Appeal

37. With regard to point 36 a), the court has already (on 18 Nov) asked the media to be mindful of its "general need on their part to avoid reporting anything which may prejudice the ongoing investigation or any charges which may flow from it.” 

The media has been so mindful, and can be guided or restricted by the court in this respect as regards what should be published. Any charges in that investigation do not appear to be imminent. If they are not, the law would not normally permit a reporting restriction to be placed on publication of what is in the Clarke advice document to prevent such prejudice. 

The Law Commission, in its consultation paper 209, Contempt of Court, defined imminent proceedings (citing Attorney General v Sport Newspapers and others [1992] 1 All ER 503) as being proceedings “virtually certain to take place”. If this is the stage of any relevant criminal proceedings, I am not aware of that.

38. With regard to point 36 c), making the document public now will have little or no bearing on any contempt proceedings. Indeed, from the correspondence I have had, referred to above, it seems that were it not for the contempt claim made by the Post Office on Wed 18 November, it is likely the Clarke advice would have already been supplied to the media and made public. 

39. Contempt proceedings regarding the circulation of the Clarke advice should not be permitted to have a bearing on its release to those who are legitimately requesting it, especially when considering the interests of advancing the open justice principle, including enabling the media to discharge its role”. 

40. It is acknowledged the Post Office has made no attempt to ask the court to impose reporting restrictions on the Clarke advice, thus far. In direct correspondence with me it has already said:

“POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice.”


41. The document in question will throw light on the decision-making process at the top of the Post Office. It will reveal how important information available to senior Post Office staff was dealt with at the time of the Post Office Mediation Scheme in 2015, and the High Court group action, Bates and others v Post Office Ltd.

42. It will also help inform the independent public inquiry, chaired by retired judge Sir Wyn Williams, who has promised a “thorough and rigorous” examination of the evidence. 

Ministers have said the aim of the inquiry is so “we can ensure the right lessons have been learnt, and establish what must change to make sure this cannot happen again”. [Gov.uk, https://www.gov.uk/government/news/retired-high-court-judge-to-lead-post-office-horizon-it-inquiry, accessed: 25/11/2020)] 

43. Taken as a whole, the Clarke advice seems to be an exceptionally important document to the wider public discourse, and it is in the courts gift to give, especially when considering the interests of advancing the open justice principle, including enabling the media to discharge its role”.

Other documents and information

43. I would also be grateful if the court would:

a) order all the appellants’ solicitors who haven’t yet done so, to release to the media any additional Grounds or supplementary material they have lodged with the court to support their clients’ cases (see CPD 5B.12 and 5B.13).

b) order all parties (who haven’t done so already) to provide the media with a named contact representatives of the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases.

c) give the media permission to buy or receive transcripts of the 18 and 19 November hearings, and transcripts of all subsequent hearings related to this case  going forward (ref CPD 5B.29)

d) allow the media to receive any written and/or orders/rulings made by the court once approved (ref CrimPR 5.8(4)(a) and CPD 5B.31).

44. Given the strong public interest in open justice, the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during hearings [Cape Intermediate Holdings Ltd v Dring [2019] 3 WLR 429, endorsing R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618.]. 

45. Where an applicant seeks such documents for a serious journalistic purpose, the Courts should assist rather than impede such a request, unless some strong contrary argument can be made out.

46. This default approach applies strongly in this application. There is a strong public interest in reporting these proceedings in full. Transcrips, documentary evidence and written arguments will give the public an insight into the case put forward by the appellants and help to ensure better understanding of the issues in these proceedings. Presenting this information, effectively, to the public will help to capture the public’s attention and thereby ensure public awareness and scrutiny of these proceedings. 

45. Responsible journalists, and their editors, know best how to present material in a way that will interest the public and so help the public to absorb the information. Where a journalist credibly asserts that they are hampered in their ability to report as fully as they would have wished, the court should be cautious about making what would really be an editorial judgment about the adequacy of material already available to a media organisation. This reflects Lord Rodger’s warning: “Judges are not newspaper editors” [Guardian News and Media Ltd [2010] 2 AC 697, per Lord Rodger, par 63]

46. These are long-awaited proceedings, which carry the utmost importance for the appellants, who in some cases have waited more than a decade for the chance to clear their name. 

47. In addition, the Post Office is wholly-owned by the taxpayer, has been supported by £2.4billion of public money in the last decade, and which has a Government official on its board. [UK Government Investments website, https://www.ukgi.org.uk/workcs/case-study-post-office-limited/ , (accessed: 25/11/2020)] 

48. Open justice can assist in ensuring that the Court process works effectively [Scott v Scott [1913] AC 417, Lord Shaw, 477]. It makes uninformed and inaccurate comment about Court proceedings less likely [R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966, per Lord Woolf MR, at 977].  It can result in evidence becoming available which would not otherwise become available [ibid].  

49. I intend to be in court on 30 November to live-tweet and then write up the scheduled hearing. I am very much hoping HMCTS staff will be able to find a space for me in the well of the court so I am properly able to hear what is going on. Either way I will be available if the court wishes to me to clarify anything with regard to this application. 

I remain your humble and respectful servant, 

Nick Wallis

26 November 2020

Nick Wallis

@nickwallis
www.postofficetrial.com