Thursday 17 December 2020

Victory for Subpostmasters, defeat for press freedom

l-r Janet Skinner, Tracy Felstead and Seema Misra

After a day of legal argument at the Court of Appeal, Lord Justice Holroyde and his fellow judges have decided to allow Seema Misra, Tracy Felstead and Janet Skinner to argue their prosecutions were an affront to the public conscience and should never have happened.

Earlier this year, in the light of the Bates v Post Office civil litigation, the Criminal Cases Review Commission referred 47 convictions to the courts, arguing there was abuse of process by the Post Office as prosecutor, and the convictions may well be unsafe. 

The CCRC split the abuse of process into two limbs, or categories, or grounds (all three terms were used liberally and interchangeably in court today). The first limb contends that a lack of disclosure of important information (eg Horizon fault log data) by the Post Office led to unsafe convictions. The CCRC contended that had that information been put into the hands of a defence team it would have altered the way they defended the case and/or advised their client. 

The second limb was about the prosecutions being an "affront to the public conscience" - ie that the Post Office knew it should not be prosecuting, but did so anyway (eg for asset recovery purposes, or despite knowing its Horizon data was unreliable).

Of the 47 convictions referred to the courts by the CCRC, the Post Office only accepts there was an affront to the public conscience in 4 of them (including Noel Thomas, who featured in the very first Computer Weekly investigation into the Post Office Horizon IT scandal back in 2009). 

The Post Office also resists any abuse of process with three of the referrals.

From the remaining 40, six convictions have already been overturned at Southwark Crown Court.* That happened last Friday, so suddenly that Lord Justice Holroyde today said he had no idea the hearing was due to take place until he found the convictions had been quashed, via twitter. As the only journalist live-tweeting in court that day, I am delighted to have been of service.  

That leaves us with 34 Subpostmasters who the Post Office agree should have their convictions overturned on grounds of lack of disclosure, but not on the issue of affront to the public conscience. It was their cases and their cases alone which were the subject of proceedings today.

All the limbs

There were three main schools of thought amongst the parties in court today:

a) the Post Office and a couple of appellants, whose view was that consideration of limb 2 was unnecessary,

b) the bulk of appellants, who essentially didn't mind either way, and so long as things didn't drag on too long, they would like the judges to consider limb 2 of their appeal if limb 2 considerations were allowed,

c) Seema, Tracy and Janet, who were adamant that consideration of limb 2 was essential for justice to be done.

To cut a long story short: Seema, Tracy and Janet won. The judges decided they will be able to argue that their prosecutions were an affront to the public conscience. 

In fact it was something of a cake-ist victory for all the appellants, as the judges ruled:

a) second limb arguments could be heard within the time frame already allotted by the court for the full appeal hearing, which runs for a week from 22 March 2021. 

b) any appellant who wished to have category 2 abuse considered in their specific case could apply to do so.

Seema, Janet and Tracy's case was put to the court by Lisa Busch QC, the late substitute for Paul Marshall, who stood down from representing his clients earlier this week. As Ms Busch made clear, she was using a lot of the work, and the skeleton arguments Mr Marshall had submitted to the court shortly before his departure.

Speaking of skeleton arguments

Whilst the appellant Subpostmasters will justifiably be celebrating tonight, journalists are not. Tom Witherow from the Daily Mail made an application to receive the documents released to me by the court, which the Post Office generated in response to my application to receive the Clarke advice. He developed his argument carefully and cogently with an oral submission on a videolink.

The Post Office previously told me they felt I could not publish the documents Mr Witherow was requesting, and when Brian Altman QC for the Post Office told the court he had no object to Mr Witherow receiving the documents I was a bit confused. It turns out Mr Altman was quite happy for Mr Witherow to receive the documents, but that he should not be allowed to publish them. This, whilst consistent with the Post Office's position, is.... frustrating. 

Mr Altman also, with my advance agreement, pointed out to the judge that I was seeking the skeleton arguments of all parties.

The judge asked me to make a submission if I wished to. I stood up and said I had asked all the parties for their skeleton arguments for today's hearing, that I had not received them and that this was very odd as it is usually a formality for any journalist to receive skeleton arguments from the parties once proceedings are underway without any need for applying to the court.

After rising to consider their position, the judges came back and told us they had decided to decline both mine and Tom's application. I was a little bemused as I was not aware I had made an application to the court on this occasion. And I am more than a little concerned, as it means the Post Office, whilst professing helpfulness, openness and transparency, has successfully (whether inadvertently or not) managed to keep documents out of the public domain which, were it not for the bizarre sequence of events which began on 17 November, would be published as a matter of course, without remark.

That said, the Post Office made it clear to the judges they had no objection to Mr Witherow seeing the documents about the Clarke advice, nor to me receiving the skeleton arguments. And I have been told that the Post Office have also kindly agreed to pay for and circulate transcripts of every hearing from 3 Dec onwards (including events at Southwark Crown Court) in the interests of aiding reporting and for the public record.

I still haven't received the approved written judgment against my second application from 3 December. 

If you would like to read a blow-by-blow account of what happened today, you are more than welcome to, read my collated live tweets, on this web page.

* The six appellants were separated out into a crown court because the original prosecutions were at magistrates' courts.


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