Saturday 23 January 2021

CCRC letter to the Court of Appeal about the Clarke Advice

The Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office Horizon scandal, lay undisclosed by the Post Office for more than seven years. It was written in July 2013. 

In it, the barrister Simon Clarke noted that evidence given during the prosecution of Subpostmasters by the Fujitsu engineer Gareth Jenkins was not the complete picture. Mr Jenkins is currently under investigation by the Metropolitan Police.

The Post Office sat on this document until 12 November 2020. 

In response to a query raised by the legal team working for Tracy Felstead, Janet Skinner and Seema Misra, the Clarke Advice was handed over to all the current appellants' legal teams. The contents of the Clarke Advice were sent to the Metropolitan Police by the barrister Paul Marshall and the barrister Flora Page sent it to a journalist.

The Post Office became aware of Ms Page's actions and raised them in court on 18 November 2020. As a consequence of this, the Metropolitan Police alerted the court to its receipt of the document on 19 November and destroyed it.

The same day in court Mr Marshall expressed his concern that the Criminal Cases Review Commission might not have seen Clarke Advice, basing that concern on the lack of any reference to it in the CCRC's Statement of Reasons, which led to the appeal proceedings we had all gathered to witness.

Shortly afterward the Sally Berlin, Director of Casework Operations at the CCRC sent the letter below to the Court of Appeal stating:

"We take the view that the contents of the Clarke advice are of potential relevance to ongoing CCRC reviews of Post Office cases. For that reason we have today written to Post Office Limited (‘POL’) - via their criminal law representatives, Peters and Peters Solicitors LLP - enclosing a statutory notice, issued under S17 Criminal Appeal Act 1995, formally requiring POL to provide us with the Clarke Advice. For the avoidance of any doubt, we also consider that the advice was of potential relevance to Post Office cases which have already been referred to the Court of Appeal."


"as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and perverting the course of justice in respect of particular expert witnesses, one of whom is the subject of the Clarke advice. We understand that the parties may wish to consider whether the Clarke advice – either in whole or in part - ought to be disclosed to the MPS investigation team. You may already have that in hand."

In her letter below, Ms Berlin states she wasn't sure if the CCRC had been disclosed the Clarke Advice in its five years of looking into Subpostmaster cases. It has subsequently been confirmed that the Post Office did not disclose the Advice, though it had given the CCRC the Altman review, which apparently refers extensively to the Clarke Advice.

I made a written application to the Court of Appeal to be disclosed the Clarke Advice, and even though the Post Office didn't seem that bothered in its written response, the Court of Appeal denied it to me. You can read the Court's reasoning and some commentary on that reasoning here.

The full letter from the CCRC follows...

CCRC Letter Re Clarke Advice Redacted by Nick Wallis on Scribd


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Friday 22 January 2021

Court of Appeal ruling on possible contempt by Flora Page and Paul Marshall

As well as telling me I couldn't have the Clarke Advice, on 3 Dec 2020, the Court of Appeal was also busy trying to decide whether or not Flora Page or Paul Marshall had been in contempt of court by disclosing the Clarke Advice to a journalist and the police.

At the end of the day it made an order requiring another constitution to deal with it and then, last week, it released a ruling stating that the proceedings of 18/19 November and those of 3 Dec were not, of themselves, contempt proceedings. 

There are two careers hanging in the balance here, so I don't want to be flippant, but if they weren't contempt proceedings, what were they? The answer to this question might have a bearing on the progression of this situation, which, let's not forget, has cost three Subpostmasters their chosen representatives in court.

Here is the full ruling:

Court of Appeal ruling on Clarke Advice contempt by Nick Wallis on Scribd

Court of Appeal Ruling re access to the Clarke Advice

Late last year I made an application to the Court of Appeal to receive the Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office scandal. 

Brian Altman, QC for the Post Office in the current Court of Appeal proceedings, told the court the Clarke Advice revealed that:

"Mr Gareth Jenkins, an expert witness [for the Post Office] 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.”

The significance of this document was such that when the legal team representing Seema Misra, Tracy Felstead and Janet Skinner received it from the Post Office, one barrister (Flora Page) sent it to a journalist and another (Paul Marshall) sent it to the Metropolitan Police, which is currently investigating two Fujitsu engineers (including Gareth Jenkins) over their role in the scandal.

The Post Office took exception to Ms Page's actions, which set in motion a chain of events, leading to both barristers stepping down from representing their clients. Mr Marshall has written to both Lord Justice Holroyde (who is presiding over this appeal case) and the Lord Chief Justice over the matter.

No gun jumping

My application to see and report on the plainly important contents of the Clarke Advice was refused by the Court of Appeal on 3 December, but I only got the full approved written ruling telling me why this week.

The whole document can be found below, but the key paragraph is:

"In our judgment, neither a need to mention a document in order to raise a concern as to the possible impropriety of its being given to a press representative, nor a reference to a document in submissions to which its contents are not relevant, can be regarded as a reference to the document sufficient to necessitate its provision to a journalist or any other person with an interest in the case.  It would, in our view, be contrary to the proper conduct of proceedings if that consequence could be achieved by a party who had received disclosure of the document simply making it available to a journalist, especially when that is done in advance of a hearing on the basis that the party concerned will refer to the document at the hearing, and all the more so when the document in question has no relevance to the issues to be discussed at the hearing."


"there is at present no basis for granting Mr Wallis' application for access to a copy of the Clarke Advice.  The principles governing the provision of documents to journalists and to other persons who have a legitimate interest in proceedings, but who are not parties, do not at present require or permit the release of the Clarke Advice to Mr Wallis.  We emphasise the words at present.  The position may change as these appeals progress.  We emphasise that our decision today necessarily relates to the situation as it presently stands.  The court is not however prepared to allow anyone to jump the gun."

I asked Mr Marshall to give me his view on this ruling, and I also approached Mark Hanna for his view. Mr Hanna is co-editor of McNae's Essential Law for Journalists. He told me:

"The Court's ruling in respect of the Clarke Advice gives hope that this document will be released to the media later in the appeal proceedings, when the relevance of the document's contents becomes, as regards the reporting of what is said in court, beyond dispute. 

But the ruling is disappointing, because in it the Appeal Court judges seem to view the concept of open justice as relating strictly to the reporting of the particular proceedings. But there is case law that the societal benefits of open justice include revelation of matters raised in court but beyond the scope of the issues in that particular hearing. The Appeal Court ruling does not set out clearly what risk of harm exists from allowing the Clarke Advice document to be fully reported now."

Mr Marshall wrote to say:

"Underlying the reasoning in the court’s ruling of 3 December are two a priori assumptions, unexamined and unargued.  

First, once disclosed to the appellants, the appellants are restricted in the use they can make of the “Clarke Advice”.  

The Post Office asserted (but did not establish) that the document is covered by an implied undertaking as a matter of law.  But the Clarke Advice is a document that tends to cast doubt on the safety of convictions of the appellants (that’s why it was disclosed). It is disclosed by the Post Office as prosecuting authority, post-conviction, not a private litigant. That is entirely different from the usual circumstance in which a party to, say, civil litigation gives disclosure of its private documents which they are entitled ordinarily, as of right, to keep to themselves. 

In civil litigation there is an implied undertaking of the kind identified by the House of Lords in Harman v Secretary of State for the Home Department (now codified under the rules of civil procedure). The quid pro quo is that as a consequence of being involved in litigation the documents disclosed under compulsion are protected in the use to which they may be put. That has no application whatever to the present appeals. 

There is no similar countervailing right of a prosecuting authority to withhold documents that cast doubt on a conviction.  

The second assumption (asserted but not established) is that the document was covered by legal privilege

But the assertion of privilege in the Clarke Advice would have been a ground for it not being disclosed to the appellants at all. Not only was the document disclosed, which ordinarily results in loss of privilege, but the terms of disclosure expressly provided that documents that met the criteria for disclosure would be disclosed even if privilege might otherwise have attached – a provision that is not referred to in the court’s judgment.

The question remains, had the Clarke Advice been disclosed to appellants before these appeals as a document that cast doubt on the safety of their convictions, on what possible basis could it have been said that the appellants would have been inhibited from going to the press about it? The Post Office could scarcely have been heard to say ‘we’ll let you have this document that casts, or may throw, doubt upon the safety of your convictions - so long as you don’t tell anyone about it and only if you use it for an appeal’.   

Any such restriction would likely have engaged rights guaranteed under Article 10 of the ECHR. In short, the judgment, unsatisfactorily, raises more questions than it answers.  Further, assumptions of the kind made are a questionable basis for displacing the principle of open justice identified in Cape Intermediate Holdings."

I hope the contents of the Clarke Advice, and both the CK Sift Review and the Altman Review which it spawned (see my oral submission to the Court for more on that) are made public sooner rather than later. Furthermore, I hope the decisions that were made by the Post Office and the government in the light of the information those documents contained are also fully exposed.

The full ruling is embedded below or can be read here on Scrib'd:


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Wednesday 20 January 2021

Another four referrals by the CCRC

Four more former Subpostmasters have been referred back to the courts by the Criminal Cases Review Commission.

They are:

Roger Allen,  who pleaded guilty to theft at Norwich Crown Court  on 7 April 2004. He  was  sentenced to six months imprisonment.

Pamela Lock, who  pleaded guilty to false accounting  at Swansea  Crown Court on 1  November 2001. She was sentenced to  80 hours of  unpaid work and ordered to pay £26,071.53 compensation and £500 costs. 

Oyeteju  Adedayo (known to many as Teju), who  pleaded guilty to false accounting at Medway Magistrates’ Court on 19 January 2006. She was sentenced to  50 weeks imprisonment suspended for 24 months with 12 months of supervision and 200 hours of unpaid  work.

Parmod  Kalia, who pleaded guilty to theft at Bromley Magistrates’ Court on 17 December 2001. He was sentenced to six months imprisonment at Croydon Crown Court on 8 March 2002. 

Mr Allen and Mr Lock will likely be rolled into the cohort of appellants who will be heard at the Court of Appeal on 22 March.

Mrs Adedayo and Mr Kalia's cases will be dealt with at Southwark Crown Court (because they were convicted at magistrates' courts, crown courts hear the appeals).

"Unbearable shame"

This brings the total number of Subpostmaster referred by the CCRC to 51. Six of those Subpostmasters have already had their convictions quashed. Of the remaining 2020 referrals the Post Office is contesting three. 

Interestingly, Mr Allen was not prosecuted by the Post Office, but by the Department for Work and Pensions. Nonetheless his prosecution was Horizon-related. 

It means that it is up to the DWP to decide whether or not to contest Mr Allen's appeal. The Post Office tell me that they have served a respondent’s notice for Pamela Lock’s case but as it's not yet in the public domain they are unwilling to provide any more information about it. No decision has yet been communicated to the court about Ms Adedayo or Mr Kalia.

I have spoken to two of the Subpostmasters named above. Neither wished to comment on the record but I got a sense they are relieved to have got this far.

Teju Adedayo has had her story published on her solicitor's website where she spoke about her ordeal at the hands of the Post Office's investigators, saying:

"My parents brought me up to respect the law, work hard and earn a decent honest living. I’ve been completely broken by this, particularly by how this has impacted on my family and the unbearable shame it has brought on us all."

Ms Adedayo is represented by Hudgells, who also represent Parmod Kalia. Today Neil Hudgell, the firm's MD, released a statement saying:

"We are particularly pleased as whilst we have had plenty to celebrate in the past few months, we have been determined to ensure nobody is left behind.

We have 30 clients who have been told their convictions will be quashed, a significant number more at the initial stage of submitting their cases to the CCRC, and a handful still awaiting decisions from them.

We keep going until we’ve overturned the convictions of each and every person wronged as a result of his scandal.”


This website is entirely funded by donation. You can contribute any amount through the tip jar via a secure payment portal I have set up for the purpose (click here for more info or to donate).

If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.