Monday, 22 March 2021

Day 1 transcript: Court of Appeal Hearing - 42 Subpostmaster Appellants

 This is the unperfected transcript from Court 4:


           1                                          Monday, 22 March 2021


           2   (10.33 am)


           3                           Housekeeping


           4   THE CLERK OF THE COURT:  The observers on the CV platform


           5       are reminded that no recording of these proceedings are


           6       allowed to take place.


           7           My Lord, there are participants on the platform who


           8       are from the media.


           9   LORD JUSTICE HOLROYDE:  Thank you very much.  Can I just


          10       express, for those who are attending remotely, that we


          11       hope you will be able to sufficiently observe and hear


          12       proceedings.  We are aware that there have been one or


          13       two aspects of the arrangements which are not as ideal


          14       as we would wish, but everyone will have appreciated the


          15       constraints of social distancing and it imposes


          16       practical limitations on what can be achieved.


          17           We are grateful for all that has been done to enable


          18       proceedings to be conducted in this court, with


          19       an overflow court, and also the people who are attending


          20       remotely.


          21           Mr Moloney, I wonder if I can address counsel


          22       through you.  We should, at the very outset, address the


          23       position of those who are interested in reporting


          24       proceedings.  The court alerted counsel, I think last


          25       week, to our preliminary view, which is: we don't think


                                             1





           1       there will be any need for reporting restrictions now


           2       that we are at the final hearing of these appeals, but


           3       we indicated that if anybody wished to make any


           4       submissions to the contrary, that they should be ready


           5       to do so at this stage of the proceedings.


           6   MR MOLONEY:  No.


           7   LORD JUSTICE HOLROYDE:  Are you able to assist us in


           8       relation to your position or the position of --


           9   MR MOLONEY:  We have no submissions, my Lord, and I know of


          10       no others amongst the appellants.


          11   LORD JUSTICE HOLROYDE:  Does anybody think there is going to


          12       be any need for any reporting restrictions?


          13           Very good, then we will confirm that we see no need


          14       for any reporting restrictions.  Those who, in their


          15       roles as journalists, wish to live tweet the proceedings


          16       may do so in accordance with the usual principles.


          17           Really, the only other matter to mention,


          18       Mr Moloney, to all counsel through you, before we start


          19       submissions is this: it can be assumed that the court is


          20       familiar, of course, with the CCRC references and with


          21       the relevant judgments from the civil proceedings.  But


          22       there are a lot of papers in the case, and anyone who


          23       wishes us to take note of any particular document


          24       should, please, identify it and give us time to find it


          25       in our hard copies, so that we all know exactly what --


                                             2





           1   MR MOLONEY:  Of course, my Lord, yes.


           2   LORD JUSTICE HOLROYDE:  All right?


           3           Very good.  Thank you very much, Mr Moloney.


           4   MR MOLONEY:  Thank you, my Lord, and my Lady.


           5           As your associate has just said, this is of course


           6       a reference from the Criminal Cases Review Commission.


           7       There is a draft order of proceedings; would it be of


           8       assistance to the court if I was to introduce


           9       representation, to begin with?


          10   LORD JUSTICE HOLROYDE:  It would indeed.


          11   MRS JUSTICE FARBEY:  Apologies, you are probably not sitting


          12       where you would have been according to social


          13       distancing, and I am having a little bit of trouble


          14       hearing on this side.


          15   MR MOLONEY:  I will speak up, my Lady, and thank you for


          16       that indication and help.


          17           My Lords and my Lady, I appear on behalf of the


          18       appellants represented by Hudgell solicitors, along with


          19       Ms Raghallaigh.


          20           For the appellants Misra, Skinner and Felstead,


          21       Ms Busch, Queen's Counsel, with Dr Sam Fowles and Olivia


          22       Davies.


          23           For the appellants Fell, Darlington, Shaheen, Holmes


          24       and Lock, Mr Stein, Queen's Counsel, and


          25       Mr Lynton Orrett of counsel appear.


                                             3





           1           For the appellant Mr Parekh, Mr Sandip Patel,


           2       Queen's Counsel, appears.


           3           For the appellant Carl Page, Mr Saxby, Queen's


           4       Counsel, appears.  I have not been able to see him this


           5       morning, but I know he represents Mr Page.


           6   LORD JUSTICE HOLROYDE:  I think also Mr Owen, perhaps.


           7   THE CLERK OF THE COURT:  Mr Saxby and Mr Owen will be on


           8       CVP.


           9   MR MOLONEY:  Thank you.


          10           For Mr O'Connell, it is Mr Ben Gordon of counsel.


          11   THE CLERK OF THE COURT:  By CVP, also.


          12   MR MOLONEY:  For the respondents, we have Mr Brian Altman,


          13       Queen's Counsel, Ms Zoe Johnson, Queen's Counsel,


          14       Mr Simon Baker, Queen's Counsel, and Jacqueline Carey.


          15   LORD JUSTICE HOLROYDE:  Yes.  Would you deal with the


          16       representation of Mr Hussain?


          17   MR MOLONEY:  I thought I did.  It is Mr Millington Queen's


          18       Counsel and Mr Ragveer Chand.  I apologise.


          19   LORD JUSTICE HOLROYDE:  Thank you very much.  Thank you,


          20       yes.


          21   MR MOLONEY:  Thank you.


          22           My Lord, the order of proceeding anticipates, this


          23       morning, general submissions in relation to grounds 1


          24       and 2, and with me leading off in relation to those


          25       general submissions.  But it is anticipated that there


                                             4





           1       would be additional general submissions on ground 2 from


           2       Mr Stein Queen's Counsel and Ms Busch Queen's Counsel.


           3   LORD JUSTICE HOLROYDE:  Yes.


           4   MR MOLONEY:  My Lord, we -- Mr Stein, Ms Busch, and I --


           5       have been liaising for the last past week or so in


           6       relation to submissions.  We are mindful of the need to


           7       avoid repetition whilst ensuring the points relied on by


           8       each appellant is put before the court in order that


           9       justice may be done to their cases.  So, Ms Busch and I


          10       have produced speaking notes in order to try and do the


          11       best to ensure those points are available to the court.


          12           Given that the court will not deliver judgment until


          13       23 April, we also thought the notes would be a useful


          14       aide-memoire for the court going forward.  I hope


          15       my Lords and my Lady have our speaking note in relation


          16       to both grounds 1 and ground 2.


          17   LORD JUSTICE HOLROYDE:  Yes, thank you, Mr Moloney.  We


          18       received your note and some associated documents


          19       electronically, earlier this morning, and hard copies


          20       have helpfully been provided.  We have also received


          21       Ms Busch's speaking note, although, certainly speaking


          22       for myself, I have literally only picked it up, I


          23       haven't been able to read it.


          24           Our thanks to everyone for the preparation of those


          25       and, more generally, can I say that we are very grateful


                                             5





           1       to all counsel for the obvious cooperation which has


           2       gone into making these proceedings run as efficiently as


           3       possible.


           4                    Submissions by MR MOLONEY


           5   MR MOLONEY:  Thank you, my Lord.


           6           Might I then turn, my Lord, to the general


           7       submissions and my speaking note in relation to ground


           8       1, abuse of process.


           9   LORD JUSTICE HOLROYDE:  Yes.


          10   MR MOLONEY:  I hope we can take these relatively shortly and


          11       focus our main submissions on ground 2 during the course


          12       of this morning.


          13           The appellants before this court were prosecuted by


          14       the Post Office Limited between 2000 and 2013.  There


          15       are some 42 appellants before the court.  Five were


          16       convicted by a jury following trial.  Of those four, one


          17       had pleaded guilty to false accounting before their


          18       trial, ten pleaded guilty to theft and 27 pleaded guilty


          19       to false accounting or fraud.


          20           Of those 42, the respondent concedes that 39 of


          21       their appeals should be allowed on the basis of


          22       ground 1.  Ground 1 of the two grounds of appeal


          23       referred by the commission.  Ground 1 is, in essence,


          24       a limb 1 abuse of process, which means essentially the


          25       appellants' convictions were unsafe because they could


                                             6





           1       not or did not have a fair trial.


           2           The general basis for the concession made by the


           3       respondents in relation to those 39 appeals is found at


           4       paragraphs 9 to 10 of the respondent's consolidated


           5       respondent notice and is summarised at paragraph 10 in


           6       the following way:


           7           "In those cases set out below where the reliability


           8       of Horizon data was essential to the prosecution and


           9       conviction of the appellant; where there was inadequate


          10       investigation and/or, and full and accurate disclosure


          11       was not made, the respondent does not resist the appeal


          12       on the grounds that the non-disclosure amounted to first


          13       category abuse of process."


          14           In that respondent's notice, the respondent has


          15       summarised, essentially, the factual basis for why the


          16       reliability for Horizon was in issue in each case,


          17       accepted that there was a failure to investigate, and


          18       accepted that the absence of disclosure prevented the


          19       proceedings from being fair.


          20           We say that the 39 cases bare out a similar and


          21       often identical picture.  In some cases, the respondent


          22       has been able to point to particular investigative


          23       failings relating to accounts given in interview,


          24       failures to investigate helpline calls, or failure to


          25       investigate ARQ data.  They have accepted that the


                                             7





           1       respondents could not prove that there had in fact been


           2       a shortfall or real financial discrepancy.  We say that


           3       the lowest common denominator is that, in these 39


           4       cases, there has been material non-disclosure which


           5       rendered proceedings unfair and the convictions are


           6       thereby unsafe.


           7           The court then has to decide what to do with those


           8       concessions.  We adopt them, but the court is not bound


           9       by them.


          10           It is a matter for the court to decide whether, on


          11       the basis contended for the appellants' convictions are


          12       unsafe.


          13           My Lords and my Lady are familiar from earlier


          14       arguments in this court as to the importance of


          15       McIlkenny and Maguire in the decision the court has to


          16       come to in relation to these grounds, but we submit the


          17       concessions made by the Post Office Limited are adequate


          18       in order to make out a limb 1 abuse of process.


          19           The court will be addressed on the material before


          20       it and, of course, the submissions in relation to


          21       ground 2 will be developed to the new material before


          22       the court found an abuse of process on the basis that


          23       these prosecutions were an affront to justice.  There is


          24       of course a factual overlap between the two grounds.


          25           To that end we don't rehearse the details of the


                                             8





           1       concession which unpin ground 1, but simply emphasise


           2       those matters that are set out at paragraphs A to I, on


           3       pages 3 and 4 of our speaking note, that the focus of


           4       ground 1 is fairness to the accused; that the centrally


           5       important factor in the analysis of whether or not there


           6       would be an unfair trial is the relationship between the


           7       prosecutor and the defendant; the foundational features


           8       of the relationship are the prosecutor's obligations to


           9       investigate reasonable lines of inquiry, and to disclose


          10       to the defendants that which undermines the prosecution


          11       case or assists the defence.


          12           If Horizon was essential to the allegations against


          13       the 39 appellants for whom concessions have been made,


          14       those concessions are correct, we say, and the basis of


          15       them was shortfalls and discrepancies recorded by the


          16       Horizon system.  The integrity of that system was in


          17       fact determinative of whether or not those things


          18       existed in fact.


          19           Appellants had raised issues with Horizon during


          20       their interviews with Post Office Limited, and some of


          21       them were simply at a loss to explain how the


          22       discrepancies had occurred.


          23           Post Office Limited was in control of that Horizon


          24       data, which was essential to the prosecutions of these


          25       people and could determine the extent to which that data


                                             9





           1       was obtained, investigated, and disclosed.  The extent


           2       to which Post Office Limited in fact did any of those


           3       things was determinative of whether the appellants would


           4       be in a position to defend themselves in any meaningful


           5       way.


           6           There are, we say, from the 39 cases dealt with in


           7       the consolidated respondent's notice, real difficulties.


           8       There is an absence in many cases of any investigation


           9       into Horizon, let alone one which conceivably could be


          10       considered adequate.


          11           Many appellants in these cases pleaded guilty in the


          12       face of the difficulties that they faced in defending


          13       themselves, being deprived of any meaningful way of


          14       defending themselves, and the combination of those


          15       factors, at A to H, caused unmitigated prejudice to each


          16       appellant.


          17           That all being before the court, we say there is no


          18       reason for this court to doubt those concessions or the


          19       bases for them and we submit therefore that ground 1 is


          20       made out.


          21           If I could now respectfully turn to ground 2.


          22   LORD JUSTICE HOLROYDE:  Yes.


          23   MR MOLONEY:  It is just said the Post Office concedes that


          24       the prosecution of 39 of these appellants constitutes


          25       an abuse of process.


                                            10





           1           We just outlined the basis on which those


           2       concessions were made: inadequate investigation; lack of


           3       full and accurate disclosure; non-disclosure.


           4           Within that context where the respondent now


           5       concedes that these appellants could not have a fair


           6       trial, or have the shame and humiliation of arrest and


           7       prosecution, all experienced the enormous psychological


           8       toll associated with that process.  A large number


           9       received a custodial sentence.  Many immediately went to


          10       prison, some saw their marriages break up, others


          11       suffered bankruptcy, and some are dead having gone to


          12       their graves with their previous convictions still


          13       extant.  One of these appellants has spent the last nine


          14       years being of bad character and now is suffering from


          15       terminal brain cancer.


          16           Those cases are not before the court, but it is


          17       plain there has been more extensive damage caused to


          18       people who were of previous good character, working as


          19       sub-postmasters in these branches for the respondent.


          20       All of that damage, we say, was caused by unfair


          21       recovery of alleged debt and unfair trials stemming from


          22       defective software and an abject failure on the part of


          23       the respondents to effectively assess, let alone


          24       effectively address, the defects in that software and


          25       their implications for so many blameless individuals.


                                            11





           1           We have identified five main themes in which that


           2       approach from the respondent can be demonstrated.


           3           Firstly, the recovery of money from those who were


           4       not prosecuted through the aggressive enforcement of


           5       unfair contract terms.


           6           Secondly, the failure to properly investigate


           7       whether or not the complaints about Horizon had any real


           8       substance.


           9           Thirdly, the failure to disclose who was known about


          10       the inadequacies of the Horizon system.


          11           Fourthly, the improper conditions placed on plea


          12       deals, which, because they effectively absolved Horizon


          13       of responsibility for the cases, cannot be divorced from


          14       the failure to properly investigate whether or not the


          15       complaints about Horizon had any real substance, nor


          16       indeed the failure to disclose what was known about the


          17       inadequacies of the Horizon system.


          18           Finally, the collateral motives in prosecution.


          19   MR JUSTICE PICKEN:  Can I just ask a question?


          20   MR MOLONEY:  My Lord, yes.


          21   MR JUSTICE PICKEN:  In the first case, recovery of monies


          22       from those who were not prosecuted, just help me with


          23       where that fits in with (Inaudible) in relation to


          24       (Inaudible).


          25   MR MOLONEY:  Absolutely, my Lord.


                                            12





           1   MR JUSTICE PICKEN:  If you are coming on to it, don't worry.


           2   MR MOLONEY:  I am coming on to it, but I will flag it now,


           3       if I may, my Lord?


           4           Essentially, we say the approach of the respondents


           5       was unitary.  There is a term that is used -- and I will


           6       come on this -- that is: the respondent is the business.


           7           My Lords may have seen that reference to that term


           8       within the skeleton argument of the respondents.


           9           That approach, that problem in relation to


          10       investigative failings and disclosure failing was as


          11       present in the prosecution of the unfair contract terms


          12       as it was in the prosecutions, we say, and the court


          13       should consider this as a unitary process, a unitary


          14       entity.


          15           We take each in turn.  Before we do, my Lords, may


          16       we first alight upon how it is that the first signs of


          17       Horizon's unreliability emerged?  Because what we now


          18       know is that there were concerns about Legacy Horizon,


          19       that software system, from the very outset.


          20           We apologise for not being able to get these into


          21       the bundles before now, my Lords and my Lady, but we


          22       have put before the court this morning recently


          23       disclosed minutes of a board meeting, or a number of


          24       board meetings, of the respondents which took place in


          25       1999 and 2000, as Legacy Horizon was being "rolled out",


                                            13





           1       as the term is used, across the branches of the Post


           2       Office.


           3           This is a disclosure note given to the appellants by


           4       the respondent, on 11 March of this year.  It is some


           5       six pages.


           6           If I could start on page 1, with the minutes of the


           7       Post Office board meeting of 20 July 1999.  That is at


           8       the bottom of page 1, but over on to page 2.


           9           We can see in those minutes, towards the top of the


          10       second page, there is a description of the incidents


          11       which have been occurring with Legacy Horizon in


          12       preparation for its roll out across the branches.


          13       Underneath (v), we see that system roll out was


          14       scheduled for 23 August 1999, with acceptance needed by


          15       18 August.  There were three categories of acceptance,


          16       each with a threshold which would determine whether or


          17       not roll out could proceed: high, medium and low.


          18           One incident within the high category or more than


          19       20 incidents within the medium category would result in


          20       the system not being accepted.  Currently, there were


          21       270 incidents of which one was high and 29 were medium.


          22           Going then, if I may, to the same meeting at (xii),


          23       which is at the top of page 3.  Members were concerned


          24       that a number of technical issues remained unresolved


          25       and that the BA contract position was still unclear.


                                            14





           1       These were two critical issues and needed to be


           2       progressed further before the board would be content for


           3       the contract with ICL to be signed.  ICL, of course, was


           4       essentially bought out by Fujitsu around this time.


           5           An update on the negotiating position with BA would


           6       be provided to members who were content that the final


           7       decision on whether or not to sign the contract be


           8       remitted to the chairman and chief executive.


           9   LORD JUSTICE HOLROYDE:  Forgive me, BA, what does that stand


          10       for in this paragraph?


          11   MR MOLONEY:  May I come back to my Lords on that?  I might


          12       seek the assistance of the respondents on that,


          13       actually.


          14   LORD JUSTICE HOLROYDE:  All right.


          15   MR MOLONEY:  Thank you, my Lord.


          16           Then we have the minutes of the board meeting of


          17       14 September 1999, where we see at (iii) that Horizon,


          18       when the board last met in July, the Horizon programme


          19       director had been confident that system acceptance would


          20       occur as planned, on 18 August.  Unfortunately, three


          21       high priority acceptance incidents around training, and


          22       then stability of the system, lock ups and screen


          23       freezes, and the quality of accounting data remained


          24       unresolved.  Whilst ICL did not accept the


          25       categorisation of these incidents, they had nevertheless


                                            15





           1       resulted in acceptance being deferred until


           2       24 September.


           3           Then at (v), progress on training had gone well and


           4       the incident had now been downgraded to medium priority.


           5       However, system stability and accounting was still being


           6       analysed and rectification was not expected


           7       before December.


           8           Over the page, if I may, please, my Lords and my


           9       Lady, to page 4, where it is revealed that a report was


          10       given to that board meeting, which was the Post Office


          11       Counters Limited monthly performance report.  Within


          12       that report, under the heading, "Management Technology",


          13       was the following:


          14           "At the (Inaudible) acceptance board, on 18 August,


          15       ICL were advised that because, in POCL's view, [Post


          16       Office Counters Limited] there were three high severity


          17       acceptance incidents and 12 medium to severity


          18       acceptance incidents, six of which had no agreed


          19       rectification plan, the contractual acceptance condition


          20       had not been met."


          21           Then, over to page 5, if I may, please,


          22       paragraph 3.4 reveals that there was a board meeting on


          23       30 November 1999, which had the benefit of a report from


          24       the chief executive.  Again, under "Harnessing


          25       technology", it reads:


                                            16





           1           "The traffic light for this milestone has changed to


           2       amber this month to reflect the current uncertainty


           3       around Horizon meeting the acceptance criteria."


           4           It goes on to say there will be a formal review on


           5       7 January.  We then see that, on 11 January, there is


           6       another board meeting, that is 11 January 2000, where


           7       the board received an update on the Horizon programme.


           8       The minutes of that report, as far as they are material,


           9       provide at (i):


          10           "The roll out of Horizon was due to commence on


          11       24 January.  A great deal of work had been undertaken to


          12       rectify difficulties identified in three areas: system


          13       stability, accounting integrity, and the provision of


          14       support to offices.  Although as yet uncertain, it was


          15       anticipated that these issues would not prevent roll out


          16       commencing."


          17           So, we say it is plain, my Lords and my Lady, from


          18       the very outset that there were difficulties with the


          19       integrity of Horizon, which were obvious at the highest


          20       levels of governance in the Post Office.


          21   LORD JUSTICE HOLROYDE:  Sorry to interrupt, Mr Moloney, but


          22       I would just like to clarify this issue before we move


          23       on.


          24           The paragraph 3.5, 11 January (Inaudible).


          25   MR MOLONEY:  Yes.


                                            17





           1   LORD JUSTICE HOLROYDE:  Reference to recommencing the


           2       rollout, or commencing -- are we to infer that something


           3       happened (Inaudible).


           4   MR MOLONEY:  Yes, think what happened, my Lord, perhaps


           5       characteristic of any roll out, was that a certain


           6       number of branches were, as it were, pilot studies for


           7       the use of it.  Then, whether or not acceptance was


           8       achieved within those branches, then there would be full


           9       roll out.  So --


          10   MR JUSTICE PICKEN:  I think, in fact, that is the point made


          11       at the top of that page (Inaudible).


          12   MR MOLONEY:  Indeed, my Lord, thank you.


          13   LORD JUSTICE HOLROYDE:  (Inaudible).


          14   MR MOLONEY:   We actually see, my Lords and my Lady,


          15       a replication of those difficulties, when, 10 years


          16       later, the Post Office adopts Horizon online as its new


          17       software system, and Mr Justice Fraser dealt with those


          18       difficulties in detail, at paragraph 455 of his


          19       judgment.


          20           I won't take my Lords and my Lady to it yet, but we


          21       will come back to it when dealing with Horizon online


          22       and the ISME(?) report and what happened around 2010.


          23   MR JUSTICE PICKEN:  But this material, which has been


          24       recovered from the Post Office Museum not disclosed in


          25       the civil proceedings?


                                            18





           1   MR MOLONEY:  It seems not, my Lord.


           2           What we can see is that the roll out of Horizon was


           3       substantially delayed because of concerns about its


           4       reliability, and the board of the Post Office sanctioned


           5       that course.


           6           So, we say that this is not a situation -- when we


           7       see sub-postmasters reporting inexplicable problems with


           8       their accounting software from almost the moment that


           9       Horizon is rolled out.  This is not a situation where


          10       difficulties with Horizon were a dawning realisation for


          11       the institution, a realisation that developed over


          12       a number of years.


          13           Instead, the very highest levels of management and


          14       governance in the Post Office were on notice as to the


          15       very real potential for Horizon to malfunction, to


          16       misfire before it was fully implemented.  We


          17       respectfully say that fact is fundamentally important


          18       for any assessment of the adequacy of the reaction by


          19       the institution to those who did experience difficulty


          20       with the operation of Horizon, because far from


          21       recognising that sub-postmasters may be genuine in their


          22       complaints about the operation of Horizon, which we say


          23       would be a natural reaction to an institution that was


          24       aware that there had been difficulties with Horizon


          25       prior to implementation.  What this institution did,


                                            19





           1       what this business did, was that it chose to disbelieve


           2       each of the sub-postmasters of previous good character


           3       who complained of the faults in the operation of


           4       Horizon.


           5           It chose to ignore the distress that was being


           6       suffered by those sub-postmasters when the Post Office


           7       alleged that they were responsible for the shortfalls,


           8       and it demanded that they repay every penny of the


           9       apparent shortfalls or face legal action, whether that


          10       be civil action or prosecution.


          11           In fact, on many occasions, even repaying what was


          12       owed would not prevent prosecution.


          13           May we then just deal very briefly with the


          14       relationship between ground 1 and ground 2, before


          15       moving on to the specifics that we have already


          16       outlined, the five factors?


          17           Because we need to do so, we submit, because there


          18       is overlap between limbs 1 and 2, both legally and


          19       factually, but there is also a distinction between


          20       limb 1 and limb 2 abuse between ground 1 and ground 2 in


          21       these appeals.


          22           The distinction between fair trial abuse and


          23       essentially it being unfair to try a defendant found


          24       early expression in Bennett.  I know my Lords and


          25       my Lady will be familiar with the principles of abuse of


                                            20





           1       process, so I intend to take this very shortly, at this


           2       stage, and return to it towards the end of my


           3       submissions.


           4           But, essentially, what was said in Bennett, as far


           5       as ground 2 abuse is concerned, is that because the


           6       judiciary accepts a responsibility for the maintenance


           7       of the rule of law, that embraces a willingness to


           8       oversee executive action and to refuse to countenance


           9       behaviour that threatens either basic human rights or


          10       the rule of law.


          11           Whilst the two bases can be considered


          12       disjunctively, the overlap between the two bases is


          13       countenanced and we see that in the dictum of


          14       Lord Justice Neill in the case of Beckford, which we set


          15       out at paragraph 19 of our speaking note, where


          16       Lord Justice Neill said that in some cases of course the


          17       two categories may overlap.


          18           Whilst the rationale for limb 2 abuse ordinarily


          19       assumes the ability of the State to hold a fair trial,


          20       as can be seen in the formulation of Lord Lowry in Hui


          21       Chi-ming v The Queen, where the test that is articulated


          22       was that something so unfair and wrong that the court


          23       should not allow the prosecution to proceed with what


          24       is, in all respects, a regular proceeding.  There can


          25       be, in essence, both grounds of abuse, both limbs of


                                            21





           1       abuse, within a single set of proceedings as is before


           2       the court today.


           3           We rehearse that background because these are not


           4       regular proceedings.  This is essentially the essence of


           5       our argument going forward: there is a concession on


           6       fair trial for particular reasons.  We say there is


           7       a close relationship between those particular reasons


           8       which underpin limb 1 and the particular reasons which


           9       underpin limb 2.


          10           In particular, we say that there should not be


          11       an artificial relationship between the facts which found


          12       the concession on limb 1 and the facts which found the


          13       concession on ground 2 because those concessions in


          14       ground 1 have implications for the issues in ground 2.


          15           Now turning to the specifics of the abuse and coming


          16       essentially to the point that my Lord, Mr Justice Picken


          17       raised, about why it is that the recovery of money from


          18       those who were not prosecuted through the aggressive


          19       enforcement of unfair contract terms is relevant to this


          20       court's consideration.


          21           It might be argued that contractual oppression


          22       should be divorced from the consideration of any


          23       prosecutorial unfairness.  In the ordinary run of


          24       events, such a distinction might well be appropriate.


          25       If these cases had been prosecuted by the Crown


                                            22





           1       Prosecution Service, then such a distinction would very


           2       likely be appropriate, because the prosecutorial


           3       decisions taken by the Crown Prosecution Service would


           4       properly be regarded as independent of any contractual


           5       enforcement taken by the Post Office.


           6           But, in circumstances where the prosecutor is also


           7       the complainant, when the complainant is pursuing civil


           8       recovery against the postmasters, as well as pursuing


           9       prosecutions of sub-postmasters on essentially the same


          10       facts, then the distinction is, we say, entirely


          11       inappropriate and effectively illusory.


          12           A heavily resourced institution of national stature,


          13       like the Post Office, which commanded the trust of the


          14       public, its employees and the State, might have been


          15       expected to mitigate the tension between being


          16       complainants and being prosecutor.  (Inaudible) the


          17       prosecutor of crimes it alone decided it was the victim,


          18       as complainant and prosecutor.


          19           We submit the evidence in this case is consistent


          20       with the respondent, as an organisation, having made


          21       decisions to resist any suggestion that Horizon was


          22       compromised.  We say those decisions were arguably borne


          23       of a precedence which has been afforded to the


          24       institution's imperative of protecting Horizon and


          25       thereby its own reputation.


                                            23





           1           We say, and we take some assistance -- and we hope


           2       this is not in any way underhand, but we take assistance


           3       in this submission from the respondent's skeleton


           4       argument, as we said.  Because, at paragraphs 81 and 82


           5       of the response to the skeleton arguments on behalf of


           6       the appellants, the respondent addresses our skeleton


           7       argument and states, at paragraph 81, that reference is


           8       made to the content of a document within the disclosure


           9       which is said to demonstrate the prosecution being, or


          10       not being, in the business interest of Post Office


          11       Limited, leading to the argument that there is no


          12       apparent lawful basis on which the respondent could have


          13       decided to prosecute individuals based on their own


          14       business interest.  It is said that this is


          15       a misquotation and a misreading of the memo from


          16       Jarnail Singh to Martin Smith of Cartwright King, on


          17       10 December 2012.  In fact, the document reads:


          18           "It is not in the business or public interest to


          19       proceed with the prosecution of a sub-postmaster, not


          20       among the referred appellants."


          21           It is explained that "business" is used internally


          22       to describe Post Office Limited.


          23           It is clear the use of the term in the email, in


          24       combination with the term "Public interest" is not about


          25       a commercial decision whether or not to prosecute.


                                            24





           1           In seeking to draw a distinction between business


           2       interests in a more general sense and the interests of


           3       the business, then even if -- which we don't accept --


           4       that distinction is tenable for a commercial


           5       organisation like Post Office Limited, the respondent


           6       has only highlighted that the interests of the Post


           7       Office Limited business were at the heart of the private


           8       prosecutorial decision-making in these cases, and that


           9       the business has a unitary nature.


          10           May we take my Lords and my Lady to the first


          11       document that we wish to draw your attention to?  Which


          12       is found at page 769 of bundle C.


          13           This is a page from the schedule of disclosable


          14       extracts, which we received from the respondent at


          15       different stages of the disclosure process.  It is


          16       an extract from the Post Office Limited board minutes


          17       for the meeting of 12 January 2012.  This is when


          18       concern is developing internally as to the media around


          19       the issue of the reliability of Horizon and the


          20       challenge to the integrity of the Horizon system by


          21       sub-postmasters.


          22           We know, of course, this had in fact been going on


          23       since 2003 at the very latest because all the other


          24       disclosable extracts that we have received in this form


          25       show complaints of this nature, right the way through


                                            25





           1       from 2003 through to 2013.  But, here, we have the


           2       minutes of the board meeting, where the quote is that


           3       the business has also won every criminal prosecution in


           4       which it has used evidence based on the Horizon system's


           5       integrity.


           6           We respectfully say that the business interest,


           7       which motivated the contractual dispute, was the same


           8       business interest which motivated prosecution, or they


           9       cannot be separated out.  There could be no clearer


          10       statement of the unitary nature of this entity when it


          11       was conducting prosecutions than the statement that the


          12       business has also won every criminal prosecution in


          13       which it has used evidence based on the Horizon system's


          14       integrity.


          15           In each contractual dispute, what the Post Office


          16       did was to assume that the sub-postmasters were


          17       responsible for the shortfalls, even though they


          18       couldn't establish the shortfalls.  They assumed that


          19       the sub-postmasters were responsible and then they


          20       sought to recover from them and/or prosecute them unless


          21       they could prove their innocence.  That attitude


          22       persisted, we respectfully say, even through the GLO


          23       litigation, and that much was found by Fraser J at


          24       paragraph 462 of the common issues judgment, when he


          25       said:


                                            26





           1           "In any event, the evidence of Ms Dickinson does


           2       demonstrate the Post Office's default position regarding


           3       their SPMs.  This is that shortfalls and discrepancies


           4       are not caused by the Horizon system.  Therefore those


           5       that do occur can only be the responsibility of SPMs."


           6           This conclusion means that the Post Office fraud


           7       prevention and debt recovery procedures will be used


           8       against sub-postmasters in this position, unless


           9       a sub-postmaster can show that the shortfall or


          10       discrepancy was not their fault.


          11           Mr Justice Fraser illustrated that approach later


          12       on, in the common issues judgment, when dealing with the


          13       potential for dispute between a sub-postmaster and the


          14       Post Office to be resolved.  At 566 of that judgment, he


          15       explains:


          16           "However it remains the case that there was no


          17       separate mechanism established at any stage to resolve


          18       the disputed shortfalls and discrepancies.  As the


          19       flowchart at appendix 5 demonstrates, unless the


          20       sub-postmaster could identify with precision the day and


          21       time of the fault he or she alleged, the Post Office


          22       will not assist.  This is clear from the entry:


          23           "'Can agent provide specific day and timeframe for


          24       alleged fault?'.


          25           "Where, if the answer is no, the following entry


                                            27





           1       states:


           2           "'Advise, unable to progress further until can do


           3       so.'"


           4           That is the practical manifestation of the attitude.


           5       That document emanated from 2012 to 2013.  But


           6       demonstrating the enduring, pervasive and ultimately


           7       unjustified approach of the respondent at fault


           8       throughout the period of the prosecution before this


           9       court, Fraser J made a specific finding that, as far as


          10       the document is concerned, that is mentioned at


          11       paragraph 566, he found that this correctly identifies


          12       the Post Office's approach to this issue raised by


          13       sub-postmasters from the introduction of Horizon


          14       onwards.


          15           We say that approach reflected, and arguably stemmed


          16       from, the apparent refusal on the part of the respondent


          17       to countenance the potentiality unless it was proven by


          18       the sub-postmaster that the Horizon software system


          19       might be responsible for the shortfalls being discovered


          20       in the sub-Post Offices the length and breadth of the


          21       United Kingdom.  It was for the sub-postmaster to prove


          22       that this was Horizon or it was their fault.


          23           That approach then infected each and every stage of


          24       the prosecutorial process.


          25           Now, at this point in our speaking note, we divert


                                            28





           1       slightly just to mention the case of Tague v Governor of


           2       HM Prison, Full Sutton.  We will not go to into it at


           3       this stage.  But, in order to develop or alight upon the


           4       fact that this is not a public prosecutor, and this is


           5       not the Crown Prosecution Service, where -- because the


           6       president, Lord Justice Leveson in this case, identifies


           7       that one has to be careful about what might be described


           8       as "mere State incompetence".  We say that we can firmly


           9       distinguish the actions of the respondent from the mere


          10       State incompetence that is observed by the President in


          11       case of Tague v Full Sutton.


          12   MR JUSTICE PICKEN:  Before you do, Mr Moloney, coming back


          13       to the question I raised about the (Inaudible), if you


          14       go back to paragraph 5, do you find that the issue is


          15       recovery of money from those who work not (Inaudible)?


          16           What I think you are actually saying is the recovery


          17       is done between the (Inaudible) contract terms.  You


          18       don't need (Inaudible) and in fact (Inaudible) focus


          19       primarily at least on those who were prosecuted,


          20       otherwise noting that those (Inaudible) pursuit of


          21       public money.


          22   MR MOLONEY:  With respect I entirely agree, my Lord, and


          23       I suppose the refinement of what I am saying is that


          24       a unitary approach --


          25   MRS JUSTICE FARBEY:  Are you saying that in effect there is


                                            29





           1       a pincer effect, because on one hand you are reporting


           2       unfair contract terms, and on the other hand you have


           3       the criminal justice procedure and the business, as it


           4       is referred to in the notes, whether that means the


           5       commercial side or the Post Office side, internal


           6       phraseology, the business is front and centre of


           7       that pincer effect?


           8   MR MOLONEY:  My Lady, yes, and that the same attitude


           9       pervades all of the operations of the business.  That


          10       attitude is one of institutional resistance to the idea


          11       that Horizon may be to blame for what is being seen in


          12       the branches across this country.


          13   MR JUSTICE PICKEN:  The business, with a capital B or little


          14       b, doesn't matter because the Post Office is a business.


          15   MR MOLONEY:  Absolutely, my Lord.


          16   MR JUSTICE PICKEN:  It is not therefore a purely


          17       prosecutorial function.


          18   MR MOLONEY:  Yes, my Lord.


          19   MR JUSTICE PICKEN:  Coming back to (i), I put it in square


          20       brackets because (Inaudible), it would suggest in light


          21       of (Inaudible) further definition.


          22   MR MOLONEY:  I will put those square brackets there myself,


          23       my Lord, thank you.


          24   LORD JUSTICE HOLROYDE:  Just before you move on, Mr Moloney,


          25       simply as a matter of interest, because I don't think


                                            30





           1       I've seen the answer to this in the papers, does POL, or


           2       the modern successor body, it may be, still conduct its


           3       own prosecutions?


           4   MR MOLONEY:  My Lord, no.


           5   LORD JUSTICE HOLROYDE:  I didn't think it did.  Thank you.


           6   MR MOLONEY:  Having set that context of the overall


           7       approach, may I turn now to the failure to properly


           8       investigate whether widespread concerns about Horizon


           9       had any substance?  This is at page 10 of our speaking


          10       note, at paragraph 44.


          11           What we say is: just as the consideration of the


          12       overall conduct of prosecutions by POL cannot be


          13       artificially separated from consideration of the overall


          14       conduct of the response as a whole, because the cases


          15       before the court were private prosecutions and the


          16       business was acting in a unitary way, and in effect the


          17       respondent was complainant, investigator, and


          18       prosecutor, then investigative failings by the Post


          19       Office in the prosecutorial context cannot be divorced


          20       from the institutional failure of Post Office Limited to


          21       investigate the shortcomings of Horizon.  So, we set out


          22       the more general investigative failings to begin with,


          23       and then go to failings of a specific nature in


          24       prosecutions.


          25           As we have said earlier, the board was on notice


                                            31





           1       from before the roll out of Horizon of its potential to


           2       seriously malfunction and that board knew it had


           3       commissioned a software programme, which it had been


           4       unable to implement as planned and had been required to


           5       delay its implementation whilst reliability issues were


           6       addressed, and even proceeded with some outstanding.


           7           We say what follows shortly thereafter, with peak


           8       number, PC-006-5021 is, we say, genuinely extraordinary


           9       because the background to that peak is set out at


          10       paragraphs 208 to 212 of the Horizon issues judgment of


          11       Mr Justice Fraser when dealing with the evidence of


          12       Mrs Van Den Bogerd.


          13           What Mr Justice Fraser does is describe that phantom


          14       transactions noted in this matter peak in April 2001


          15       which is a matter of months after roll out had been


          16       authorised, and that Royal Mail's own engineering


          17       personnel had been able to confirm the phantom


          18       transactions -- reported by sub-postmasters after making


          19       site visits to witness them for themselves.


          20           We set out the judgment of Mr Justice Fraser between


          21       paragraphs 209 and 211 to begin with, where he recounts


          22       that, at paragraph 209:


          23           "She gave evidence about out of hours transactions


          24       and so-called phantom sales, the latter of which she


          25       explained in her written evidence as follows:


                                            32





           1           "'I am informed by Post Office's solicitors that, in


           2       the course of investigating this matter, Fujitsu have


           3       advised phantom sales were reported in around 2000,


           4       which appeared to be caused by hardware issues.


           5           "'There is a master peak in relation to this in


           6       2001, and even though Mrs Van Den Bogerd was very


           7       closely involved in the issues on Horizon, she had not


           8       known about this until some time later, and indeed she


           9       could not even remember the approximate year she had


          10       become aware of it and did not recall in the witness box


          11       having seen the master peak before.'"


          12           Mr Justice Fraser said:


          13           "I am most surprised Mrs Van Den Bogerd could not


          14       remember seeing this peak before she was shown it in


          15       cross-examination.  It is a very important peak.  It is


          16       peak number [number is given, dated 17 April 2010].


          17           "The reason it is important is as follows: it


          18       relates to multiple branches.  It concerns phantom


          19       transactions, it identifies dissatisfaction from more


          20       than one sub-postmaster as to how phantom transactions


          21       are being investigated and resolved.  Or, more


          22       accurately, how they are not being.  It shows calls


          23       being closed, ie brought to an end, without the


          24       permission of a sub-postmaster, even though that should


          25       not be done.  It also shows at least one sub-postmaster


                                            33





           1       threatening not to comply with their contractual


           2       obligations due to lack of confidence in the system and


           3       also threats of legal action.


           4           "Further, in one branch, where items have been the


           5       subject of phantom transactions according to the


           6       sub-postmaster, Romec, the Royal Mail's own engineers,


           7       attended that branch to fit suppressors and other


           8       equipment in an effort to rectify this.


           9           "The peak plainly records the involvement of Romec,


          10       the Royal Mail's own engineering personal as follows:


          11           "'Romec had been to site and state they have


          12       actually seen the phantom transactions, so it is not


          13       just the PM's [that's postmaster's] word now.  The


          14       significance of this entry is obvious and notable.


          15       Mrs Van Den Bogerd agreed this was independent site


          16       visit corroboration of the problem by Royal Mail's own


          17       engineers at the branch.  She also agreed that this was


          18       clearly not user error anymore.'.


          19           "I do not understand how the master peak containing


          20       such information could not have been at the forefront of


          21       Mrs Van Den Bogerd's mind.  It is, in my judgment,


          22       important corroboration from those with experience of


          23       Horizon, Royal Mail's own engineers, who stated that


          24       they had actually seen the phantom transactions."


          25           That is in 2001.


                                            34





           1   LORD JUSTICE HOLROYDE:  Presumably the phantom sales had the


           2       effect, at the end of the day, of (Inaudible).  It is


           3       (Inaudible) had been made and there is no money in the


           4       till for the appropriate amount.


           5   MR MOLONEY:  I think I might be straying into technical


           6       areas where I am not particularly competent, but I think


           7       it may be as well, my Lord, that in fact the phenomena


           8       nature of the transaction can work in both directions.


           9       I think we see that in the payment and receipt mismatch


          10       book later on, that I will come to.


          11           But, certainly as far as one possibility of that


          12       transaction is that it would show things to be shorter,


          13       and that certainly what we see during the course of


          14       a number of these cases which are before the court


          15       today.


          16           But Fujitsu discounted any problem independent of


          17       user error.  Mr Justice Fraser continues:


          18           "However the conclusion reached by Fujitsu and


          19       recorded in the peak was as follows:


          20           "'Phantom transactions have not been proven in


          21       circumstances which preclude user error.  In all cases


          22       where these have occurred, a user error related cause


          23       can be attributed to the phenomena.  The peak also


          24       includes no fault in product.'"


          25           Mr Justice Fraser, we say with the greatest respect,


                                            35





           1       was rightly withering in his criticism of that


           2       conclusion.  He found:


           3           "This conclusion by Fujitsu is not only not made out


           4       on the factual evidence, including the contemporaneous


           5       entries in the peak itself, but it is in my judgment


           6       simply and entirely unsupportable.  It wholly ignores


           7       the independent support of the Romec engineers who


           8       reported that they have actually seen the phantom


           9       transactions, and it arrives at a conclusion that in my


          10       judgment entirely contradicts the evidence available to


          11       Fujitsu at the time and indeed contradicts common sense.


          12           "Given the entry, that it is not just the PM's word


          13       now, this conclusion ignores two entirely different


          14       sources of actual evidence, (1) what the SPM reported


          15       and (2) what the Romec engineers and employees of Royal


          16       Mail visiting the branch actually saw."


          17   MR JUSTICE PICKEN:  I think BA might be Benefits Agency.


          18       I get that from page 721.


          19   MR MOLONEY:  Thank you, my Lord.


          20           We say that given this peak occurred only a matter


          21       of months after implementation of Legacy Horizon, in


          22       a context where Legacy Horizon had been delayed because


          23       of concerns about its unreliability.  Given that


          24       sub-postmasters were reporting phantom transactions, and


          25       given that Royal Mail's own engineers corroborated those


                                            36





           1       phantom transactions after making site visits, we say


           2       that the conclusion of Fujitsu is extraordinary and it


           3       is also extraordinary that it appears to have been


           4       accepted by the respondent without more, and that no


           5       independent investigation of the reliability of Horizon


           6       was undertaken.


           7           We say it is supportive of a conclusion that there


           8       was a wilful failure on the part of the respondent to


           9       admit the failings of Horizon, to face up to the fact


          10       that it had commissioned this software programme and it


          11       was not fit for purpose.


          12           From then, of course, my Lords and my Lady know that


          13       problems mounted for Horizon and more concerns as to its


          14       reliability were raised, and we see those all the way


          15       through the disclosed summaries, from pages 722 on, of


          16       bundle C.  The lives of sub-postmasters were irreparably


          17       ruined.  Some took their own lives, but still the


          18       respondent did not commission an external, independent


          19       investigation into the reliability of Horizon.


          20           Instead, as part of its internal review of


          21       challenges to Horizon, in August 2010, the respondent


          22       discussed in the ISME report its ultimate refusal to


          23       order an independent review of the system's integrity.


          24   MR JUSTICE PICKEN:  Mr Moloney, can I ask you, do you place


          25       any reliance in the context of paragraph 43(?) on the


                                            37





           1       scale the apparent problems with such postmasters and


           2       mistresses?  Do we know what proportion were being


           3       (Inaudible), it was suggested that (Inaudible) bad


           4       things?


           5   MR MOLONEY:  In terms of proportion --


           6   MR JUSTICE PICKEN:  Was it out of proportion to


           7       pre-Horizon --


           8   MR MOLONEY:  Yes, there were maybe two or three prosecutions


           9       pre-Horizon, and it went up to between 40 or 50 once


          10       Horizon came in.


          11   MR JUSTICE PICKEN:  That is the question I am getting at.


          12       Do you place reliance on that in and of itself in any


          13       shape or form?


          14   MR MOLONEY:  It is a point we make during the course of this


          15       speaking note, my Lord, that essentially the


          16       Post Office, in the face of all the evidence, was


          17       prepared to accept that sub-postmasters of previous good


          18       character, who had hitherto run decent, responsible,


          19       profitable businesses became criminals overnight.  Alarm


          20       bells should have rung.


          21   LORD JUSTICE HOLROYDE:  Speaking for myself, Mr Moloney,


          22       I think the point you are making goes a little bit


          23       further than that, because the sub-postmasters and


          24       sub-postmistresses are not simply people of good


          25       character, but they are people whom POL has itself


                                            38





           1       chosen to appoint in that position, so we lock our doors


           2       when we go out, (Inaudible) vaguely somebody dishonest


           3       out there, and if we run a shop, we take precautions


           4       against shoplifting because we recognise that there may


           5       be somebody dishonest coming in.  But it is perhaps


           6       unusual for an organisation to say: the very people we


           7       have selected and put in a position of trust have


           8       suddenly lost that trust en masse.


           9   MR MOLONEY:  Indeed, my Lord.


          10   LORD JUSTICE HOLROYDE:  Thank you.


          11   MR MOLONEY:  Thank you.


          12           But, of course, far from seeing that it was


          13       necessary to commission an independent investigation,


          14       they discussed the pros and cons, as it were, of such


          15       an independent investigation.  Not something that they


          16       didn't give thought to, but we set out at paragraph 54


          17       the quote from the ISME report, which reads:


          18           "It is also important to be crystal clear about any


          19       independent review if one were commissioned.  Any


          20       investigation would need to be disclosed in court.


          21       Although we would be doing the review to comfort others,


          22       any perception that the POL doubts its own systems would


          23       mean that all criminal prosecutions would have to be


          24       stayed.  It would also beg a question of the Court of


          25       Appeal over past prosecutions and imprisonments."


                                            39





           1           So, the concerns expressed there were that the


           2       review might lead to state prosecutions and the


           3       examination of the safety of convictions by this court.


           4           It appears that a great many heads of department in


           5       POL had sight of that report, including the head of


           6       criminal law, Rob Wilson, and the principal lawyer


           7       civil.  We say the failure of the respondent in all the


           8       circumstances to commission such an independent report


           9       is shameful and culpable.


          10           There was substantial and mounting evidence of the


          11       unreliability of Horizon.  The respondent was pursuing


          12       debt recovery and prosecutions against sub-postmasters


          13       who were denying misusing funds and raising concerns


          14       that any discrepancies were due to the malfunctioning of


          15       Horizon.  The lives of sub-postmasters were lost and


          16       ruined as a result of the approach of the respondent.


          17           Personnel at Post Office Limited were of the view


          18       that Fujitsu regarded its contract with the respondent


          19       as a cash cow.  We see that at paragraph 920 of the


          20       Horizons judgment, but yet we say, as it were, Fujitsu


          21       was allowed to mark its own homework.


          22           We do submit that any institution behaving


          23       rationally would have commissioned an independent


          24       review.  But, of course, the respondent refused to


          25       believe what was self-evident, namely that Horizon was


                                            40





           1       faulty.  There is the point we make, my Lords, that all


           2       of the sub-postmasters who had previously been of good


           3       character, they refused to believe that they had not


           4       overnight become devious thieves and fraudsters, and


           5       they refused to believe that despite having all the


           6       necessary evidence before them.


           7           The problems continued and the concomitant


           8       resistance to investigation continued.  In 2013, as is


           9       set out from paragraphs 216 of the Horizon issues


          10       judgment, an internal Post Office email reported that


          11       a sub-postmaster had found sensitive issue with Horizon


          12       when the system put a phantom check on the check line in


          13       July 2013.  Claims to have evidence to support his


          14       claim.  Although he himself did not suffer a loss,


          15       thinks that Horizon is flawed.  Did not ask to be


          16       contacted about this.  Just wanted to say he had this


          17       information and threatened to go to his MP as a result."


          18           That report led to the question being raised at the


          19       Post Office as to whether:


          20           "Given the current media, and in particular the


          21       BBC's attention on Horizon, do you think it is


          22       worthwhile looking into this alleged flaw with Horizon


          23       that this sub-postmaster has highlighted?  To pre-empt


          24       any enquiries from his MP."


          25           It was Andrew Wynne of the Post Office who answered


                                            41





           1       that question, and this was the same Andrew Wynne who


           2       was present at the receipts and payments mismatch bug


           3       meeting, which I will come on to, as an example of


           4       an instance of the respondent's failure on disclosure.


           5       But, here, in terms of investigation, he said that the


           6       claim could not be investigated without further details


           7       and Fujitsu involvement.  He also said he didn't


           8       understand the purpose of the call by the sub-postmaster


           9       concluding:


          10           "My instinct is we have enough on these people


          11       asking to us look at things."


          12   MR JUSTICE PICKEN:  Sorry, the ISME report you rely on the


          13       passage you quoted at page 27.


          14   MR MOLONEY:  Yes, my Lord.


          15   MR JUSTICE PICKEN:  Looking at page 26, under the heading


          16       "Independent review and audit".  It says:


          17           "POL has actively considered the merits of


          18       an independent review.  This has been purely from the


          19       perspective that we believe Horizon but that a review


          20       could help others get the same confidence that we have.


          21       Our decision between IT, Legal (Inaudible) and the


          22       security in question has continued to be that no matter


          23       what opinions we obtain, people will still ask what if


          24       and the defence will not ask questions that require


          25       answers beyond the roll out."


                                            42





           1   MR MOLONEY:  Yes.


           2   MR JUSTICE PICKEN:  I assume you rely on that, of course --


           3   MR MOLONEY:  I do, my Lord, and I was going to come to that


           4       later on, but, entirely, my Lord, yes.  Yes.


           5           Underpinning that attitude, my Lord, we say it is


           6       clear that they have a belief in Horizon which they


           7       refused to be shifted on, despite all the evidence


           8       before them and that it must be (Inaudible) of the


           9       postmaster.


          10   MR JUSTICE PICKEN:  There is also reference there in the


          11       passage.


          12   MR MOLONEY:  Indeed, my Lord, yes.


          13           What Mr Justice Fraser said -- and we respectfully


          14       say this is an important passage from the Horizon issues


          15       judgment, which effectively analyses the approach and


          16       motivations of Post Office when considering this type of


          17       issue.  Because when Mr Wynne said that we have enough


          18       on with people asking us to look at things,


          19       Mr Justice Fraser was equally withering, as he had been


          20       before, that response -- and he found:


          21           "In my judgment, the stance taken by the Post Office


          22       at the time, in 2013, demonstrates the most dreadful


          23       complacency and total lack of interest in investigating


          24       these serious issues, bordering on fearfulness of what


          25       might be found if they were properly investigated."


                                            43





           1           We say that appears to be a motivation for the Post


           2       Office.  This SPM, whose branch was known to the Post


           3       Office, should obviously have been asked for further


           4       details if further details were required for the


           5       investigation, and the Post Office or Fujitsu should


           6       plainly have investigated the matter as a matter of some


           7       importance.


           8           By 2013, Horizon was an extraordinarily


           9       controversial subject.  There can simply be no sensible


          10       excuse for the Post Office's failure to try and


          11       understand this particular subject.  This is


          12       particularly reprehensible given that an internal Post


          13       Office document, in August 2013, showed that Mr Wynne's


          14       involvement in this was because his area of


          15       responsibility was as follows:


          16           "Also responsible for resolving specific branch


          17       accounting issues."


          18           It was his specific job to resolve specific branch


          19       accounting issues, yet he decided at the time that "we


          20       have enough on".  I agree with Mrs Van Den Bogerd, this


          21       is inadequate; that is putting it at its most favourable


          22       for the Post Office, somewhat stronger terms are also


          23       justified.


          24           Mr Wynne had key responsibility in the structure of


          25       Post Office Limited, and we say his dreadful complacency


                                            44





           1       directly reflects the dreadful complacency of the


           2       respondents.


           3           We see, as I said earlier, my Lords and my Lady,


           4       that this institutional denial of any problems with the


           5       integrity of Horizon, which ensured that there was no


           6       independent investigation of Horizon in its various


           7       manifestations, continued long after the last of the


           8       prosecutions with which this court is concerned.


           9           Following a 2015 Panorama, the Post Office sent the


          10       following messages to sub-postmasters:


          11           "The Post Office wholly rejects the extremely


          12       serious allegations repeated in the BBC's Panorama


          13       programme of 17 August 2015.  The allegations are based


          14       on partial, selective and misleading information.  The


          15       Post Office does not prosecute people for making


          16       innocent mistakes and never has.  There is no evidence


          17       that faults with the computer system caused money to go


          18       missing at these Post Office branches.  There is


          19       evidence that user actions, including dishonest conduct,


          20       were responsible for missing money."


          21           There quite plainly was evidence with those faults


          22       with the computer system.  The respondent's


          23       institutional attitude of denial manifested itself in


          24       the conduct of prosecutions.  We set out, just very


          25       briefly, a couple of examples of the way in which there


                                            45





           1       was resistance to investigations.  I know others have


           2       identified other examples in written skeleton arguments


           3       before the court, and I will not spend too much time on


           4       that, but we see at (i) of paragraph 68 the suggestion


           5       that securing data which might be relevant to the


           6       defendant's position was expensive and a complete waste


           7       of time and money.  We say that is symptomatic of the


           8       attitude which was seen in response to requests.  Then


           9       the refusal of the provision of ARQ data at (ii).


          10           If I can now move on, my Lords and my Lady, to the


          11       failure to disclose what was known about the


          12       inadequacies of the Horizon system.  Just as with their


          13       investigative duties, the respondent failed in its


          14       disclosure duties, we say.


          15           We say they are exemplified, those failings, by what


          16       emerged during the GLO about the receipts and payments


          17       mismatch book.


          18           It was a book that resulted in a branch having


          19       an apparent balance when this is to essentially return


          20       to the point, my Lord, Lord Justice Holroyde, made about


          21       it showing a lack of cash because what this book could


          22       do is show a balance when in fact there had been a loss


          23       or a gain.  So, it is either a loss or a gain.


          24           A meeting was convened to discuss that book and


          25       Mr Justice Fraser set out the material parts of the memo


                                            46





           1       of that meeting at paragraph 428 of his Horizon issues


           2       judgment.  Part of that memo reads, and we have set it


           3       out:


           4           "The impact of this is the branch has appeared to


           5       have balanced where in fact it could have a loss or


           6       a gain.  Our accounting systems could be out of sync


           7       with what is reported at the branch, but most


           8       importantly, in 2010, if widely known could cause a loss


           9       of confidence in the Horizon system by branches and


          10       potential impact upon ongoing legal cases where branches


          11       are disputing the integrity of Horizon data.  It could


          12       provide branches ammunition to blame Horizon for future


          13       discrepancies."


          14           The implications of that document are extremely


          15       serious and we say that there is a fearful attitude


          16       there, my Lords and my Lady, which is reflective of that


          17       fearfulness identified by Mr Justice Fraser in the


          18       passage I read out to you earlier.


          19           It is a fearful attitude which underlays that


          20       resistance to invest in independent investigation found


          21       in the ISME report.


          22           The implications are extremely serious because the


          23       Post Office was a public body that had assumed the role


          24       of prosecutor in respect of the alleged offences


          25       committed by sub-postmasters.


                                            47





           1   MR JUSTICE PICKEN:  I think Mr Justice Fraser described it


           2       as a "most disturbing" document.


           3   MR MOLONEY:  He did, my Lord.


           4           As an institution, it was aware of the potential for


           5       Legacy Horizon to malfunction even prior to its roll out


           6       in 2000 existed, and hence the delay in roll out.  It


           7       was aware of the problems of the roll out in respect of


           8       Horizon online as well.


           9           If I could just take my Lords and my Lady back to


          10       paragraph 10 of our speaking note now to see what


          11       Mr Justice Fraser said about the problems with Horizon


          12       online.  This is at page 3 of our speaking note,


          13       paragraph 10, and it is the third line of that paragraph


          14       in which we quote from his judgment:


          15           "Horizon online also did not have a happy birth.


          16       The pilot for it had to be stopped and Fujitsu put it on


          17       what was called red alert.  Mr Godeseth described this


          18       as very serious.  The biggest issue was with oracle,


          19       which was what Mr Godeseth was working on and hence knew


          20       the most about, but he explained there were other


          21       problems going on at the same time.  Some of these


          22       problems were put to him, and it must be remembered that


          23       this was a pilot scheme with some problems to be


          24       expected, and they included cash being short on one day


          25       but £1,000 because a transaction for £1,000 did not show


                                            48





           1       up on the online report facility.  Cash withdrawals


           2       being authorised on screen, yet the printed receipt


           3       being declined.  The customer very honestly brought the


           4       cash back next day having noticed the receipt wording.


           5       A similar problem with the cash deposit and remming in


           6       figures all being doubled up.  These are all somewhat,


           7       and indeed markedly, similar to some of the problems


           8       alleged by the different claimants' witnesses in this


           9       litigation and this all occurred during the pilot


          10       scheme."


          11           So, we see those problems not just with the pilot


          12       scheme for Legacy Horizon, but also for Horizon online,


          13       and we see problems being caused with the receipts and


          14       mismatched payments book.


          15           As matters developed, the Post Office was aware that


          16       sub-postmasters have been attributing losses to Horizon


          17       and that schedule of disposable extracts across tranches


          18       1 to 4 demonstrate through records of taped interviews,


          19       defence statements, and so on and so on, how these


          20       issues were being raised from 2003 all the way through


          21       to 2013, when the prosecutions stopped.


          22           As matters developed, the Post Office was aware that


          23       people were being prosecuted and going to prison, while


          24       still protesting that the shortfalls that had been


          25       discovered must be attributed to Horizon.  Those people


                                            49





           1       were sent to prison despite that.


           2           This institution, we say, that had assumed the


           3       mantle of prosecutor, should have been fulfilling its


           4       prosecutorial responsibility and ensuring that adequate


           5       mechanisms were in place to identify and disclose any


           6       information that might undermine the prosecution case


           7       that Horizon was reliable.  It should identify any


           8       material reasonably assisting the defence case that the


           9       sub-postmaster had taken no money and that shortfall


          10       may -- because that is all that is necessary, my Lords


          11       and my Lady will be aware, within the context of the


          12       burden and standard of proof in a criminal trial -- may


          13       be due to Horizon.


          14           The Post Office employee, Andrew Wynne, mentioned


          15       earlier, was at that meeting, as was Gareth Jenkins,


          16       a prosecution witness who has been relied on by the


          17       respondents at times to attest to the robust and


          18       reliable nature of Horizon.  The implications of that


          19       meeting for Post Office Limited's prosecutorial duties,


          20       referred to by Mr Justice Fraser at paragraph 430, and


          21       we see that, rather ironically, at 443 of the Horizon


          22       issues judgment:


          23           "Post Office Limited expressed dissatisfaction with


          24       Fujitsu having failed to disclose the receipts and


          25       payments mismatch book for some four months, but


                                            50





           1       extraordinarily there were not associated concerns about


           2       making sure that this saw the light of day as soon as


           3       possible."


           4           We say that an institution that assumed the mantle


           5       of public prosecution in these cases should not be


           6       proceeding on the basis of fear of cases being


           7       undermined by material that they were in possession of.


           8           Mr Justice Fraser, as my Lord, Mr Justice Picken,


           9       observed, described this document as:


          10           "A most disturbing context in the context of this


          11       group litigation".  It is a 2010 document and issues


          12       between the Post Office and many sub-postmasters


          13       concerning the accuracy of Horizon had, for


          14       Legacy Horizon, gone on for a decade, 2000 to 2010.


          15       These continued under Horizon online, introduced in


          16       2010."


          17           Those remarks again, we say, illustrate and


          18       reinforce the enduring and unaddressed nature of the


          19       abuse of process which underpin these prosecutions.


          20           As Mr Justice Fraser continued that, to see


          21       a concern expressed that if a software bug in Horizon


          22       were to become widely known about, it might have


          23       a potential impact upon ongoing legal cases where the


          24       integrity of Horizon data was a central issue, is a very


          25       concerning entry to read and in a contemporaneous


                                            51





           1       document:


           2           "Whether these were legal cases concerning civil


           3       claims or criminal cases, there are obligations upon


           4       parties in terms of disclosure.  So far as criminal


           5       cases are concerned, these concern the liberty of the


           6       person and disclosure duties are rightly high.  I do not


           7       understand the motivation in keeping this type of matter


           8       recorded in these documents hidden from view, regardless


           9       of the motivation, doing so was wholly wrong.  There can


          10       be no proper explanation for keeping the existence of


          11       a software book in Horizon secret in these


          12       circumstances."


          13           We say that there can be no valid excuse for that


          14       document not seeing the light of day in the schedule of


          15       unused material, in each case prosecuted by the


          16       respondents where the defendant sub-postmaster at any


          17       stage of the investigation and prosecution raised the


          18       reliability of Horizon as a possible reason for the


          19       discrepancies.


          20           We know it came through to some senior managers, as


          21       can be seen at bundle C, page 48, but the respondent had


          22       assumed the responsibility of prosecuting


          23       sub-postmasters, and instead of the state it was


          24       incumbent on it to ensure that adequate mechanisms were


          25       in place to ensure fair trials, and if such mechanisms


                                            52





           1       were in place and honestly adhered to that document


           2       would have emerged.


           3           At paragraph 83, we set out what Fraser J concluded


           4       about the calendar square bug:


           5           "Fujitsu knew to take calendar square as an example


           6       that this bug existed in Horizon.  They knew it had


           7       affected branch accounts.  It was not, as the Post


           8       Office put it 'unnecessary and inappropriate to notify


           9       SPMs of this'."


          10           I have listed the point on this bug at 425.  They


          11       are both admitted by Mr Godeseth in his written


          12       evidence:


          13           "Those same points all lead to the same conclusion


          14       in my judgment, namely that the Post Office ought to


          15       have notified, at the very least, all those


          16       sub-postmasters whose branch accounts had been impacted


          17       by this bug that this had occurred and it had occurred


          18       as a result of a software bug.


          19           "The fact that the integrity of Horizon was a live


          20       issue at this time, should not have influenced the


          21       decision to notify sub-postmasters of the software bug."


          22           We suggest, with the greatest of respect to


          23       Mr Justice Fraser, that he could reasonably have gone


          24       further because the fact that the integrity of Horizon


          25       data was a live issue at this time should have


                                            53





           1       influenced the decision to notify sub-postmasters of


           2       a software bug.  It would have influenced the decision


           3       of any responsible prosecutor in this area, because that


           4       is to say, in circumstances where Horizon was a live


           5       issue, it became all the more imperative that this


           6       disclosure was made by this prosecuting body.


           7   MR JUSTICE PICKEN:  Reference at C/48, the criminal law


           8       (Inaudible).


           9   MR MOLONEY:  Yes.


          10   MR JUSTICE PICKEN:  I note in the email of 8 October 2010


          11       from Mr Simpson, (Inaudible) he states:


          12           "The above (Inaudible) initial analysis of


          13       (Inaudible).  My concern is around the proposed solution


          14       (Inaudible) repercussions in future prosecuted cases and


          15       on the integrity of Horizon on our system."


          16   MR MOLONEY:  Absolutely, my Lord, and that is one of the


          17       passages that we refer to in our disclosure failings,


          18       specific -- yes, indeed.


          19           What we see, there my Lord, if I may, is a good


          20       example of the unitary nature of the business because we


          21       see, at the higher level, the discussion of the receipts


          22       and payments mismatch book, and at the higher level,


          23       which involved all the heads of department, the concern


          24       about how this might affect prosecutions, how it might


          25       affect branches, how it might affect civil actions.


                                            54





           1           We then see it move down and the same concerns


           2       reflected in within the criminal prosecutions


           3       department, as evidenced by the contents of the email


           4       that my Lord has just alighted.


           5   MR JUSTICE PICKEN:  Yes.


           6   MR MOLONEY:  Then we see Mr Justice Fraser dealt with other


           7       bugs and had similar criticism.  We say that resistance


           8       to disclosure and the failure to disclose was systemic


           9       and consistent for the reasons I have just outlined.  It


          10       applied to all aspects of the operation of Post Office


          11       business, and was not confined to the employees and


          12       agents that were tasked with the prosecution of


          13       sub-postmasters.


          14           I am conscious of the time that I am taking, but we


          15       have set out in the speaking note specific examples of


          16       failings in disclosure, which we say are important to


          17       considering the role of the Post Office in prosecuting


          18       these cases.  They are set out in paragraph 91, from A


          19       through to G.


          20           Essentially, just to outline them in very short


          21       form, there was a reluctance to disclose, and indeed


          22       a failure to disclose, reports that were relevant to


          23       other cases, even though they affected the case in hand.


          24       But, really importantly, my Lord, perhaps, an extreme


          25       example of the approach to disclosure is set out at B,


                                            55





           1       when there was a schedule of sensitive material created


           2       by an employee of the prosecution department for the


           3       purposes of withholding one item, which was namely


           4       a letter from a sub-postmaster raising concerns about


           5       Horizon.  The rationale for including this letter on


           6       a sensitive schedule was that the letter could be used


           7       as mitigation, ie to blame Horizon for loss.


           8           We say there could be no clearer misuse of the power


           9       to allocate an item to a sensitive schedule and thus


          10       obscure it, in effect, from scrutiny by the court, as


          11       well as the defendant.  No clearer manifestation of the


          12       apparently systemic resistance to any suggestion that


          13       the malfunction of Horizon might be relevant to the


          14       issues in the case.


          15           Paragraph (c), my Lord, Mr Justice Picken, has


          16       already mentioned.  It is Rob Wilson told by


          17       Alan Simpson about the payments and mismatch.  We see,


          18       of course, that was copied into that and it was


          19       forwarded to Mr Jamail Singh, who was very prominent


          20       within the prosecutions of the sub-postmasters all the


          21       way through the prosecutions, it seems.


          22           We see other matters going through from E, which is


          23       about disclosure of an item to a defendant.  It is


          24       Jacqueline McDonald, that they were not going to tell


          25       the defendants about an expert's report they had in one


                                            56





           1       case; they can find that out for themselves.  Advice


           2       from Martin Smith of Cartwright King to Jamail Singh


           3       that he would instruct to tell the Crown Court that


           4       Horizon works perfectly.  That email was sent long after


           5       Jamail Singh was aware of the problems with the receipts


           6       and mismatch book.


           7           Then a section 8 application served on the


           8       Cartwright King, where a schedule was not disclosed in


           9       response to that section 8 application because it


          10       contained personal opinion.


          11           We say that those failures are rendered all the more


          12       egregious, as was noted by Mr Justice Fraser, by the


          13       inability of the defendants to make their own


          14       investigations, their own investigations of the reasons


          15       for apparent discrepancies.  Mr Justice Fraser dealt


          16       with it at paragraph 1000 of the Horizon issue judgment,


          17       essentially saying because the reports and data


          18       available to SPMs was so limited, their ability to


          19       investigate was itself similarly limited:


          20           "The expert agreement, to which I refer at paragraph


          21       998 above, makes it clear in IT terms that SPM simply


          22       could not identify apparent or alleged discrepancies and


          23       shortfalls, their causes nor actions, nor properly


          24       identify transactions recorded on Horizon themselves.


          25       They required the cooperation of the Post Office."


                                            57





           1           So, defendants who were forced to resist serious


           2       allegations against them were unable to make their own


           3       enquiries about Horizon and were reliant for disclosure


           4       on a business that was the complainant as well as the


           5       investigator, as well as the prosecutor, which


           6       demonstrated an enduring institutional resistance to


           7       disclosure in all aspects of its business.


           8           Put simply, the business was resistant to disclosure


           9       of anything which undermined the reliability of Horizon


          10       and, accordingly, no such disclosure was forthcoming.


          11       That was even though a wealth of material that should


          12       have been disclosed was available to the business.  As


          13       Mr Justice Fraser observed, at paragraph 946 of his


          14       judgment:


          15           "A theme contained within some of the internal


          16       documents is an extreme sensitivity seeming to verge on


          17       occasion to institutional paranoia concerning any


          18       information that may throw doubt on the reputation of


          19       Horizon or expose it to further scrutiny.


          20           "One entry in a document which makes it clear that


          21       the Post Office itself had already recognised this is


          22       contained in the document authored by Mr Justice Van Den


          23       Bogerd, entitled "Extracts from lessons learned log",


          24       and dated 11 November 2015.  One entry, under "Issues


          25       identified", was as follows, in respect of the


                                            58





           1       Post Office's behaviour up to that date:


           2           "'Failure to be open and honest when issues arise,


           3       eg roll out of Horizon.  Horizon online, migration


           4       issues and issues affecting few branches not seemingly


           5       publicised'.


           6           "We say the specific failures identified in


           7       paragraph 91, that I just mentioned, cannot be viewed in


           8       isolation from each other, nor from the prevailing


           9       attitude from the Post Office institution.  They could


          10       reflect and are entirely consistent with the attitude to


          11       disclosure in relation to Horizon which pervaded all


          12       aspects of the operation of the business."


          13           We say this, perhaps importantly: what that meant


          14       was that attitude of the Post Office institution to


          15       Horizon meant that in cases where the reliability of


          16       Horizon was in issue, the prosecution could never be


          17       impartial.


          18   MRS JUSTICE FARBEY:  Do you say that because when one looks


          19       at your submission, and indeed the submissions of


          20       Ms Busch, and when one looks at that failure to


          21       disclose, the failure to investigate, and under which


          22       (Inaudible), it is not a matter of us saying, well, in


          23       case A, it's bug A; in case B, it was bug B.  Perhaps


          24       (Inaudible) didn't know about that, and, in case C, not


          25       at all (Inaudible).  It is attitudinal.


                                            59





           1   MR MOLONEY:  Yes.


           2   MRS JUSTICE FARBEY:  Therefore, on any account, in any cases


           3       in the relevant time period, there is a risk of


           4       a miscarriage of justice and that is diametrically


           5       opposed to a fair prosecution and therefore it would be


           6       (Inaudible); is that it?


           7   MR MOLONEY:  My Lady, yes, that is the essential thrust of


           8       it, my Lady, yes, absolutely.


           9           Perhaps as a further illustration of that, my Lady,


          10       if we may, our (iv) is that there were conditions


          11       imposed on plea deals which were, we say, essentially


          12       with the objective of -- or certainly they achieved this


          13       anyway, whether it was a conscious intention or -- it


          14       would surely be because there are so many instances of


          15       it, but the plea deals secured the institutional


          16       objective of convicting sub-postmasters and acquitting


          17       Horizon in effect.  We give examples that, on


          18       25 February 2013, the respondent stated it would only


          19       accept a guilty plea from the defendants in defence of


          20       false accounting if the defendant confirmed in writing


          21       that "there is no criticism made towards the functioning


          22       and reliability of the Horizon system."


          23           That condition of the plea is a common thread within


          24       the generic disclosure, and it is a feature in fact of


          25       the four cases where the Post Office has conceded on


                                            60





           1       both ground 1 and ground 2.  But it occurs in many of


           2       the cases that are before this court; that there has to


           3       be an acceptance that Horizon was not to blame for the


           4       apparent shortfalls.  Thus we say that not only did the


           5       respondent fail in its investigative duties, both in


           6       general terms and in prosecutions; not only did it fail


           7       in terms of its disclosure duties, both in general and


           8       in the prosecutorial process; the respondent used the


           9       leverage of plea negotiations which I would ask my Lords


          10       and my Lady to bear in mind took place in the context


          11       where the defendant's objective -- in these cases where


          12       the respondent has conceded ground 1, the defendant's


          13       objective was to remain at liberty when the proceedings


          14       concluded.  We see that as a common feature of these


          15       cases.


          16           So, that imperative, that institutional imperative


          17       of acquitting Horizon and convicting the


          18       sub-postmasters, what took place in that context, it was


          19       in order to protect Horizon and protect their own


          20       commercial reputation.


          21   MR JUSTICE PICKEN:  That reference at 98 is to the ISME


          22       report.


          23   MR MOLONEY:  My Lord, yes.


          24   MR JUSTICE PICKEN:  The sentence after that goes on to say:


          25           "However, it does not stop the speculation about the


                                            61





           1       system.  It is not possible (Inaudible) saying what if."


           2   MR MOLONEY:  Exactly.


           3   MR JUSTICE PICKEN:  "(Inaudible quoting)."


           4   MR MOLONEY:  Indeed, my Lord, yes.  Thank you.


           5           But we also say this approach enabled it to be


           6       said -- going back to where we started in many


           7       respects -- to the board meeting of 12 January 2012,


           8       that the business has also won every criminal


           9       prosecution in which it has used evidence based on the


          10       Horizon system's integrity.


          11           Those plea deals secured that institutional


          12       objective.


          13           Again, that institutional objective meant that the


          14       prosecutions of sub-postmasters could never be impartial


          15       if the reliability of Horizon was in issue.


          16       Accordingly, the Post Office should never have been


          17       prosecuting these cases, and it is an affront to justice


          18       that they were doing so.


          19           Then, finally, our (v), where we set out what we say


          20       are collateral motives for prosecutions.  They are not


          21       as important as the previous factors that we have


          22       identified, but perhaps the institutional objective of


          23       securing what were perceived to be losses through the


          24       confiscation process, and asset recovery process, is one


          25       example that does link into that which has gone before.


                                            62





           1           There were other examples where a sub-postmaster was


           2       prosecuted despite evidence that had been assessed as


           3       lacking in merit, and there was an express intention to


           4       add charges of theft to an indictment alleging false


           5       accounting if those charged with false accounting did


           6       not plead guilty.  We have passed up to the court this


           7       morning that one example, which says, "If any seeks


           8       a trial, then I will add charges of theft", it was


           9       provided to the court this morning.


          10           We turn, if we may, to almost the conclusion, just


          11       to deal with the law.  I know that my Lords and my Lady


          12       will be familiar with it, but we set out the law and


          13       then seek to apply it to the facts before the court.


          14           There is a theme which emerges in discussing the


          15       ground 2.  There are various bases of the ground 2


          16       abuse, there are various different definitions that set


          17       out between paragraphs 103 and 106.  Those which are


          18       contained in Maxwell, in Warren, in Latif, in Mullen.


          19       But, plainly, the themes that do emerge is that ground 2


          20       abuse would offend the court's sense of justice and


          21       propriety and, in Mullen, finally, it could lead to the


          22       degradation of the law for administration of justice.


          23           There is a balancing of interests to be conducted in


          24       deciding whether a stay is required in respect of


          25       ground 2, which there isn't in relation to ground 1, and


                                            63





           1       the various factors in this case where the court has


           2       enormous discretion in determining whether or not there


           3       has been a ground 2 abuse.


           4           Various factors are potentially extensive, and here


           5       we list them, at paragraphs 111 on, and seek to say why


           6       it is that the court should decide that ground 2 abuse


           7       is made out.  But, at paragraph 111(i), it is of


           8       particular significance that the respondent's conduct


           9       has been explored in judgments following extensive


          10       litigation.  There is no need to assess the veracity of


          11       the appellant's assertions in this case.  The court can


          12       confine itself to the findings of fact and the bases of


          13       the concessions made in relation to ground 1.


          14           As far as the offences are concerned, they were


          15       offences of theft and false accounting, said to have


          16       been committed by people of positive good character.  It


          17       cannot be said this was the grave offending identified


          18       by Lord Kerr in Warren, for example.  Grave offending,


          19       it cannot be argued this criminality involved in these


          20       cases was sufficiently serious to weigh against a stay


          21       on the basis of ground 2.


          22           In each case, before the court, the convictions are


          23       accepted to be unsafe by reason of material


          24       non-disclosure, but these aren't simple cases of


          25       non-disclosure; there is a systemic underlay to this


                                            64





           1       which matters.


           2           The enduring nature of the conduct, at (v), is


           3       something that the court should take into account.  It


           4       is a powerful factor.  It is not an isolated incident.


           5       Therefore it doesn't represent a single instance of


           6       finely balanced law enforcement.


           7           But, moreover, at (vi), the respondent has thus far


           8       failed to point to any feature in the case which


           9       adequately mitigates the conduct of the respondents in


          10       prosecution the appellants while simultaneously failing


          11       to investigate relevant lines of enquiry and make


          12       crucial disclosure which would have protected the


          13       appellants from conviction and imprisonment.  There was


          14       no urgency to these cases which might mitigate the


          15       nature or gravity of the non-disclosure and, in


          16       assessing the balance between the public interest in


          17       prosecuting those accused of serious crime and the


          18       public interest of ensuring the prosecutorial misconduct


          19       doesn't undermine public confidence in the criminal


          20       justice system, we say that the facts weigh firmly in


          21       favour of the latter, and especially when this is


          22       a private prosecutor, rather than a public prosecutor.


          23           In these cases, we say whilst a fact specific


          24       analysis of each case would be necessary to secure


          25       a full appreciation of the true extent of ground 2 abuse


                                            65





           1       in each of the cases, it is not necessary to examine the


           2       facts of each case, given the circumstances of these


           3       cases, given the enduring nature of what has gone on,


           4       and the systemic nature of what has gone on, in order to


           5       establish that ground 2 abuse is made out in respect of


           6       all the cases.


           7           The private prosecutions of all these appellants


           8       constitutes an affront to justice and so, to conclude,


           9       we say that the respondent has conceded that each of


          10       these appellants was the victim of an abuse of process


          11       when they were prosecuted.  They could not and did not


          12       have a fair trial because of the inadequate


          13       investigation and/or lack of full and accurate


          14       disclosure and/or non-disclosure.  But the respondent


          15       has given no explanation of why it is that the warning


          16       signs of the potential unreliability of Horizon, which


          17       became apparent during testing and roll out, had little


          18       or no impact on their attitude to Horizon after


          19       (Inaudible); why they were justified in adopting the


          20       default position that SPMs were responsible for losses,


          21       unless they could prove that Horizon was responsible; no


          22       explanation of why it was that they ignored the widely


          23       expressed concerns of sub-postmasters, people of good


          24       character, who had previously unblemished records as


          25       sub-postmasters; why it was that they didn't commission


                                            66





           1       an independent investigation of the reliability for


           2       Horizon, and why it was that there were such fundamental


           3       failings in disclosure.


           4           The reality is, we respectfully submit, that the


           5       Post Office Limited institution, the business, could not


           6       act impartially in criminal proceedings when the


           7       reliability of Horizon was in issue.  They should not


           8       have assumed and retained the responsibilities of the


           9       prosecution of such cases.  A number of lives have been


          10       ruined as a result.  The respondent's behaviour, as


          11       an institution, does, we say, constitute an affront to


          12       the justice system of England and Wales that the court


          13       should find did constitute an affront to the justice


          14       system of England and Wales.


          15   LORD JUSTICE HOLROYDE:  Thank you, Mr Moloney.


          16   MR MOLONEY:  My Lady, yes.


          17   MRS JUSTICE FARBEY:  Paragraph 114.


          18   MR MOLONEY:  Sorry, my Lady, which paragraph?


          19   MRS JUSTICE FARBEY:  114, in (Inaudible).


          20           (Inaudible) Mr Johnston.


          21   MR JUSTICE PICKEN:  Paragraph 114.


          22   MRS JUSTICE FARBEY:  Paragraph 114, in the citation of


          23       Professor Smith, this says:


          24           "Guilty or not guilty, their rights to have


          25       (Inaudible) had been impaired."


                                            67





           1           Some of these defendants pleaded guilty.  How do we


           2       look at what Professor Smith said (Inaudible) in this


           3       case?  Is it a fact that goes to the balance, is it a


           4       but for test, or a but for a failure to disclose


           5       (Inaudible), or is it a matter which we should take into


           6       account in exercising our judgment and discretion?


           7   MR MOLONEY:  We would argue for the former, my Lady, but it


           8       is certainly the latter.  It is a factor -- one should


           9       not take it into account against the appellants.  We say


          10       that the nature of the concession by the respondents is


          11       that these -- in limb 1, these prosecutions constituted


          12       an abuse of the process because of, essentially,


          13       failings in the investigation, failings in disclosure.


          14       In those circumstances the appellants' pleas were hardly


          15       unsurprising, particularly when they could not carry out


          16       their own investigations, as was noted by


          17       Mr Justice Fraser.


          18           So, we say that there is a "but for" element to


          19       this, which is that, but for the failings which amounted


          20       to an abuse of process on ground 1, these appellants


          21       would not perhaps find themselves before this court.  It


          22       is not necessary for us to show that, we say, but the


          23       facts of the guilty pleas and the specific circumstances


          24       of these cases where in effect the defendants had no


          25       choice, and one sees that throughout a number of these


                                            68





           1       cases, then the facts of their guilty pleas should not


           2       be held against them.


           3   MR JUSTICE PICKEN:  I think it is instructed that the court


           4       in economy(?) goes on at paragraph 127 to refer to:


           5           "The reasons (Inaudible) scope of finding


           6       unequivocal intention (Inaudible) can lead to an unsafe


           7       conviction ...  However undue pressure or errors of law


           8       or unfairness in the trial process may well be of such


           9       an important (Inaudible) impact on the decision to plead


          10       guilty that the conviction which follows on from such


          11       a plea can in an appropriate case be described as


          12       unsafe."


          13           I think you would probably say that is the decision


          14       here?


          15   MR MOLONEY:  My Lord, yes, and that sentiment of course is


          16       repeated in loosely in Maxwell and so on.


          17   LORD JUSTICE HOLROYDE:  Thank you very much.


          18                     Submissions by MR STEIN


          19   MR STEIN:  My Lord, yes.  May I deal with a point that has


          20       just been raised?  In our submissions on behalf of the


          21       five appellants that we represent, I also remind the


          22       court that of course referred to in Togher [2001]


          23       1 Cr App R 33, the Court of Appeal referred then to the


          24       question of failure to disclose material that is


          25       relevant to an abuse of process.


                                            69





           1           So, where we are considering the points that relate


           2       to a guilty plea, we also have to bear in mind that the


           3       failures in disclosure can go, and would go in the hands


           4       of any defence counsel or solicitor instructed on behalf


           5       of an individual, to the fact that those disclosure


           6       points could have been used and prayed in aid of


           7       an application to stay.


           8           My Lord, as you know, myself and Mr Orrett appear on


           9       behalf of five appellants, Mr Darlington, Mr Holmes,


          10       deceased, Ms Shaheen, Ms Lock and Mr Fell.


          11           In dealing with our submissions today, we address


          12       the court in relation to -- obviously supported by my


          13       learned friend Mr Moloney's Queen's Counsel's


          14       submissions -- limb 1, and also of course limb 2 in


          15       relation to abuse of process.


          16           We have discrete submissions that will refer to


          17       Mr Fell.  They are scheduled for this week on Wednesday,


          18       so I will not be dealing with Mr Stanley Fell matters


          19       individually today.


          20           Can we first of all, therefore, thank my learned


          21       friend Mr Moloney Queen's Counsel who has borne the


          22       brunt of the submissions being made today.  The Post


          23       Office has turned itself into the nation's most


          24       untrustworthy brand.  It has done so through its own


          25       behaviour and its own fault over many years.  We submit


                                            70





           1       that the evidence that we have had before this court and


           2       disclosed to us tells us that we will never in fact now


           3       know the nature and full extent of the Horizon system


           4       faults.


           5           We do ask this court though to recall that not only


           6       have these very high number of appellants suffered under


           7       the Post Office system and the Horizon faults, but have


           8       also had so many sub-postmasters up and down the


           9       country.


          10           There is a cut-off within the disclosed material


          11       which has been applied to the material supplied to this


          12       court through the disclosure process.  That is because


          13       the respondents have argued -- and that argument has


          14       been accepted by the court -- that by and large,


          15       material should only be disclosed relevant to the


          16       disclosure relevant to the prosecution years to 2013.


          17           We also know that there is missing material, due to


          18       a handover from RMG to the Post Office, the Post Office


          19       Limited, and therefore some documents are not available


          20       because of that.


          21           What this means, collectively, is that this court


          22       cannot in fact consider all of the material that takes


          23       matters through from the earliest days of the operation


          24       of the Horizon system right the way through to the


          25       judgments of the High Court.


                                            71





           1           It means, in effect, that there will be, at this


           2       court, no full examination of all documents at all


           3       times.  May we therefore just observe that the


           4       Post Office Horizon IT inquiry is of itself limited.  It


           5       is limited through its own terms of reference to


           6       excluding the Post Office Limited's prosecution function


           7       or matters of criminal law.  That means, sadly, that the


           8       Post Office IT inquiry, a non-statutory inquiry, will


           9       not be examining the matters that are before this court.


          10           Now, sub-postmasters, and indeed the many


          11       appellants, are dismayed at the fact that there will not


          12       be a rounded examination but our respectful submission,


          13       in agreement with my learned friend Mr Moloney, is that


          14       there is a wealth of evidence that he has examined in


          15       his submissions that there was a general hostility


          16       towards sub-postmasters, the people who are, for the


          17       rest of us, at the heart of the community, and that


          18       manifested itself in the failures to act, the failures


          19       to put in place procedures and provide and preserve


          20       material which would assist sub-postmasters and those


          21       who the Post Office decided to prosecute.


          22           It is an important factor to note that


          23       Mr Justice Fraser did not have all of the material that


          24       this court has.  He had six sub-postmasters before him


          25       upon which he could make his judgments and also, clearly


                                            72





           1       and obviously, the use of the material that had been


           2       disclosed in the civil hearings.  The reason why that is


           3       important is that Mr Justice Fraser's comments and his


           4       rulings therefore were drawn from a lesser subset of


           5       material than this court has.


           6           Can we deal with some relative speed with some


           7       quotes from Mr Justice Fraser from judgment number 3.


           8       My Lord, I noted earlier that you have stated that the


           9       court is familiar with the judgments.  I will refer


          10       therefore to the paragraphs and, unless you wish me to,


          11       I will not take you to the bundles themselves.


          12   LORD JUSTICE HOLROYDE:  It depends on what weight it is


          13       being asked to be given to them.  I am not sure that the


          14       paragraph references are necessarily going to be


          15       (Inaudible) in your submissions.


          16   MR STEIN:  In that case then, can I take you first of all to


          17       bundle A, page 95, judgment number 3, paragraph 8.


          18       I refer to the relevant parts.


          19           "The different claimants all had different


          20       experiences with Horizon over different periods of time.


          21       However, there is at least one common theme.  At the


          22       time these accounting shortfalls that came to the notice


          23       of the Post Office were pursued as exactly that,


          24       shortfalls, with relevant claimants, the Post Office's


          25       stance both then and now was and is that the claimants


                                            73





           1       were responsible for these shortfalls and that the


           2       shortfalls represented actual amounts of money missing


           3       from the claimant's accounting.  An alternative way of


           4       putting what may amount to the same point, but using the


           5       approach of the pleadings, is that the Post Office


           6       maintains it is for individual sub-postmasters to prove


           7       that the shortfalls were not their individual


           8       responsibility.  Failing proof of that by an individual


           9       sub-postmaster, then the shortfalls were their


          10       individual responsibility and the sub-postmaster in


          11       question would have to pay the relevant sum to the


          12       Post Office and face the consequences."


          13           Judgment number 3, paragraph 222, bundle A, 169:


          14           "There can be no excuse in my judgment for an entity


          15       such as the Post Office to misstate in such clearly


          16       expressed terms, in letters that threaten legal action,


          17       the extent of the contractual obligation upon a SPM for


          18       losses.  The only reason for doing so in my judgment


          19       must have been to lead the recipients to believe that


          20       they had absolutely no option but to pay the sums


          21       demanded.  It is oppressive behaviour."


          22           Judgment number 3, paragraph 564, bundle A, 264,


          23       and, my Lady, this may assist in the point that was made


          24       earlier regarding the pincer movement effect:


          25           "These problems led to what Mr Green described as


                                            74





           1       a debt trap.  The sequence would go as follows: the


           2       Horizon system would show that there was a discrepancy


           3       at the branch, which, so far as the SPM was concerned,


           4       would have arisen through unexplained shortfalls and


           5       discrepancies.  These were challenged through the


           6       helpline.  That SPM disputed that the sums were due


           7       because of the way that the Post Office approached such


           8       disputed matters.  These were treated as due and owing


           9       by the SPM to the Post Office in any event; in other


          10       words as non-disputed debts.  The most that a SPM could


          11       expect from the Post Office was time to pay off the


          12       amount over 12 months, deducted from their future


          13       remuneration.  The only alternative the SPM would have


          14       would be giving notice themselves, which would bring


          15       an end to their appointment as an SPM and they would in


          16       any event, so far as the Post Office was concerned,


          17       still owe the disputed sum."


          18           These points set out by Mr Justice Fraser describe


          19       the overall working of the system and in a moment I will


          20       go to the material that we have disclosed in the generic


          21       reviews where you will see those points echoed by


          22       individuals that are prosecuted, because it is the


          23       effect of the overall system upon individuals that were


          24       then suspected and then prosecuted that we suggest is of


          25       assistance to this court.


                                            75





           1           One individual(?) point is the question of whether


           2       there was assistance that could be provided


           3       independently; same judgment, number 3, paragraph 591,


           4       bundle A, 279.  This is a reference to the National


           5       Federation of sub-postmasters and the evidence given by


           6       Mr Beale(?) during the High Court action:


           7           "Mr Beale accepted that supporting the litigation


           8       could affect the reputation of the Post Office.  It is


           9       therefore the case that, were the NFSP [National


          10       Federation of sub-postmasters] to decide to support the


          11       litigation, which undoubtedly risks damaging the


          12       Post Office's reputation if the claimants were to win,


          13       the NFSP would not only put itself in breach of the


          14       terms of the GFA [the Grant Framework Agreement] but


          15       face having grants clawed back, that is repaid by the


          16       NFSP by the Post Office."


          17           The potential therefore of a union providing


          18       assistance had been fettered by the Post Office.  What


          19       we have, in echo of the comments made by


          20       Mr Justice Fraser, are consistent complaints about the


          21       same type of issues.


          22           Can we go to bundle C, the generic disclosure


          23       reviews.  Bundle C, part 2.  Forgive me.


          24           My Lord, at 722, the generic disclosure reviews,


          25       schedule of extracts of disclosable material, referring


                                            76





           1       first of all to tranche 2, we will see as we go through


           2       some, but certainly not all, of these entries that the


           3       findings of Mr Justice Fraser regarding the effect of


           4       the system, as my learned friend Mr Moloney put it, the


           5       business, is profound upon the individuals I have spoken


           6       to.  For certainty, to make sure we are referring to the


           7       same, it is bundle C, part 2, page 722 onwards.


           8           The dates are important.  As, as we go through the


           9       particular entries that I will be referring to, the


          10       dates in terms of the years take us through the time of


          11       the operation from early days through to later on


          12       through the years.  So the first entry -- and, my Lord,


          13       you will see the references to the CCRC document and the


          14       extracts disclosed -- is in 2003:


          15           "We have been running a few small discrepancies of


          16       balance and I haven't been knowing where they have been


          17       going, where they have gone or where they have come


          18       from.  I have been getting error notices left right and


          19       centre which have confused me because I thought that


          20       I was doing everything correctly."


          21           The effect of these issues are then mentioned at the


          22       bottom of the same page, 722:


          23           "What are you trying to say there?"


          24           "That there is 7,800 missing and it is not all made


          25       up of discrepancies.  I have actually lost some money.


                                            77





           1       This is why over the last few weeks I have been


           2       absolutely out of my mind.  I haven't been eating,


           3       I haven't been sleeping because of ..."


           4           Page 723, reference to the left-hand side column,


           5       the last three figures, hopefully which should suffice,


           6       the second entry on that page, 848, and the date is now


           7       2004.  This is a memo from Julia McFarlane, case front


           8       memo, regarding a particular case:


           9           "In my opinion the evidence is sufficient to support


          10       a realistic prospect of conviction of the above named on


          11       the charges set out on the attached schedule.  I have


          12       charged the theft as one matter as it cannot be said


          13       with certainty when the defendant reintroduced orders


          14       and stole the money."


          15           The difficulty, it seems accepted, is there is


          16       a problem which the prosecution have in fact in proving


          17       particular items.


          18           Page 725, second to last paragraph, reference


          19       in March of 2005:


          20           "You said to me obviously though it is going to be


          21       around £12,300 short.  Can you at this stage -- do you


          22       want to talk about why that situation has arisen?"


          23           Then:


          24           "Yes, either people or persons or other people


          25       unknown have either been stealing money from the till or


                                            78





           1       the Post Office.  My balances were never that bad and


           2       then started quite suddenly to go £200, £300, £400 down


           3       and we couldn't understand why.  It could have been


           4       incompetency of myself or/and staff or it could have


           5       been just theft."


           6           Page 726, May of 2005, the main entry, I will only


           7       read part -- the first paragraph of that page:


           8           "When it came to the balance, it was wrong.  I just


           9       couldn't believe what had happened to it.  I have


          10       cleared the whole office out, tried to find if there


          11       were cheques missing.  You know, worrying there might be


          12       something that had gone astray.  I was just hoping that


          13       some error notice would come back and show the loss,


          14       because I have never had a loss like that in my whole


          15       life.  I have been with the Post Office for 17 years and


          16       so many audit with just a pound each way.  I have never


          17       had a loss like that.  I had a loss about five years


          18       ago, I think it was about £3,000.  I reported that


          19       straight away and it turned out that eight weeks later


          20       some cheques turned up that had not been listed


          21       evidently.  So that is the only time I have come to it."


          22           Page 727, the second to last entry, June of 2005:


          23           "Because I had done it for the balancing out there,


          24       so that I know roughly because I owed more money that


          25       I am losing every time we lost money."


                                            79





           1           "Are you saying you had a loss yesterday?"


           2           "Yes, not yesterday only, always we had a loss."


           3           He explains that every week there is a loss. He


           4       doesn't know who is making mistakes, confirms that


           5       losses have accumulated over months."


           6           My Lord, I will read one more but otherwise can


           7       I ask that the court considers the overall impact of


           8       these entries.


           9   LORD JUSTICE HOLROYDE:  Certainly.


          10   MR STEIN:  Because otherwise they go to page 820 and


          11       I suspect that you would not be assisted by my


          12       persistent reading of them.


          13           Page 728, September 2005, roughly the middle entry,


          14       starting with page 4 of 9.


          15           "What is the explanation of that money being


          16       missing?"


          17           "The only explanation what I have told everybody


          18       every time, that on a weekly basis either the money was


          19       short -- I used to put the money in and it kept growing


          20       every time.  I put money in and it got shorter every


          21       week and it built up on a weekly basis.  That is the


          22       only explanation I've got, because that is how it


          23       happened.  The only thing I regret now is that I wish


          24       I would have told somebody that this is happening, and


          25       I don't know why."


                                            80





           1           So we have the overall circumstances as described by


           2       Mr Justice Fraser as he found them, that effectively


           3       a system had been set up to blame sub-postmasters for


           4       losses.  We know that in the comments made by


           5       Mr Justice Fraser that the helpline was not a helpline


           6       in truth, it was a "get the money" line, and that


           7       because the blame was on the sub-postmasters to rectify


           8       any fault and to pay up, that the individuals left in


           9       this trap -- we know through those comments, and as


          10       I ask and pray that you will go through the rest of


          11       those comments, you will see repeated references to


          12       "What could I do?"  "I didn't know what was happening,


          13       I thought it was somebody working with me."  Family


          14       members blamed family members, partners blamed each


          15       other.  They did not know what was happening within


          16       these Post Offices and that is a repeated and constant


          17       seam seen throughout those years.


          18           Those same issues were also brought to the attention


          19       of the Post Office by MPs.  For your note, bundle C2,


          20       page 1096 and -- 1095 and 1096.  Letters sent onwards by


          21       Mr Binley, Member of Parliament, to the Post Office.


          22       A similar letter from Dr Laydim(?) MP bundle C2, page


          23       1129.


          24           So the issues and themes that existed throughout


          25       were themes that were brought to the attention of the


                                            81





           1       Post Office by individuals that they were seeking to


           2       prosecute or considering the prosecution of.  They are


           3       the same themes that were discussed and discovered by


           4       Mr Justice Fraser, even though he only had a limited


           5       sample of individuals before him, the civil litigants,


           6       and these issues were also brought to the attention of


           7       the Post Office by Members of Parliament.


           8           Those issues amount then cumulatively to ignorance


           9       and confusion and a lack of understanding of what is


          10       happening on behalf of sub-postmasters.  The fear of


          11       losing their Post Office contract, the automatic


          12       assumption of sub-postmaster fault, a helpline designed


          13       to recover money, irrespective of fault, a union


          14       contracted to the Post Office and not to the support of


          15       the sub-postmasters.  No access to material that might


          16       help an individual sub-postmaster investigate,


          17       a Post Office "don't tell" secrecy policy, a culture


          18       which we say infected the entirety, as my learned friend


          19       put it, of the business.


          20           These failures and the failure of disclosure and the


          21       emphasis through their contractual obligations to the


          22       Post Office meant that individuals were led to cover up


          23       for apparent losses that they could not explain and


          24       indeed led to people not only not being able to


          25       understand what was going on but not telling, not saying


                                            82





           1       what has happened.


           2           Collectively, before this court, a number of us have


           3       had years of experience of dealing with applications to


           4       exclude evidence and dealing with applications to stay


           5       cases.  I doubt if any one of us has ever seen an entire


           6       system which embodies the victim, the brand and the


           7       prosecutor warped against its users and those it


           8       prosecuted to such a degree.


           9           I now turn to the Simon Clark advices and the


          10       assistance they may provide to this court in analysing


          11       what has happened.


          12           My Lord, I note the time.  It is coming up to 1.50.


          13       If I may stop at 1.00, unless you wish me to complete


          14       this particular section, I imagine I will be 20 minutes


          15       in all.


          16   LORD JUSTICE HOLROYDE:  Well, see how we get on, Mr Stein.


          17       We need to make good use of the time.


          18   MR STEIN:  By 2013, as stated by Mr Justice Fraser, the


          19       press had been reporting on Horizon bugs, flaws and


          20       questions, questions were being asked by MPs since 2009


          21       and the Post Office was firmly aware that they were


          22       going to be exposed.


          23           I have mentioned before, it is key to the


          24       understanding of this court that Mr Justice Fraser did


          25       not have the wealth of material that this court now has.


                                            83





           1       He didn't, as an example, have the CCRC analysis, and


           2       the numerous appeals.  In that sense, we submit that the


           3       rulings of Mr Justice Fraser are in fact a masterclass


           4       of understatement, given that, if he had the material we


           5       have, his comments already demonstrating an elegant and


           6       descriptive damning of the Post Office would have


           7       spirited him into a further call for those responsible


           8       for concealing the true extent of the faults of the


           9       Post Office to go into a handy police station as quickly


          10       as possible.


          11           Now, my learned friend has already examined, and


          12       therefore I will not repeat, some of the documentation


          13       that arose for consideration in 2013 within the


          14       Post Office.  I will therefore just very briefly refer


          15       to a document to be found at bundle A, 476.  Sorry, it


          16       is within the judgment of Mr Justice Fraser at A, 476.


          17           This is the part of the judgment where


          18       Mr Justice Fraser is referring to the comment made by


          19       Mr Wynne, already examined by my learned friend


          20       Mr Moloney, this is the "My instinct is that we have


          21       enough on without people asking us to look at things."


          22           Now, at paragraph 219, we see then there is


          23       a reference to Mrs van den Bogerd, sorry, agreeing in


          24       evidence that this was an inadequate response and then


          25       reading through there, we see that Mr Justice Fraser


                                            84





           1       deals with it this way:


           2           "By 2013, Horizon was an extraordinarily


           3       controversial subject.  There can simply be no sensible


           4       execution for the Post Office's failure to try and


           5       understand this particular subject.  This is


           6       particularly reprehensible given that an internal


           7       Post Office document in August 2013 showed that


           8       Mr Wynne's involvement in this was because his area of


           9       responsibility was as follows, resolving specific branch


          10       accounting issues."


          11           So we know, through this period of time, that by the


          12       time we get to the middle of 2013 the entire issue was


          13       under examination in public, or at least started to be


          14       fuller under examination in public at that time.


          15       Mr Justice Fraser did not have the Simon Clark advices,


          16       nor the surrounding material that we asked for and


          17       pressed for disclosure of in our disclosure management


          18       document at paragraph 36(2).  In our submission, the


          19       Simon Clark advices are helpful in understanding what


          20       the attitude of the Post Office was and its facility


          21       towards sub-postmasters.  It provides one further part


          22       of the story of assistance, as a litmus test on the


          23       consummate failure of the Post Office to consider


          24       anything like a proportionate, fair and honest system of


          25       disclosure.


                                            85





           1           So the clock has now ticked to 2013.  The


           2       respondents state as regards these appeals that any


           3       fault and any omission is only limb 1 abuse of process,


           4       not for everyone but the generality is that that is the


           5       way that respondents answer these matters, and the


           6       respondents say certainly not limb 2 in the vast


           7       majority of cases.  The respondents also say that, as


           8       regards the appeal, that because various bugs and issues


           9       occurred at different times, the appellants can be


          10       criticised for taking a whole case stance to the


          11       attitude of the Post Office and the failures in


          12       disclosure and investigation.  Yet the Post Office knew,


          13       hence its reluctance, to have the consideration of bugs


          14       and problems within the Horizon system, if widely known,


          15       would give rise to the wider suggestion that, if this


          16       bug exists, then the system is flawed.


          17           My Lady, in your discussions with my learned friend


          18       Mr Moloney Queen's Counsel, this was referred to as the


          19       attitudinal point.


          20           Within the statements made by Mr Jenkins or


          21       Ms Thomas, who were Fujitsu experts called by the


          22       Post Office to present the "no problem with Horizon"


          23       evidence, those witnesses said at the close of their


          24       statements, generally, that:


          25           "There is no reason to believe that the information


                                            86





           1       in their statement is inaccurate because of the improper


           2       use of the computer.  To the best of my knowledge and


           3       belief at all material times the computer was operating


           4       properly and, if not, any respect in which it was not


           5       operating properly or was out of operation was not such


           6       as to affect the information held on it."


           7           So it was known and understood that there was a need


           8       within criminal cases to make general comments about the


           9       operation of the system, the computer system.


          10           There are two Simon Clark advices.  Can I take you,


          11       please, first of all to bundle C, page 81.  Bundle C,


          12       page 81, this advice deals with the use of expert


          13       evidence in relation to the integrity of the Fujitsu


          14       Horizon system, and we will call this for the moment the


          15       integrity advice, as that is part of its title.


          16       Bundle C2, and the second advice is at page 1198.


          17           In order of context, the disclosure advice, the


          18       second advice, needs to be considered first.  As you


          19       will see, paragraph 1 refers to 3 July 2013, whereby the


          20       reference is made by Mr Clark to his attending the


          21       Post Office in conference at Post Office head office to


          22       consider issues relating to the Horizon computer system


          23       and the prosecution of criminal offences committed


          24       against POL by sub-postmasters and clerks.  Paragraph 2:


          25           "One of the topics considered by the conference was


                                            87





           1       of that disclosure and he advised that there ought to be


           2       a single central hub, the function of which was to act


           3       as the primary repository for all Horizon related


           4       issues.  The hub would collate from all sources into one


           5       location all Horizon-related defects, bugs, complaints,


           6       queries and Fujitsu remedies, thereby providing a future


           7       expert witness and those charges charged with disclosure


           8       duties with recourse to a single information point."


           9           So we know by this stage that no system had been


          10       established, as by 2013, when matters had been reported


          11       in the press, there were growing concerns, the problems


          12       with Horizon were coming out into the open, and there


          13       was a recognition by Mr Clark that there was no such


          14       system.  So despite the fact that we don't have all


          15       material, we know in fact here the description of what


          16       there wasn't within the prosecution of individuals that


          17       the Post Office had decided to bring before the courts.


          18           So we read on that, paragraph 3:


          19           "POL accepted that advice and, accordingly, a weekly


          20       conference call meeting was established so as to meet


          21       the requirement of the central hub.  Participants were


          22       informed that they should bring all Horizon-related


          23       issues they had encountered to the meeting, minutes were


          24       taken, retained and disseminated to those who required


          25       the information.  So far, to that extent, so good.


                                            88





           1       A late recognition of a failure of a system, the attempt


           2       to say this is what should happen in the future."


           3           Paragraph 4, therefore, refers to three such


           4       conference calls, each conducted on a Wednesday morning


           5       with a representative of Cartwright King solicitors


           6       attending each meaning, a minute-taker appointed for


           7       each call and I understand that each of the minute


           8       takers retained their own handwritten minutes.  By this


           9       stage we can see what is happening, this an attempt to


          10       say "Stop what we have been doing in the past because,


          11       frankly, we haven't been doing anything but putting


          12       ourselves forward with a fair and objective disclosure


          13       system".


          14           Paragraph 5 though instructs us how this is then


          15       dealt with by the Post Office:


          16           "At some point following the conclusion of the third


          17       conference call, which I understand to have taken place


          18       on the morning of Wednesday, 31 July, it became unclear


          19       as to whether to what extent material was either being


          20       retained centrally or disseminated, the following


          21       information has been relayed to me.  The minutes of


          22       a previous conference call had been typed, and emailed


          23       to a number of persons.  An instruction was then given


          24       that those emails and minutes should and have been


          25       destroyed.  The word 'shredded' was conveyed to me.


                                            89





           1       Handwritten minutes were not to be typed and should be


           2       forwarded to POL head of security.  Advice had been


           3       given to POL which I report as relayed to me verbatim.


           4       If it is not minuted, it is not in the public domain and


           5       therefore not disclosable.  If it is produced, it is


           6       available for disclosure.  If not minuted, then


           7       technically it is not.  Some at POL do not wish to


           8       minute the weekly conference calls."


           9           May I take you, just briefly, to page 1194.


          10       My Lord, I am going to go back to that reference after


          11       the luncheon break because I have a note is wrong.


          12           What we have therefore, within the disclosure


          13       advice, is both the setting up of a system, central hub


          14       system, and then we can see how it is dealt with by the


          15       Post Office.


          16           The Post Office reaction to the attempt to set up


          17       a system that might possibly deal with disclosure is one


          18       of dishonesty.  It is one of destruction of documents,


          19       it is of shredding of documents and, contextually, you


          20       cannot read this any other way.


          21           The point after the shredding paragraph,


          22       paragraph 1, at page 1199, is followed by:


          23           "Handwritten minutes were not to be typed and should


          24       be forwarded to POL head of security."


          25           Contextually, it cannot be said that is for


                                            90





           1       safekeeping.  Certainly the concerns, as expressed by


           2       Mr Clark, are that this was an attempt by members of


           3       staff within the Post Office to keep back material


           4       rather than put it forward.


           5   LORD JUSTICE HOLROYDE:  Shall with break off, there


           6       Mr Stein?


           7   MR STEIN:  Thank you.


           8   LORD JUSTICE HOLROYDE:  It might just be helpful to the


           9       court to have broad indication of proceeding this


          10       afternoon.  Mr Stein, how much longer will you be?


          11   MR STEIN:  My Lord, I hope to be concluded in the next


          12       15 minutes after resumption.


          13   LORD JUSTICE HOLROYDE:  Then Ms Busch, I think you are next?


          14   MS BUSCH:  Yes, I should be about half an hour to


          15       40 minutes.


          16   LORD JUSTICE HOLROYDE:  Then there will be brief submissions


          17       from others.  Inevitably the more submissions go on, the


          18       more ground will be covered by others.


          19           So Mr Altman, clearly you are not going to have


          20       a full afternoon, but you will at least be able to start


          21       this afternoon.


          22   MR ALTMAN:  I shall most certainly be part heard into


          23       tomorrow morning.


          24   LORD JUSTICE HOLROYDE:  We are in the position that the


          25       timetable was drawn up in necessarily broad terms


                                            91





           1       because it was very difficult to predict how long these


           2       arguments need to take, particularly -- we do have the


           3       advantage of Friday being available as an overflow if we


           4       need to.  But can I ask that is not taken as a general


           5       hint for everyone to double the length of their


           6       submissions.


           7           All right, thank you very much.


           8   A MEMBER OF THE PRESS:  My Lords, I am from the Press


           9       Association (Inaudible).  Can I ask very quickly, the


          10       respondent has indicated they have an objection in


          11       principle to skeleton arguments and opening (Inaudible)


          12       disclosed to the press, but I understand they want the


          13       court's approval about that.


          14   THE CLERK OF THE COURT:  My Lord, can I mention a similar


          15       request which we have received from a representative


          16       from the inquiry, a written enquiry, asking for


          17       disclosure of skeleton arguments.


          18   LORD JUSTICE HOLROYDE:  Yes, well, certainly thus far, there


          19       has been comprehensive reference to those documents.


          20       I just cannot imagine any objection to disclosure of


          21       them?  I see lots of head movement indicating that is


          22       so.  If any problem arises, no doubt it will be


          23       addressed on a specific occasion.


          24           But, in principle, we are at a stage where counsel,


          25       having helpfully prepare these documents, are referring


                                            92





           1       to them in sufficient detail.


           2   A MEMBER OF THE PRESS:  My Lord, sorry, does that also


           3       include the documents --


           4   LORD JUSTICE HOLROYDE:  (Inaudible).


           5   A MEMBER OF THE PRESS:  You know my interest in the Clark


           6       advice, and it has now been referred to.  Would that


           7       also be part of the documents, my Lord?


           8   MR ALTMAN:  My Lord, the Clark advice which has been


           9       referred to so far is the one of the 2 August 2013; the


          10       one Mr Wallace is interested in is the one of


          11       15 July 2013.  I don't know if Mr Stein is coming to


          12       that this afternoon or not?


          13   MR STEIN:  My Lord, I am.


          14   LORD JUSTICE HOLROYDE:  Mr Stein, can we short-circuit this;


          15       you are very likely, aren't you, to refer to those


          16       documents in considerable detail.


          17   MR STEIN:  Yes.


          18   LORD JUSTICE HOLROYDE:  Indeed, you have already done so.


          19   MR STEIN:  I am and, if it assists the court, my own view is


          20       that they will be covered in such detail as they should


          21       be, then disclosed.


          22   MR ALTMAN:  Can we revert at 2.00, please, or informally to


          23       Mr Wallace perhaps and then tell the court what we have


          24       said at 2.00.


          25   LORD JUSTICE HOLROYDE:  We will say 2.05.


                                            93





           1   (1.06 pm)


           2                    (The Luncheon Adjournment)


           3   (2.05 pm)


           4   LORD JUSTICE HOLROYDE:  Mr Altman, you wanted to come back


           5       on that point.


           6   MR ALTMAN:  My Lord, the press have been or will be given a


           7       summary of (Inaudible), and in terms of documentation


           8       referred to during the course of proceedings, the press


           9       will be given relevant documents which have been


          10       referred to, rather than the whole of bundle C.  Some of


          11       the material may not be referred to at all.


          12   LORD JUSTICE HOLROYDE:  Yes.


          13   MR ALTMAN:  Is that --


          14   LORD JUSTICE HOLROYDE:  For the avoidance of doubt, the one


          15       the Clark advice has already been referred to in


          16       extenso, as we used to say, and the other one shortly


          17       will be.


          18   MR ALTMAN:  Yes.


          19   LORD JUSTICE HOLROYDE:  All right.  Does that conclude that?


          20   MR ALTMAN:  As far as we are concerned, yes.


          21   LORD JUSTICE HOLROYDE:  You are happy?  Right, thank you


          22       very much.


          23           Mr Stein.


          24   MR STEIN:  Thank you, my Lord.


          25           We have been therefore examining the disclosure


                                            94





           1       advice and we have reached the point whereby we can see


           2       what is being discussed regarding the Post Office's


           3       expressed intention, or staff members within it, to try


           4       and keep back material.


           5           I referred, before the short adjournment, to a page


           6       number that I thought I had in error.  In fact, it is my


           7       own bad handwriting.  It is indeed page 1194, and the


           8       use of that is that at paragraph 4, at page 1199 of the


           9       disclosure advice, some at POL do not wish to minute the


          10       weekly conference calls.  We can see one of those


          11       conference calls at page 1194.


          12   LORD JUSTICE HOLROYDE:  Yes.


          13   MR STEIN:  In short, the weekly conference calls, including


          14       19 July and 24 July, these entries, clearly are


          15       reference to individuals who are reporting back as part


          16       of those calls, Gail, reference at 24 July, is referring


          17       to a branch blaming Horizon and connectivity.  A


          18       reference to:


          19           "Doesn't think that has been fully investigated.


          20       There is a settlement of a debt for 700, felt it was


          21       lost in flight transaction.  The branch can recall when


          22       Horizon system timed out.  Santander confirmed no double


          23       transactions take place, think the branch is genuine.


          24       Known to have POCA transactions lost in flight."


          25           The references within these documents are, it seems,