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       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 --


           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.


           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


           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


           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


           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


           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


           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


           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.


           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.


           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.


           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",


           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.


           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


           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:


           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.


           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?


           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,


           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


           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


           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


           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.


           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.


           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


           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:


           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


           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


           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


           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


           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


           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:


           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


           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.


           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,


           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


           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


           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


           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."


           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


           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


           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."


           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."


           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


           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


           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


           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.


           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


           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


           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


           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


           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


           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


           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.


           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,


           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


           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."


           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


           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.


           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


           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


           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.


           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


           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


           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


           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


           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."


           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


           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.


           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


           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.


           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


           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


           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


           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.


           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


           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.


           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


           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."


           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."


           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


           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


           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.


           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


           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.


           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


           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


           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.


           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.


           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


           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


           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


           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.


           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


           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,