This is the unperfected transcript from Court 4:
1 Tuesday, 23 March 2021
2 (10.30 am)
4 LORD JUSTICE HOLROYDE: Mr Altman, just before you start, as
5 everyone will be aware, there is to be a minute's
6 silence at noon to provide an opportunity for people to
7 remember those who have died over the last year of the
8 pandemic. To enable everyone to mark that occasion as
9 they wish, we will rise between 11.55 and 12.05. It is
10 likely to be you on your feet at that time, Mr Altman,
11 so perhaps you can time your submissions accordingly.
12 Just to remind everyone, those in this courtroom and
13 in the overflow courtroom, that if they choose to leave
14 the courtroom during that 10-minute period, they must of
15 course continue to observe social distancing and all the
16 usual precautions.
17 Thank you.
18 Submissions by MR ALTMAN (continued)
19 MR ALTMAN: My Lord, thank you. Continuing then from where
20 I left off last evening, can I come on to some general
21 observations on limb 2, before turning to the CCRC's
22 reasons, then the appellant's grounds.
23 Our submission is that no two cases are ever alike.
24 Whilst one might result in an adverse finding on limb 2
25 abuse of process in one of these cases, it will not
1 inevitably do so in another, given the need to weigh in
2 the balance relevant factors in each case.
3 My Lord, can I pause there. In the (Inaudible) as
4 have been exhibited by two of my friends, we feel it
5 would help the court if the court was to get a copy of
6 my speaking note. I am happy -- I have not been able to
7 do it before now, but if I can say by the end of the
8 day, or some time tomorrow, once I have tidied it up,
9 would that be a help?
10 LORD JUSTICE HOLROYDE: Yes, tidied or untidied, it would be
11 a very helpful document, Mr Altman.
12 Perhaps I could just mention, we have also received
13 a copy of a speaking note from Mr Saxby, who has yet to
14 address the court. I don't know whether that has
15 reached you or not, but that, too, is a helpful
16 document, and we are very grateful to everyone for
17 providing these.
18 MR ALTMAN: I wonder if Mr Saxby, wherever he is, could find
19 a way to getting a copy to us?
20 LORD JUSTICE HOLROYDE: I think he is attending by CVP, but
21 no doubt he can hear what is being said.
22 MR ALTMAN: Thank you.
23 I am told they are absent this morning.
24 LORD JUSTICE HOLROYDE: You are quite right, they are absent
25 until this afternoon.
2 MR ALTMAN: A number of cases have been referred by the
3 commission to this court with the same basic reasons.
4 They were prosecuted by the same prosecutor, albeit
5 under different company names, either side
6 of April 2012, after the separation of Royal Mail and
7 Post Office Limited. They come before the court at the
8 same time for good reason.
9 We submit that does not mean that the outcome in the
10 other cases might all be the same.
11 The time factor is of significance here. What might
12 be argued could result in an adverse finding, say in
13 2010, given the increasing awareness about Horizon
14 issues, will not necessarily be true of a case that was
15 prosecuted, say, in 2001. Time specificity must not
16 only have regard to when a problem is raised, but also
17 to the full history and chronology of the issues so as
18 to see whether, at the relevant time, the Post Office
19 might have had reason to suspect there was any active
21 Again, it is only by detailed and fact specific
22 analysis that one can see whether, in any given case,
23 there was any knowledge of Horizon issues in the mind of
24 the prosecutor that would render their decision to
25 prosecute offensive to justice. Thus it is our
1 principal submission that, as regards limb 2, the court
2 should, we say with respect, resist adopting, as it
3 were, a one size fits all approach to cases with
4 different facts, separated in some cases by 13 years.
5 This is not to say -- and we have made this clear
6 before and I repeat -- that the respondent is seeking to
7 argue for a case specific analysis for every one of
8 these cases now. He may claim not only does he
9 recognise, but also support the desire for there to be
10 finality to these appeals, but not a globalised route to
11 limiting findings across the board.
12 Our submission is that poor investigation and
13 non-disclosure alone do not go beyond limb 1 abuse, such
14 that it may inexorably lead, or leads, to the same
15 outcome in every case, so far as limb 2 goes.
16 However, where limb 2 is concerned, we submit there
17 has to be something that goes beyond the unfairness in
18 the trial process, reflected by limb 1, allowing the
19 court to say that there was prosecutorial misconduct in
20 the prosecution and conviction of each of these
21 appellants on the facts of their cases of a kind that
22 amounted to an affront to the public conscience.
23 We say that the broadbrush globalised approach,
24 however attractive, which is the approach the court is
25 being invited to take, can't achieve a just outcome.
1 So, with those thoughts in mind, may I turn to the
2 CCRC's reasons?
3 The first point we make about the CCRC reasons on
4 limb 2, we have to bear in mind, is the commission's
5 statement of reasons that bring all these cases before
6 this court on which the appellants have founded their
7 grounds and their arguments.
8 With no disrespect to the CCRC intended, the
9 statements of reasons do not contain any careful
10 analysis of the facts of the individual referred cases.
11 The court will be familiar with the statements of
12 reasons and their design. The CCRC grouped the cases
13 together under different heads. The court will
14 remember -- and I can give the references, you don't
15 need to look at them, but, in bundle A, tab 1, page 54,
16 applicants who were convicted after a trial on a not
17 guilty plea.
18 Bundle A, tab 1, page 60, applicants who pleaded
19 guilty to false accounting. In fact, it also included
20 some allegations of fraud.
21 Bundle A, tab 1, page 74, applicants who pleaded
22 guilty to theft.
23 Three groups of the applicants who originally came
24 within the purview of the first statement of reasons, in
25 arriving at the CCRC's decision, there was a real
1 possibility the convictions would be overturned by this
2 court if referred.
3 Its conclusion, the CCRC's conclusion at
4 paragraph 124 of its reasons, bundle A, tab 1, page 51,
5 which falls under their heading of limb 2, is that --
6 and if the court want me to take it to these passages
7 I will, but your Lordship made clear yesterday you were
8 familiar with the statements of reasons:
9 "It was an affront to the public conscience that to
10 bring proceedings in any case where the reliability of
11 Horizon data was essential to the prosecution case when
12 viewed in the eventual context against the Post Office
13 applicant in question."
14 It took, itself, a global approach to the balancing
15 exercise, as is clear from what it says at
16 paragraph 130, at page 52, tab 1, bundle A:
17 "The CCRC remains of the view that the High Court's
18 findings give rise to a cogent argument ..."
19 I will pause there, if your Lordship wishes to --
20 LORD JUSTICE HOLROYDE: Yes.
21 MR ALTMAN: Bundle A, tab 1, page 52.
22 LORD JUSTICE HOLROYDE: Thank you very much.
23 MR ALTMAN: Paragraph 130, and it is the last five lines of
24 that paragraph:
25 "The CCRC remains of the view that the High Court's
1 findings give rise to a cogent argument that individual
2 Post Office prosecutions in which the reliability of
3 Horizon data was essential to the prosecution case when
4 viewed in the evidential context were an affront to the
5 public conscience and should not have been brought."
6 Further up that paragraph is a balancing exercise in
7 which the CCRC said they didn't consider:
8 "The offence types in these cases false accounting,
9 fraud, or theft, often involving substantial sums of
10 money, were so serious that this court would necessarily
11 conclude that they outweigh any arguable setting out as
12 to abuse of process."
13 Now, the CCRC doesn't say what "when viewed in the
14 evidential context" means in each case, given there was
15 no close case specific analysis of the facts in the
16 statements of reasons. It is a generalisation, and we
17 have taken it to mean no more than what is said by the
18 CCRC, at paragraph 124. So, the court has it open --
19 turn back to page 51:
20 "When those findings are considered in the round.
21 The CCRC considers that there is a cogent argument that
22 was (Inaudible). It was an affront to the public
23 conscience for the Post Office to bring criminal
24 proceedings in any case where the reliability of the
25 Horizon data was essential to the prosecution case, or
1 when viewed in the evidential context against the
2 Post Office applicant in question."
3 There are, we submit, clear dangers in taking such
4 an approach to different cases over the period of time
5 that this court is dealing with. The dangers of it are
6 demonstrated in the CCRC's own reasons, at
7 paragraphs 127 and 128. All of this under the heading
8 which is found at page 50 in effect (Inaudible).
9 There the CCRC combined what it characterised as
10 concerns, that it noted with concern, paragraph 127,
11 four lines down:
12 "... concerns it had in relation to alleged
13 deliberate non-disclosure and the allegation in the
14 contract was routinely and comprehensively overstated to
15 reason that where the Post Office [the respondent] was
16 victim, investigator, and prosecutor in those cases it
17 'Consciously deprived' the defendants and the courts of
18 a full and accurate understanding of reliability of
19 Horizon and that it behaved oppressively to postmasters
20 by overstating their contractual obligations."
21 We have made these points before in the respondent's
22 notices, but can I be forgiven for just taking the court
23 through them now? Because they are important.
24 The first concerns 1271, the Post Office
25 deliberately chose not to disclose full details of
1 defects in Horizon because they might have an impact on
2 ongoing legal cases. There is a reference there to
3 paragraph 457 of the Horizon issues judgment.
4 The background, the factual background to that
5 reasoning is to be found in section 1(c) of the
6 statement of reasons. I am not going to invite the
7 court to go to it, but you will find that at pages 24
8 and 25 of the statement of reasons, paragraph 60 and
10 I am going to summarise it for the court, just to
11 save time. Where at paragraph 60, subparagraphs (1),
12 (2) and (3), the CCRC talks about the receipt and
13 payments mismatch bug.
14 Paragraph 4, they talk about Fujitsu being less than
16 Paragraph 5, its concerns about the veracity of
17 Fujitsu employees.
18 6, the peak in 2007, where the branch was not told
19 about that particular problem.
20 Paragraph 7, on page 26, or subparagraph 7, calendar
21 square, Fujitsu knew since 2006, and we can take
22 calendar square of an example of this bug, existed in
24 8, Fujitsu (Inaudible) personnel routinely referring
25 documents to the known existence of bugs without being
1 communicated to the sub-postmaster.
2 9 and 10, a theme contained within some of the
3 internal documents, extreme sensitivity seeming to verge
4 on cogency(?) of institutional paranoia concerning any
5 information that may throw doubts on the reputation of
6 Horizon or expose it to further scrutiny.
7 The reference there is to paragraph 946 of the
8 Horizon issues judgment.
9 So, it is on that basis, and against much of that
10 background, that if one goes back to paragraph 127,
11 tab 1, on page 52, it appears that the CCRC concluded
12 that the Post Office deliberately chose not to disclose
13 full details of defects, but these are the important
15 "Because they might have an impact on ongoing legal
17 If the court wishes, as it were, to have a side
18 note, paragraph 457 is to be found -- it is the Horizon
19 issues judgment at tab B, tab 1B of bundle A, and
20 page 544. Here you find (Inaudible) which your Lordship
21 and my Lady will be aware of from everything you have
22 heard read, but the source of that was the receipts and
23 payments mismatch issue loans, which you can see at 457,
24 Mr Justice Fraser's judgment in the Horizon issue trial.
25 To see, he says three lines down, at the end of the
2 "To see a concern expressed, if the software bug in
3 Horizon were to become widely known, it might have
4 a potential impact upon ongoing legal cases where the
5 integrity of Horizon data was essential ..."
6 It is a very concerning passage to read in
7 a contemporaneous document:
8 "Whether these were cases concerning the civil
9 claims or criminal cases, there are obligations on
10 parties in terms of disclosure. As far as criminal
11 cases are concerned, these concern the liberty of
12 a person and disclosure ...(Reading to the words)... in
13 these documents hidden from view. Regardless of the
14 motivation, doing so was wholly wrong."
15 So, that is the source of the CCRC's reasoning or
16 the fundamental source of what they have to say at 1271,
17 page 52, tab 1, bundle A.
18 However, what the CCRC didn't go on to do was to
19 explain how what happened in September
20 and October 2010 -- in other words the issue notes,
21 which I will refer to by the wording which I have
22 invited the court to consider -- is how they comply or
23 any analysis of the issue, of documents raised in all of
24 these individual cases. The receipts and payments
25 mismatch bug was referred to in Mr Justice Fraser's
1 technical accounts, and we can find it in my second
2 bundle, the A bundle, behind tab 1C, at page 720.
3 One needs to go to page 753 in the technical
4 appendix to find reference to the receipts and payments
5 mismatch bug. This is Mr Justice Fraser's first of 29
6 or 30, depending on which way you look at the numbering,
7 to be found in the Horizon issues judgment.
8 Paragraph 128, the bug occurred in 2010, and it is
9 a bug which appeared in Horizon online. So, what that
10 means is it had no direct impact on Legacy Horizon
11 cases, in other words the Horizon system before
13 In paragraph 129 of the second limb appendix,
14 Mr Justice Fraser tells us the effect of this bug issue
15 was identified on the accounts of approximately 60
16 branches. The court will remember me saying yesterday
17 in relation to (Inaudible) that it was Gareth Jenkins
18 who had been told Second Sight for the purposes of the
19 interim report of late July 2013, about receipts and
20 payments mismatch (Inaudible) which affected about 60
21 branches. So that is the same bug that
22 Mr Justice Fraser is referring to here.
23 If one goes to paragraph 131 in the appendix:
24 "The bug related to the process of moving
25 discrepancies into the local ...(Reading to the
1 words)... The majority of incidents are recorded as
2 occurring between August and October 2010. The bug was
3 documented in a report from Mr Gareth Jenkins, dated
4 29 September 2010."
5 He quotes from it.
6 Can we move, please, to page 756, at paragraph 139?
7 One doesn't perhaps need to go into the technical stuff
8 too much, but it is the third line:
9 "This led eventually, on 5 October 2010, to the
10 entry peak of product error fix after a patch had been
11 released. The patch displaced the change or set of
12 changes to a programme or its supporting data and is
13 something that changes the operation of the software."
14 I don't need to go to the summary of bugs, which you
15 will find in your bundle B. But, in summary, that is
16 exactly what Mr Justice Fraser summarised as the effect
17 of the bug. Its effects occurred between August -- the
18 majority of them between August and October 2010, and it
19 was fixed around October 2010.
20 So, the important point is the bug which appears in
21 Horizon online, no direct applicability to a number of
22 these cases involving shortfalls in the branches running
23 Legacy Horizon. The CCRC rely on this clearly as
24 a finding because it was one of two concerns which they
25 described in the statement of reasons which I have taken
1 the court to, paragraph 127(1).
2 LORD JUSTICE HOLROYDE: Mr Altman, I understand, of course,
3 the broad point you are making. Is it accepted by the
4 respondent that this particular bug was relevant to any
5 of the appeals?
6 MR ALTMAN: It was only relevant in the way that we have
7 conceded and accepted it as long ago as the respondent's
8 notice, that it should be considered for disclosure,
9 ought to have been disclosed in Ms Misra's trial.
10 You will remember we have (Inaudible) notes which
11 are dated, it's thought around September/October 2010.
12 Then there is that email exchange, that you will also
13 remember, of 8 October 2010, in which Alan Simpson, who
14 was one of those present at the meeting, emailed
15 Rob Wilson, the head of the criminal department, and
16 Jarnail Singh and Julia Patalay(?), (Inaudible), and you
17 will also remember Mr Simpson expressed his concern
18 about repercussions on other cases, which your Lordship
19 adverted to yesterday.
20 Now, at Mrs Misra's trial began on 11 October, days
21 afterwards, so it is entirely conceivable, even
22 though -- and Ms Misra's case was about Legacy Horizon.
23 The indictment dates in her case were between middle
24 of June 2005 and 14 January 2018. That was
25 Legacy Horizon, so a bug which appears in Horizon online
1 cannot have any direct application to a previous
2 iteration of the Horizon system. But anyone who had or
3 should have applied their mind to the concerns which
4 were expressed and known about in Post Office security
5 and in the (Inaudible) as we have accepted, they should
6 have applied their minds to it, they should have
7 considered the disclosure and, our submission is it
8 should have been disclosed in Ms Misra's trial, and it
9 ought to have been disclosed, or considered for
10 disclosure, I should say perhaps more accurately, in all
11 cases following thereafter. We have made that plain in
12 the past.
13 LORD JUSTICE HOLROYDE: Yes.
14 MR ALTMAN: The why, the why it didn't happen, we have set
15 out, you may recall, in our short response skeleton of
16 8 January. We don't know. Was it incompetence? Was it
17 individuals not understanding their duties? Or was it
18 deliberate? There is no evidence before the court to
19 say which it was, but the plain fact of the evidence is
20 it was not disclosed and, in Ms Misra's case in
21 particular, that is recognised as part of the overall
22 concession in her case.
23 Hers is a particularly bad example when compared to
24 (Inaudible) of non-disclosure, given that one could say
25 that Ms Misra's trial was the high-water mark of
1 litigation on issues of Horizon integrity. Therefore
2 anyone should be on notice of the important issues which
3 were being played out in her trial, when not only
4 Gareth Jenkins was called on behalf of the Post Office,
5 but Professor McLachlan on behalf of Ms Misra, but it
6 wasn't and it ought to have been. That, we say, is part
7 of -- we don't seek to trivialise it at all, but that is
8 all part of the limb 1 discussion.
9 LORD JUSTICE HOLROYDE: But we can take it, can we, that no
10 document you want to draw to our attention in which
11 those in authority, in the relevant prosecutions
12 department, met the revelation of this bug and its
13 non-disclosure with letters of protest saying, "What on
14 earth are you doing not complying with your clear duties
15 of disclosure?"
16 MR ALTMAN: As your Lordship knows, this has been
17 (Inaudible) an extensive post (Inaudible) disclosure
18 exercise, between 3 and 4 million documents have been
19 looked at.
20 LORD JUSTICE HOLROYDE: Yes.
21 MR ALTMAN: No one has brought to my attention any document
22 that explains, one way or the other, why it happened,
23 why it didn't happen. Or, to answer your Lordship's
24 direct question, there were no protests, nothing of that
1 But here is the important point: this is all
2 happening in October 2010. One can look forwards, if
3 the court wishes, and ask the question, balancing all
4 the factors, for example, in Ms Misra's case, does that
5 amount to abuse in her particular case, given the nature
6 of her defence, the nature of the issues, and the
7 importance, or not, of the RPM bug in particular or
8 generally to the overview of the integrity of the
9 Horizon system.
10 That on its own facts is open to the court to
11 adjudge. What, with respect, one can't do, is look
12 backwards and say before that bug arose in Horizon
13 online, in 2010 -- one cannot look backwards and say it
14 impacted on 10 years' worth of cases before then. That
15 is the problem and one we are trying to illustrate.
16 MR JUSTICE PICKEN: Can I just ask you, your launchpad for
17 your submissions so far this morning is paragraph 127.
18 MR ALTMAN: Yes.
19 MR JUSTICE PICKEN: That is a paragraph that begins with the
21 "Furthermore ..."
22 MR ALTMAN: Yes.
23 MR JUSTICE PICKEN: It then says you don't need time "to
24 backdate, but ..." and then it says what it says.
25 MR ALTMAN: Yes.
1 MR JUSTICE PICKEN: But it follows, at paragraph 124, which
2 you took us to, which begins with:
3 "In the CCRC's view the High Court finding is
4 summarised at paragraph 112 above are no less important
5 to the consideration of whether there has been a second
6 category abuse of process.
7 "When those findings are considered in the
8 round ..."
9 Then it says what it says.
10 If you then go back to paragraph 112, which is
11 page 47, you see there that it lists a number of
12 findings of Mr Justice Fraser, including that
13 Legacy Horizon was not remotely robust, the first
14 iteration of Horizon online was slightly more robust,
15 and so on.
16 I am just drawing this to your attention because it
17 would be wrong, wouldn't it, for us to proceed on the
18 basis that what the CCRC says about the second category
19 of abuse is founded only on a paragraph beginning with
20 the word "Furthermore"?
21 MR ALTMAN: I am not saying that, and I was going to make
22 clear what my case, but I am not saying that, about
23 these are two very important features which did
24 influence the CCRC's reasons under limb 2.
25 In actual fact, of course, if one goes to
1 paragraph 112, as the CCRC itself makes plain, they
2 support limb 1 side of things as much as they do
3 anything else. We say actually (Inaudible) they're
4 limb 1 and not limb 2. But what tipped the balance, we
5 suggest, of the CCRC were these two particular concerns
6 and I will show you why in a moment.
7 But your Lordship is absolutely right, I don't want
8 for one second the court to run away with the idea that
9 it is just about 127, it is not. Of course there are
10 other findings, and they make clear, as I will show you
11 in a while, that when they conclude in relation to each
12 grouping, they state the numerous significant findings
13 in the High Court judgment. But, in particular, they
14 rely on the two concerns, and that is why we say it is
15 so important to just stand back and look at what
16 persuaded the CCRC, as your Lordship puts it, the
17 platform on which I am launching this particular
19 MR JUSTICE PICKEN: Thank you.
20 MR ALTMAN: Now, the other (Inaudible) is that, in actual
21 fact, when one analyses paragraph 457 of the Horizon
22 issues judgment, the one where Mr Justice Fraser makes
23 a series of comments, right comments -- nobody is
24 criticising him, but comments is what they were. They
25 were not findings and they were not material to the
1 Horizon issues (Inaudible), and so we submit it is
2 important that distinction is borne in mind.
3 So, when one thinks about the date in which the
4 receipts and payments mismatch bug arose in 2010, the
5 Post Office couldn't obviously disclose something to
6 applicants or those who came before because it had not
7 existed, and it is easy to overlook -- as we suggest the
8 CCRC itself did -- that fundamental truth.
9 The first point we make is that to refer to the
10 judge's comments as signifying, as the CCRC did, that
11 the respondent consciously deprived defendants and the
12 courts of a full and accurate understanding of the
13 reliability of Horizon, as fairly representative of the
14 Post Office's approach to disclosure during its criminal
15 prosecutions, in all cases over all time, is not right.
16 One could criticise the Post Office for what
17 happened after this particular event, but what one
18 cannot do, with respect, is to apply it retrospectively.
19 LORD JUSTICE HOLROYDE: One cannot apply retrospectively in
20 the sense, as you have just said, before 2010 there
21 wasn't anything to disclose in this particular respect.
22 But you will no doubt want to come on, at some point in
23 your submissions, to address Mr Stein's submission that,
24 even in 2013, Mr Clark was still having to give what
25 might be thought to be pretty rudimentary advice about
1 the disclosure duties.
2 MR ALTMAN: I am going to come on to that.
3 LORD JUSTICE HOLROYDE: Okay.
4 MR ALTMAN: The use of the word "conscious" to describe the
5 deprivation, suggests the CCRC were saying not just the
6 Post Office lawyers, but also their agents and counsel,
7 had knowledge, some knowledge or awareness, at the time
8 of the individual proceedings that they were depriving
9 defendants, not just those going forwards, but all those
10 going backwards in the course of a full and accurate
11 understanding of the reliability of Horizon over all
13 The point, focusing for the moment on the receipt
14 and payments mismatch bug in the autumn of 2010, the
15 point is that when the court is determining, as
16 I already said, the issue of whether what happened in
17 Ms Misra's case and any cases thereafter, whether that
18 amounted to limb 2, its non-disclosure was such that it
19 amounted to an affront to the public conscience, the
20 court doesn't know whether it was just plain
21 incompetence or whether it was entirely deliberate.
22 The court doesn't know whether there was some
23 overreliance on Fujitsu in relation to all other issues
24 which have been submitted about yesterday, or
25 an assumption about Horizon's reliability that later
1 proved unreasonable. Because, like any system, like any
2 IT system, they have glitches and bugs. The question
3 is: at what point does a system like that prove to be so
4 unreliable and so lacking robustness -- not used as
5 an ordinary term of English, but used in the way that
6 Mr Justice Fraser used it in the Horizon issues
7 judgment, in paragraphs 36 to 56. How does anybody know
8 at what point -- how does one judge at what point, if it
9 was reasonable to rely upon Horizon and make assumptions
10 about its reliability, at what point that was no longer
12 The cases -- if I may select them just as examples,
13 as I did yesterday -- of Ms Misra, Ms Felstead, and
14 Ms Skinner are good examples of the dangers at the
15 time, submitted about to the court, and how just using
16 that above, and the CCRC's approach to this aspect has
17 underlined its reasons on limb 2 without any trace of
18 analysis can lead to unjust results on limb 2. The
19 first one to remind you of is Ms Misra pleading guilty
20 to false accounting in March 2009. She was later
21 convicted of theft at a trial, in October 2010.
22 If the court were to arrive at the conclusion, by
23 way of example, of Ms Misra's conviction for theft is
24 unassailable on grounds of limb 2, in light of the
25 failure to disclose the RPM bug before or during her
1 trial in the issues being litigated, the same simply
2 cannot follow in respect of her pleas of guilty to false
3 accounting, which were entered long before the RPM bug
4 had appeared in Horizon online and before Fujitsu and/or
5 Post Office discussed its impact on future cases
6 in September/October 2010.
7 If the court was to find that the RPM bug issue led
8 to Ms Misra's conviction of theft being held to be
9 unsafe on grounds of limb 2 abuse, that finding simply
10 cannot apply to her pleas in March the year before.
11 Equally, that bug, as everyone acknowledges, cannot
12 have been disclosed in the cases of Ms Felstead, who was
13 convicted in 2001, and Ms Skinner in 2007. It had no
14 bearing on their cases.
15 That is why we say it is important, and entirely
16 accepting what my Lord, Mr Justice Picken, said about
17 what the CCRC relied upon. But our submission is these
18 two issues of concern furthermore appear to be tipping
19 points for the CCRC with a view to Horizon. I come --
20 not yet, but I will -- to paragraph 128.
21 Before I do, can I deal with the second point of
23 That the CCRC dealt with the Post Office, continuing
24 comprehensively, overstated the contractual obligations
25 on the sub-postmasters to make good losses. I am
1 reading from 127(2), at page 52:
2 "The High Court concluded there was no excuse for
3 this, that it must have been ...(Reading to the
4 words)... sub-postmaster to believe they had no choice
5 but to pay, and really was 'oppressive behaviour' by the
6 Post Office."
7 There is then a reference to two paragraphs of the
8 common issues judgment, paragraph 222, and
9 paragraph 723.
10 The basis for this, again using the statement of
11 reasons at bundle A1, is to be found at page 78.
12 This is all part of -- I think I may have given you
13 the wrong reference. Forgive me, it is page 36.
14 You will find the heading at H, section 1 of the
15 reference. Paragraph H. There you will find over those
16 few paragraphs reference to that second concern.
17 If one looks at the top of page 37:
18 "The CCRC does make clear, we will see in square
19 brackets, in relation to a letter sent to a particular
20 sub-postmaster, Mr Sabir(?), in January 2010, and this
21 is where the CCRC take the quotation, at paragraph 222
22 of the common issues judgment:
23 "There can be no excuse, in my judgment, for
24 an entity such as the Post Office to misstate in such
25 clearly expressed terms, in letters that threaten legal
1 action, the extent of the contractual obligation on
2 a sub-postmaster for the losses.
3 "The only reason for doing so, in my judgment, must
4 have been to ...(Reading to the words)... to believe
5 that they have absolutely no option but to pay the sum
7 And this is where those words come from:
8 "It is oppressive behaviour."
9 Then, at paragraph 79, Mr Justice Fraser's finding
10 that the Post Office behaved oppressively towards
11 sub-postmasters by routinely overstating the
12 sub-postmasters' contractual obligation for branch
13 losses provides, in the CCRC view, further important
14 context to the criminal prosecutions of sub-postmasters.
15 The CCRC observed that it reinforces other findings of
16 Fraser J in (Inaudible) 63 and 64 above. If you just
17 flick back momentarily to those, they found the head of
18 Post Office adopting the default position, that
19 sub-postmasters must be responsible for the level of
20 investigation by the Post Office and Fujitsu
21 (Inaudible), which has been conceded.
22 But it was the default position of Post Office to
23 hold (Inaudible) postmasters' response more for
24 discrepancies, and that this assumption operated in the
25 place of an objective and thorough investigation into
1 the possible cause or causes of apparent branch
2 shortages. Now, I repeat that has been part of the
3 concession on all the limb 1 cases.
4 The factual background to this hiving is, and I am
5 not going it take your Lordship and my Lady to
6 paragraphs 221 and 222, in fact, of the common issue
7 judgment, but I will give you the reference. It is
8 bundle A, tab 1, letter (a), at page 169.
9 The background to the finding is that, in early
10 2010, the Post Office had been seeking to recoup and
11 then sue Mr Mohammed Sabir, who happened to be one of
12 the lead claimants in the group litigation. Mr Sabir
13 was never prosecuted, far less convicted of any
14 allegations. But it was over some £360, and the letters
15 sent to him referred to the sub-postmasters' contract as
16 rendering him liable to make good any losses which, as
17 Mr Justice Fraser said, was a mistake. He, as we see,
18 determined that the behaviour that led recipients to
19 believe they had absolutely no option but to pay the
20 sums of money was, as he put it, "oppressive".
21 The only other finding in the case which may be of
22 relevance to this clause is in relation to Ms Stubbs,
23 who was another lead claimant. There was no (Inaudible)
24 demand in her case, but it was a case in point
25 (Inaudible) for the claimants, which Mr Justice Fraser
1 had something to say about, at page 151 of the common
2 issues judgment.
3 The other thing that he did make clear -- and it is
4 the paragraph which the CCRC themselves refer to at the
5 other paragraph 723 of the common issues judgment -- is
6 that the criticism of Post Office's behaviour in this
7 regard was identified, as he put it, "in the cases of
8 the lead claimants".
9 So, when one puts that in its proper context, and
10 while I am not standing here defending any of the
11 criticisms he made, as it were, or defending the
12 Post Office against criticisms he made, it is important
13 to recognise that the criticisms and the words
14 "oppressive behaviour" referred to the case in
15 particular of Mr Sabir, in respect of whom he made
16 a finding as being one of the lead claimants. He was
17 not making a generalised globalised judgment on this
18 issue in relation to anyone else, I accept.
19 My Lord wants to ask a question?
20 MR JUSTICE PICKEN: Only this: I am looking at the earlier
21 paragraphs of the common issues judgment. My
22 understanding is that the lead claimants were selected
23 through a process of putting forward representative type
24 claims, so as to avoid having to deal with 550-odd
1 MR ALTMAN: I agree. But your Lordship is absolutely right.
2 But, by the same token, but for the second there would
3 have been individual trials thereafter. I am not going
4 to pray that in aid for obvious reasons, but it is
5 a fact that is how the trial process in these issues
6 were going to go.
7 Your Lordship is right, but my point is perhaps
8 a general one, that Mr Sabir -- what the CCRC had
9 reminded him of was a finding in relation to Mr Sabir,
10 and there was no other evidence about which I suggest,
11 Mr Justice Fraser would say oppressive behaviour, other
12 than by reference to Mr Sabir's case, and it was. But
13 to extrapolate from that and, as it were, say that
14 finding, if it was a finding, can apply across the board
15 to all of these appellants without analysis -- that is
16 my real point, without analysis -- is another matter.
17 MR JUSTICE PICKEN: But paragraph 723, subparagraph (1), as
18 you acknowledge, says:
19 "This was routinely and comprehensively ignored by
20 the Post Office."
21 MR ALTMAN: It does.
22 MR JUSTICE PICKEN: I think it is fair to say there were
23 attempts to challenge this judgment, at a number of
24 letters, and I am not aware -- anyway, they didn't go
1 MR ALTMAN: You are right about that, too. It didn't go
3 But all I am submitting is one has to take great
4 care before applying that kind of finding across the
5 board to everyone.
6 In other words, what the CCRC was influenced by was
7 what they understood to be oppressive behaviour of that
8 particular kind and, without case sensitive analysis of
9 individual cases, how can one be confident that kind of
10 oppressive behaviour applied across the board in every
12 MR JUSTICE PICKEN: That section, that 723 is part of, is
13 a section headed:
14 "Related contracts."
15 It concerns matters such as imbalance of contractual
16 bargaining power had at 722. So, it was treated by all
17 parties before Mr Justice Fraser as a point of general
18 application. It is in that context that he makes the
19 finding of routine and comprehensive ignoring.
20 MR ALTMAN: Your Lordship is right. But this is a criminal
21 case, and a criminal case where the appellants --
22 I don't want to be overtechnical, but it is the law, the
23 burden on abuse of process. In order to say to the
24 court that, in my particular case, the Post Office was
25 guilty of that kind of oppressive behaviour, one would
1 have to find it within the facts of the case.
2 MR JUSTICE PICKEN: But you acknowledge that, but you are
3 not in a position to say: oh, no, no, it is only those
4 two lead claimants that the Post Office adopted this
5 particular line with; everyone else they were completely
6 and utterly --
7 MR ALTMAN: I am not saying that.
8 MR JUSTICE PICKEN: Of course not.
9 MR ALTMAN: I am looking at the judgment on which great
10 reliance is placed.
11 MR JUSTICE PICKEN: You are not saying it for perfectly
12 understandable reasons, but then to put the burden of
13 proof point forward, even acknowledging this is criminal
14 and not commercial may be said to have its limitations.
15 MR ALTMAN: I said I didn't want to be guilty of making an
16 over-technical point and your Lordships may look at it
17 slightly differently, but the court has my point, that
18 care has to be taken before adopting such
19 generalisations to all cases.
20 There is a better point I can make, and it is this:
21 what Mr Justice Fraser said about the sub-postmasters'
22 contract not only applies to sub-postmasters, what it
23 doesn't apply to are the 11 appellants before the court
24 who were not sub-postmasters. They were, for example,
25 managers, and can they forgive me, please, for using
1 just surnames.
2 Holmes, Gill, Capon, O'Connell, Graham, and Hussain,
3 one of the opposed cases, they were all managers, not
4 sub-postmasters or subject to sub-postmasters' contract.
5 Counter clerks: Felstead and (Inaudible). Officers
6 in charge: Irwin and Howard, and one sub-Post Office
8 So, even if one took the point, routine,
9 comprehensive, oppressive behaviour, all the points
10 my Lord Mr Justice Picken has thrown back at me, which
11 I am prepared to accept, they cannot apply to the 11
12 appellants' fraud, who were simply not subject to that
13 contract. Yet again the CCRC made no such distinction.
14 One comes then to paragraph 128, as I said I would,
15 of the reference. Behind tab 1, bundle A, at page 52.
16 This is how 128 reads:
17 "The CCRC is concerned by this evidence that
18 Post Office, which was victim, investigator, and
19 prosecutor in the case in question, consciously deprived
20 defendants and the courts of a full and accurate
21 understanding of the reliability of the Horizon system,
22 that it behaved oppressively to sub-postmasters by
23 overstating their contractual obligations."
24 So, the CCRC has placed some reliance on those two
25 concerns, subject to all the limitations that we have
1 (Inaudible), but placed some reliance, some weight in
2 arriving at its view. But all of those matters in
3 paragraph 112 were not only matters which went to
4 limb 1, but, in addition to that, went to limb 2.
5 We can see that the permission relied on the
6 numerous significant findings. As I have said,
7 I concede it is not just about this, though this was
8 influential. Its concerns about those two particular
9 findings because it applied them to the groupings of
10 cases before it. In two cases explicitly, and in one
11 I suggest implicitly. If we can go, please, within the
12 reference to the same tab, it is page 60.
13 This is part of the subheading of applicants who
14 were convicted after a trial on a not guilty plea, and
15 paragraph 159. If one looks at the top of the page,
16 four lines down:
17 "In the context of the numerous significant findings
18 between the Post Office and the High Court's judgments,
19 including the two particular findings, which are set out
20 in paragraph 127(5) above, the CCRC considers there to
21 be a real possibility that the ...(Reading to the
22 words)... will conclude, in the words of Lord Steyn, it
23 was an affront to the public conscience for criminal
24 proceedings to take place in all these (Inaudible)."
25 For example, if we go back a single page, to
1 page 59, paragraph 158, there, just by way of example,
2 at subparagraph 1, the trials in these two cases took
3 place in 2001 and 2003. Well, the first of those
4 findings cannot possibly have applied.
5 Then, if the court will please move on to page 73,
6 where CCRC is dealing with its conclusions on guilty
7 pleas supporting guilty cases, paragraph 176. We find
8 much the same sort of framework:
9 "Even where the Post Office applicants have admitted
10 to entering false figures in branch accounts in order to
11 conceal apparent shortfalls, the CCRC considers that in
12 the context of the numerous significant findings against
13 the Post Office in the High Court's judgment, including
14 two particular findings set out at paragraph 127 ..."
15 And so on and so forth.
16 Then, finally, in this regard, page 79, CCRC's
17 conclusions in relation to guilty plea instances.
18 Slightly differently worded, paragraph 183:
19 "CCRC is satisfied that the arguments in relation to
20 abuse of process, see summary at paragraph 110 above,
21 applies in the eight guilty plea cases in this group,
22 even where the Post Office applicants have admitted to
23 taking Post Office money, the CCRC considers that the
24 evidential content of the individual cases in this
25 group, taken together, were numerous significant
1 findings against ..."
2 Et cetera, et cetera. It does not advert directly
3 to paragraph 127, but submitted that the CCRC could not
4 (Inaudible) grounds in the sense that it wasn't relying
5 on (Inaudible) concerned.
6 So, my Lord, that is all I am going to say about
7 CCRC's references.
8 I will turn, if I may, mindful of the time, to my
9 general submissions on the appellants' grounds.
10 The appellants' ground arguments, on limb 2, as
11 I have said, in the CCRC's reasons, which we have
12 submitted are flawed. They place reliance on a global
13 approach, together with the employment and a series of
14 documents taken largely, not exclusively, from cases not
15 before the court, as well as from internal reports to
16 paint a generalised picture that Royal Mail or
17 Post Office prosecutions were limb 2 unsafe.
18 Where there is reference to documents from these
19 appellants' cases, none of these so far is said to
20 reveal case sensitive limb 2 abuse.
21 Also, there is no case sensitive analysis of how, if
22 at all, the general issues which have been submitted to
23 the court impacted on the individual's cases. It is not
24 enough, we submit, to say that the reliability of
25 Horizon data was essential to the case. If there were
1 failures of disclosure and investigation such that all
2 cases are unsafe on limb 2 as well as limb 1 grounds.
3 As I have said, and I am going for repeat it,
4 because it ought to be repeated, but in the case of
5 Ms Misra, as we understand it, the failure to disclose
6 the (Inaudible), the argument her case is relied upon,
7 understandably, as a case specific feature of limb 2.
8 Albeit Messrs Parekh and Page make reference in
9 their skeleton arguments to the facts in their cases,
10 they and the remaining appellants did not, as we have
11 understood it thus far from the documents we received --
12 and goodness knows we received an awful lot in this
13 case -- point to any case specific issue or issues in
14 their cases, such as the ones that we have rightly
15 conceded in the four cases I named yesterday, on limb 2,
16 that render them also limb 2 abuses of process. Rather
17 they make the point contended about Post Office conduct
18 and their motives, general, broadbrush, global, to argue
19 that their cases were unsafe on limb 2.
20 Just by way of example, my Lord, can we go to
21 a bundle? I don't think you have been taken to yet to
22 bundle G. Bundle G, tab 11, page 105. You will find
23 a skeleton argument, which was put in on behalf of
24 Ms Misra, Ms Felstead and Ms Skinner.
25 12 March, it is dated 12 March, so this was
1 a skeleton put in, in relation to the final direction of
2 the court back in November.
3 MRS JUSTICE FARBEY: Could you repeat the reference?
4 MR ALTMAN: Of course, my Lady. It is page 105, tab 11,
5 bundle G.
6 That is the beginning of the skeleton document. If
7 we go, please, to page 114, at paragraph 24, Ms Busch
8 relies heavily on that stage in the process, of bringing
9 a prosecution by reference to the decision to prosecute.
10 She reminds us that the Post Office was found to take
11 the decisions to prosecute as a responsible and
12 disinterested prosecutor advancing the public as opposed
13 to its private interests, and she sets out there seven:
14 "Subparagraphs including making decisions in
15 a manner that is fair and objective, by reference to
16 the~(Inaudible) Crown prosecutor."
17 It is reasonable for her to have made that
18 suggestion. But for there to be no, with respect,
19 analysis of alleged failings or prosecutorial misconduct
20 under the code, and indeed under the CPIA, for the
21 purposes of limb 2 without an examination of the alleged
22 misconduct of those individuals, the decision makers.
23 It is that which matters. For obvious reasons, the
24 High Court didn't hear from anyone. We suggest trying
25 to extrapolate from judgments, findings, that were not
1 designed to pronounce on those matters is not helpful.
2 Paragraph 66, the same document at page 127, the
3 argument is made that the Post Office ought to have
4 known how its own system works. The reference is to
5 paragraph 1018 of the Horizon issues judgment, and
6 perhaps we could look at that.
7 My Lords and my Lady, can I make sure that is the
8 right reference before I ask you to --
9 LORD JUSTICE HOLROYDE: I think this is volume A, tab 1A,
10 page 780.
11 MR ALTMAN: No, page 716.
12 LORD JUSTICE HOLROYDE: 716?
13 MR ALTMAN: 716, 1018, tab B.
14 This was Mr Justice Fraser's finding in relation to
15 one of the issues he had to deal with. "The
16 Post Office", he says in the second line:
17 "The Post Office ought to have known how its own
18 system works. It is agreed by the experts that
19 a sub-postmaster cannot record a dispute in Horizon at
21 What Ms Busch argues, in paragraph 6 of her skeleton
22 argument, is that Post Office ought to have known how
23 its system works.
24 That was an issue, as I say, which related to the
25 sub-postmasters not being able to record a dispute on
1 Horizon. I am sorry to have to take you to another part
2 of your bundles, but if we look, please, at the common
3 issues judgment, which you will find in the bundle at A,
4 1A, so tab A, behind 1. Tab 1, in bundle A, and page 92
5 is where it begins. At page 231 in that bundle, please.
6 231, paragraph 460.
7 Here if one flicks back to 230, Mr Justice Fraser
8 was dealing with the evidence of Helen Dickinson. We
9 can see, at 452, on page 230, she was, or is at that
10 time, security team leader at the Post Office. Started
11 at Royal Mail in 1992 with a delivery job. Her interest
12 increased, the role evolved into that field of revenue
13 protection, which was the department responsible for
14 preventing loss of cash stock assets by errors or fraud.
15 Worked in management, in revenue protection for five
16 years, and then became area manager and moved into the
17 security and investigations service team in Royal Mail
18 in 2000, which dealt with fraud.
19 Then joined the Post Office investigation team in
20 2003, and was promoted to security team leader in 2013.
21 It is against that background I invite the court to look
22 at 460, paragraph 460, on page 231:
23 "Ms Dickinson, given all of that experience, didn't
24 know [obviously this is Mr Justice Fraser] that there
25 was no ...(Reading to the words)... button on the
1 Horizon system, and that even disputed items by
2 sub-postmasters had to be accepted so far as the Horizon
3 system is concerned.
4 "This is a surprising admission in the knowledge in
5 the knowledge of someone whose ...(Reading to the
6 words)... includes dealing with potentially dishonest
7 sub-postmasters. She has only limited knowledge of the
8 Horizon system, although she had been given some initial
9 training on a course with sub-postmasters and said she
10 had picked things up since. She said, 'The number of
11 days' training was three, and then basically you pick
12 things up as you go along. Ultimately, I wouldn't work
13 on the Horizon system because then that would cause
14 conflict with me investigating a matter'."
15 My point is: if someone of that seniority within the
16 Post Office didn't understand the system, then the
17 submission that the Post Office ought to know its own
18 system breaks down at higher levels than Ms Dickinson.
19 It is pretty unlikely that the decision makers
20 understood how Horizon itself worked, and I will come
21 back to Fujitsu in a while.
22 MR JUSTICE PICKEN: He goes on, in paragraph 461, to say
23 that he doesn't see why there is a conflict:
24 "But, anyway, logic would suggest the investigator
25 might be assisted by having more, or even some, detailed
1 knowledge of how Horizon worked. Anyway, essentially he
2 gets somebody to help."
3 MR ALTMAN: Yes, I can't dispute that. My point is, that's
4 the level of knowledge.
5 LORD JUSTICE HOLROYDE: Sorry to interrupt, Mr Altman,
6 I don't want you to think I am sniping at you in any
7 way, but I am afraid I just don't understand this point.
8 If the proposition is the Post Office ought to know
9 how its own system works, you may or may not wish to
10 argue against that. But, if it is a valid proposition,
11 then simply to say, "Actually, they didn't know how it
12 all worked", is a confession, not a challenge to the
14 MR ALTMAN: First of all, I am not up here to challenge
15 anything. All I am saying is: when it is suggested that
16 the Post Office ought to know, first of all, in fact,
17 the Post Office relied a lot on Fujitsu, and I am going
18 to come back to that because Mr Justice Fraser had a lot
19 to say about that. That is the first point.
20 But, secondly, I can't deny that Post Office ought
21 to have known that there is -- and they did know, and
22 I am going to show you how they did know certain things
23 because I am going to take you to certain paragraphs of
24 what Mr Justice Fraser said on this issue.
25 But the fact they ought to know, the question
1 arises: how much ought they to have known? And "how
2 much?" comes back to "ought they to have appreciated?",
3 and how much ought they to have understood about where
4 the active risks were?
5 MRS JUSTICE FARBEY: I, like Mr Justice Holroyde, don't want
6 to snipe, but can I try to provide the answer to you?
7 The answer to that is sufficiently for them to prosecute
8 responsibly and not irresponsibly, bearing in mind that
9 their lack of knowledge may end up with the denial of
10 the deprivation of liberty of those who were affected by
11 those decisions. I think one has to look at the context
12 of it before saying whether or not that finding by
13 Mr Justice Fraser, whether limited in the way we say or
14 not, is a reason to exculpate your client.
15 MR ALTMAN: The problem, if I may say so, my Lady, with that
16 is that -- let's move away from the Post Office and
17 think, for example, about the Crown Prosecution Service.
18 It often prosecutes cases based on facts which are
19 outwith its own knowledge. It might rely on a suite of
20 experts, and it might rely on the expertise of people
21 who say, for example, DNA. Imagine if an individual was
22 found in a particular place that makes a case that might
23 otherwise have been not possible to put, passed the
24 first stage of the test of Crown prosecutors.
25 I accept that, in the situation in which the
1 Post Office found itself, where it had a supply contract
2 with Post Office, with Fujitsu, and Fujitsu supplied its
3 IT, that more knowledge was better than none, but that
4 is not with respect to be equated with the prosecuting
5 responsibly because the question arises -- it is the
6 question I posed earlier: at what point -- because it
7 cannot be from the beginning, I suggest. At what point,
8 if any, was it no longer reasonable for the Post Office
9 to rely upon Fujitsu or rely upon what Fujitsu was
10 telling it about its systems?
11 That is the problem. It is a different one, but if
12 Fujitsu was the supplier, was the expert, and on
13 occasions when they supplied Gareth Jenkins as an expert
14 witness, or he was called as an expert witness, to what
15 extent was Post Office not permitted to rely upon him
16 when he said the system was robust?
17 That actually brings us to the Clark advice, because
18 it was because of what was discovered by the circuitous
19 route of setting aside the interim report of 8 July,
20 which was discovered by chance, by Simon Clark and
21 Martin Smith of Cartwright King, it was Gareth Jenkins
22 who had supplied the information about those two bugs,
23 the Second Sight for the purpose of that interim report,
24 that they, Simon Clark, on instruction, wrote the advice
25 to the Post Office that Jenkins couldn't be relied upon.
1 That if he was an expert, he was in breach of his duties
2 and, frankly, even if he wasn't, he was in breach of
3 duties to reveal -- or just the common fact he was
4 a witness, even if he was a witness of fact, rather than
5 one of (Inaudible). There was certainly a duty on him,
6 where it was reasonable to expect him to provide the
7 information to the Post Office.
8 LORD JUSTICE HOLROYDE: Before we go any further with that,
9 Mr Altman -- we will perhaps postpone it to a later
10 stage -- probably now is a good time to break, but
11 perhaps we can just flag up, for you and others, that
12 some of what you have just said rather touches upon one
13 of Ms Busch's submissions yesterday, which one might
14 encapsulate by saying: who knew [or ought to have known]
15 what, when?
16 We might be assisted by some consideration of
17 whether the words in the square brackets should be there
18 and, if so, how they should be applied.
19 MR ALTMAN: My Lord, I am coming to that.
20 LORD JUSTICE HOLROYDE: I guessed you would be.
21 All right, we will rise until 12.05. We understand
22 there will be a tannoy announcement at 12.00. Thank you
23 all very much.
24 (11.55 am)
25 (A short adjournment)
1 (12.05 pm)
2 LORD JUSTICE HOLROYDE: Yes, Mr Altman.
3 MR ALTMAN: My Lord, can I invite the court, please, to
4 page 253, common issues judgment, bundle A, tab 1A,
5 page 253, and paragraph 541.
6 As I said, I will come back to this to go through
7 some documents Mr Justice Fraser adverted to during the
8 course of his judgment.
9 At 541, he says:
10 "A number of contemporaneous documents internal to
11 the Post Office show there has been, at least to some
12 degree, an awareness of Horizon problems within the
13 Post Office itself over a number of years. A number of
14 these documents were put to the different Post Office
15 witnesses. These documents were referred to in the
16 transcripts of proceedings, but not all of the documents
17 were put. I did however tell counsel~..."
18 Then, at 542, what he does is he sets out, in fact,
19 14 documents, extracts from them, which span the years
20 2000 to 2017. If one goes to number 10, it is a bit
21 difficult to pick out, but page 256. If the court
22 focuses on number 10 and the date is 17 October 2012 ...
23 You might want to make a note there, if I can
24 respectfully suggest so because that bit is wrong. This
25 deals with the receipts and payments mismatch bug, and
1 it was then understood that was the date of those
2 issues, when in fact months later discovered it
3 was September/October 2010. There, a number of
4 documents. The judge dealt with the receipts and
5 payments mismatch issue notes, which you have in your
6 bundle C, and he goes through them. Over the page, you
7 will see in capitals, "SOLUTION 1", "SOLUTION 2",
8 "SOLUTION 3".
9 So, that was number 10 on his list of 14 documents
10 that he had seen, for the purposes of the common issues
11 trial. Of course, he must have had more documentation
12 available to him for the purposes of the Horizon issues
13 trial. At 543, on 259, what Mr Justice Fraser says is
15 "These internal Post Office entries make it clear
16 that notwithstanding the tenor of the Post Office
17 evidence before me, behind the scenes there were at
18 least a number of people within the Post Office who
19 realised that there were difficulties with the Horizon
21 That much is true. However, it is equally clear
22 that what Mr Justice Fraser did not do -- and I am
23 coming now to the "who knew what and when" issue -- he
24 did not make any findings in the Horizon issues judgment
25 about who knew what and when. He didn't have to.
1 MR JUSTICE PICKEN: Mr Altman, on this point of detail, and
2 we don't need to turn it up, it is tab 428 of the
3 Horizon judgment, he acknowledges that date of
4 17 October is the wrong one, so that now is known.
5 MR ALTMAN: Yes.
6 As it happens, I am going to the Horizon issues
7 judgment, your Lordships are ahead of me, which is at
8 tab B in bundle A. Can we go, please, to page 705?
9 705, paragraphs 960 and 961.
10 This is what Mr Justice Fraser had to say on this
12 "In my judgment, the number of both the
13 Post Office's own internal documents, and Fujitsu ones
14 too, namely those that were not drafted for public
15 consumption, plainly support my conclusions on the
16 evidence. Further, certain matters that have emerged in
17 the Horizon issues trial, such as discussions within
18 Fujitsu itself as to whether the Post Office should be
19 told certain detrimental information about the Horizon
20 system ..."
21 Pausing there, I will come back to this when I deal
22 with reliance on Fujitsu. That is an important finding.
23 The Post Office's own decision at the highest level not
24 to investigate certain matters as recently as 2016 are
25 of great concern.
1 The Post Office has gone to great lengths over the
2 years, and spent a great deal of time and a huge amount
3 of public money, in defending the performance of
4 Horizon. It is also the case that the Post Office must
5 have been reliant on Fujitsu to a certain degree, in
6 terms of being provided with accurate information of
7 a technical nature. Again, important.
8 That is not only obvious from the evidence, but has
9 also been agreed by the experts in the third joint
10 statement. That accuracy from Fujitsu has not always
11 been available, as demonstrated by this judgment.
12 Then Mr Justice Fraser goes on to say, in the next
14 "Regardless of that, this judgment does not deal
15 with who, if anyone, at the Post Office knew precisely
16 what about Horizon and when. These are not part of the
17 Horizon issues. In my judgment, a number of the
18 specific internal contemporaneous documents ...(Reading
19 to the words)... are entirely consistent with those
21 Had there been those individual trials, which were
22 due to follow, I think there may have been one other
23 general issues trial after Horizon, then that was the
24 time Mr Justice Fraser may have been asked to make some
25 findings, about who knew what and when in individual
1 cases, but it certainly didn't come to it.
2 Paragraph 78 of Ms Busch's skeleton argument,
3 perhaps we don't need to go back to it, but for the
4 court's reference, bundle G, tab 11, page 130. She
5 argues, and you may remember, limb 2 doesn't turn on who
6 knew what and when. We respectfully disagree.
7 These decisions, the prosecution decisions, were
8 made by human actors. What they knew, if anything, is
9 fundamental to any finding of limb 2 abuse. There is
10 a world of difference, we submit, in limb 2, between
11 someone who was negligent or incompetent, kind of
12 incompetence tag incompetence, gross incompetence, as
13 Sir Brian Leveson called it in the State case, but it
14 applies equally to the case of a private prosecutor, as
15 regards Mrs Dickinson. So, a world of difference in
16 limb 2 between someone who was negligent or incompetent
17 and didn't do their job, and someone who wilfully
18 avoided the duties which were placed upon them.
19 If the argument is correct, then what does limb 2
20 turn on?
21 I hope the court doesn't mind if I cite what
22 my Lord, Lord Justice Holroyde, said in the judgment, on
23 15 January of this year, in relation to the principle of
24 the argument on limb 2. The court may recall, in
25 paragraph 40, this is what your Lordship had to say:
1 "Ground 1 involves issues as to whether the
2 respondent made appropriate and/or timely disclosure of
3 information and material relating to the reliability or
4 otherwise of the Horizon system.
5 "Ground 2 may substantially turn on whether the
6 relevance of that information and material was
7 appreciated at the time by anyone concerned in the
8 commencing of the prosecution against the appellants."
9 I accept it was couched in the way that it was, but,
10 my Lord, we would suggest your Lordship was, absolutely,
11 if I may say so, right; it does turn on who knew what
12 and when at ground level, people who were making
14 We do respectfully agree with what your Lordship had
15 to say. Apart from the important issue of the RPM bug
16 and that email exchange about it between Mr Simpson and
17 the Post Office lawyers, on 8 October 2010, in the days
18 before Ms Misra's trial, we repeat and submit, with
19 respect, that there has to be something that
20 distinguishes limb 2 from limb 1, that is relevant
21 knowledge by the relevant decision maker in the relevant
23 The general proposition --
24 MR JUSTICE PICKEN: Mr Altman, if I may, what I think is
25 said by a number of the appellants is that there was
1 a cultural mindset -- not the language used, but a way
2 of describing it -- within Post Office which this court,
3 it is suggested, can be comfortable about deciding
4 existed, so as to mean that it is then not necessary to
5 pinpoint individuals because those individuals would
6 simply be following that cultural mindset.
7 MR ALTMAN: May I say that submission is a very dangerous
8 one because, first, if it applies to -- when did it
9 start? If it started after the fifth of 32(?) cases
10 that this court had to deal with, what happens to those
11 cases before it? When did it stop? Who was involved in
12 propagating or believing that culture? Everybody? Did
13 anybody resist it? Was there any evidence that lawyer A
14 subscribed to that culture? Is there any document to
15 show that all the lawyers, including the lawyers in
16 Cartwright King, independent of counsel, subscribe to
17 that kind of culture?
18 MR JUSTICE PICKEN: If you are coming to the Clark advice,
19 of course it is said that the Clark advice, the July
20 one, demonstrates very much that there was exactly that
21 because that is why there were instructions to not write
22 anything down, that sort of thing.
23 MR ALTMAN: Your Lordship means the 2 August.
24 MR JUSTICE PICKEN: I mean the 2nd, I am so sorry.
25 MR ALTMAN: I will come to that and show you why, but let me
1 just touch on that now. The fact that a rogue
2 individual made a suggestion like that is appalling,
3 I am going to accept that. But when we actually see
4 what happened, or, more accurately, what didn't happen,
5 the court may change its mind about what Mr Singh had
6 said about (Inaudible).
7 LORD JUSTICE HOLROYDE: Thank you, Mr Altman, just before we
8 move on, if we go back to an analogy you have posed in a
9 different context earlier this morning, take it in
10 stages, your submission obviously would be that the CPS
11 would be perfectly entitled to launch a prosecution in
12 reliance on, say, DNA evidence, even though, unbeknown
13 to the CPS, the scientists concerned knew full well that
14 his techniques were flawed, his conclusion was totally
15 unreliable and that he was a peddler of misinformation.
16 Equally, at the other extreme, you accept, I am
17 sure, that the CPS would not be entitled to launch
18 a prosecution based upon, or substantially relying upon,
19 BAM(?) which you knew to be (Inaudible) based on the
20 (Inaudible), but somewhere between those two extremes,
21 perhaps there is a statement which would be, in square
22 brackets, for all (Inaudible), close square brackets.
23 MR ALTMAN: Yes.
24 LORD JUSTICE HOLROYDE: At some stage we would be grateful
25 for your assistance on that.
1 MR ALTMAN: It is a difficult one to confront because --
2 LORD JUSTICE HOLROYDE: That is why I want your assistance
3 on it.
4 MR ALTMAN: It is a difficult one to confront for this
5 reason: whether it is the right question, with respect.
6 LORD JUSTICE HOLROYDE: Yes.
7 MR ALTMAN: Because what one ought to have known is not the
8 same thing as what that person did know, and
9 constructive knowledge is not a concept in which the
10 criminal lawyer gathers in terms of attributing
11 knowledge or awareness to individuals. Yet in my
12 submission, the court is asked a direct question of what
13 the Post Office ought to know and please forgive me for
14 raising a couple of rhetorical questions: what they
15 should have known about Horizon, is it about bugs? If
16 so, ought they to have known that a particular bug had
17 been fixed? Ought they to have known that the shortfall
18 that a particular postmaster was complaining about, or
19 had phoned the helplines about, could not possibly have
20 impacted on their branch shortfall?
21 What it that a particular bug only appeared in
22 Horizon, and so it couldn't have applied to Legacy? Was
23 it one which didn't bear the hallmarks of being a bug at
24 all because it was simply a hardware fix? An engineer
25 had gone into a post office and had seen certain
1 problems arise and they were fixed fairly sharpish.
2 What should individuals on the ground know?
3 There is, if one just thinks about it, the lawyers,
4 not engineers, far less computer engineers, how far and
5 how much should they have known, and if the court
6 arrives at the answer, "They ought to have known
7 something", then the question is: what and how much?
8 Should they have had technical know-how or were they
9 entitled to rely -- I have said this more than once, and
10 I will come back to it -- on what they were being told?
11 At what point did it become unreasonable for those
12 individual lawyers, and the Post Office more generally,
13 to rely on assumptions that were being made about
15 Take this as an example: in his paragraphs, in the
16 robustness, the meaning of robustness in the Horizon
17 issues judgment, at paragraph 36 and onwards, you will
18 find his ultimate finding, and you will remember this,
19 is that Horizon online was more robust than Legacy.
20 If that is right, and that was Mr Justice Fraser's
21 finding, does that mean it became more reliable to rely
22 upon Horizon because it became more robust, rather than
23 less robust? I am not saying it didn't have problems,
24 it did.
25 MR JUSTICE PICKEN: Mr Altman, just on the prior question,
1 when you say this is the criminal law and therefore it
2 is not a question of constructive knowledge, but is that
3 entirely right? Nobody is putting the Post Office in
4 the dock here and saying: you have committed a criminal
6 MR ALTMAN: No.
7 MR JUSTICE PICKEN: Surely it is a looser concept, one of
8 abuse. So, is it so easy to say, "Well, you don't get
9 to constructive knowledge because it is a big
10 organisation and you cannot say who knew what"?
11 MR ALTMAN: My Lord, it is an issue of evidence. As
12 a matter of evidence, when one speaks in criminal law of
13 "knowledge", then one is talking about knowledge that --
14 MR JUSTICE PICKEN: What I am putting to you is that it is
15 not the criminal law, and nobody is saying the
16 Post Office is guilty of a particular criminal offence.
17 MR ALTMAN: No.
18 MR JUSTICE PICKEN: We are asking the question, for the
19 purposes of limb 2: is what has happened an abuse?
20 MR ALTMAN: Yes.
21 MR JUSTICE PICKEN: So, it is not a question of saying,
22 well, it is the (Inaudible) therefore constructive
23 knowledge is not enough. Surely it is a looser concept?
24 The Post Office chooses to operate as a company,
25 like many, many businesses around this country. They
1 operate by way of company, and that is -- they avail
2 themselves all the advantages. In those circumstances,
3 bearing in mind the question that we are considering,
4 why is constructive knowledge not enough to look at the
6 MR ALTMAN: Because one is looking at the decision makers
7 and their knowledge. What I am saying is you cannot
8 attribute other people's knowledge or even knowledge
9 somewhere within the business of Post Office to the
10 individuals making those decisions. That is why.
11 MR JUSTICE PICKEN: It's the Post Office that brought the
12 prosecution. The prosecution is the Post Office, the
14 MR ALTMAN: I agree, but it operates through human actors.
15 MR JUSTICE PICKEN: But it prosecutes as the company.
16 MR ALTMAN: Of course it does. I am not denying that. But,
17 at some point, if one asks the question: ought they to
18 have known how the system worked? I come back to the
19 answer I gave, how much? What in particular; its
20 architecture; its technical abilities; its
21 compatibilities; its reliabilities?
22 I am not throwing problems in the way of the court,
23 I am just answering as honestly as I can based on the
24 sniping, to use my Lord Lord Justice Holroyde's comment
25 earlier, coming from all parts of the bench. But I am
1 more than happy to (Inaudible), so there is no
3 The point really is, and I entirely understand your
4 Lordship's point that we do have a company who is
5 prosecuting privately all of these postmasters, but if
6 one is really drilling down into what went wrong here,
7 and it did go wrong, we are actually looking at decision
8 makers on the ground and what they understood and knew.
9 That is from our perspective, the submission we are
10 making, an important point to focus on.
11 MR JUSTICE PICKEN: Thank you, Mr Altman.
12 LORD JUSTICE HOLROYDE: I am sorry to nag away, but just
13 accepting for the moment everything you have just said,
14 not wanting to engage with that, if we get down to the
15 prosecution on the ground, the individual decision
16 maker, the individual case, the specifics, is your
17 submission that it is simply what did he or she know or
18 can it include, additionally, an element of what ought
19 he or she to have known?
20 MR ALTMAN: Certainly it includes the first.
21 LORD JUSTICE HOLROYDE: Yes.
22 MR ALTMAN: My submission is it can only include the latter
23 if there is careful definition and common sense, if
24 I may say so, definition of what that lawyer ought to
25 have known.
1 LORD JUSTICE HOLROYDE: I understand.
2 MR ALTMAN: In other words, and this is where it comes back
3 to reliance on Fujitsu in latter day cases, reliance on
4 Gareth Jenkins, where the litigation became more about
5 reliability of Horizon itself (Inaudible), and we know
6 how that ended up. So there are any number of layers
7 here which do not make an answer to this simple at all.
8 LORD JUSTICE HOLROYDE: Thank you very much.
9 MR ALTMAN: In other words it is not one dimension, that is
10 the submission we make.
11 Now, against that background, and timing as it is,
12 can I then present to the court how Mr Justice Fraser
13 himself recognised that the Post Office was reliant on
14 Fujitsu. We have looked at one paragraph already in the
15 Horizon issues judgment, but if we, please, begin -- it
16 is A1, tab B, page 545. Paragraph 459, this, you will
17 remember, if we look to the left, you will see at 457,
18 and that is a paragraph I have already taken the court
19 to and we will see it is receipt and payments mismatch
20 bug. At 459 he says:
21 "In my judgment, however, there are sufficient
22 entries in the contemporaneous documents to demonstrate
23 not only that Fujitsu has been less than forthcoming in
24 identifying the problems which have been experienced
25 over the years but rather the opposite. A majority of
1 problems and defects which counsel put to Mr (Inaudible)
2 [who was a Fujitsu witness], which were effectively
3 admitted by him, simply would not have seen the light of
4 day without this group litigation."
5 Then, please, to page 597. 597, paragraph 652,
6 point 1. "It is important to identify ..."
7 In actual fact it is 652:
8 "It is important to identify so that the parties in
9 this group litigation are aware the court's approach to
11 And he says why. I think I may have got the wrong
12 paragraph number. It is my fault, it is 652/8, over the
13 page at 598.
14 "It is obvious that the Post Office has had to rely
15 upon Fujitsu to a large degree. However, given it was
16 Fujitsu who told the Post Office what the known error
17 log contained, Fujitsu has so far shown itself not to be
18 entirely reliable in this respect. Fujitsu are also
19 responsible for the Post Office making a directly
20 incorrect important statement in its EDQ ..."
21 That is an Electronic Documents Question.
22 "... about retention of KELs which led to the
23 disclosure of about 5,000 of these some months after the
24 trial closed."
25 MR JUSTICE PICKEN: Known Error Log, is KELs.
1 MR ALTMAN: Yes. Then at 698, paragraph 934 and then 935.
2 LORD JUSTICE HOLROYDE: Page reference again, Mr Altman?
3 MR ALTMAN: 698, paragraph 934.
4 LORD JUSTICE HOLROYDE: Thank you very much.
5 Halfway through 934 you will find Fujitsu had powers
6 which, until shortly before the trial started, Fujitsu
7 sought to keep from the court and may not even be fully
8 disclosed to the Post Office. Because the extent of the
9 new powers was kept secret in this way, the Post Office
10 finds itself now having made misleading public
11 statements previously. That I think was about remote
13 935, the next paragraph, seven or eight lines up
14 from the bottom:
15 "Fujitsu personnel routinely referred in such
16 documents to the known existence of bugs. Without this,
17 so far as the documents deployed in the trial are
18 concerned, being communicated to the sub-postmaster in
19 question in these terms. In places, there is even
20 debate at Fujitsu shown in documents about whether the
21 Post Office and/or sub-postmasters should be told.
22 I don't see how a thorough professional and
23 conscientious organisation could have produced the
24 disclosure in this litigation, so many thousands KELs
25 during 2019 itself, both during and even after the
1 trial. I reject that description. It is an inaccurate
2 description of Fujitsu and/or its investigative
4 So if one speaks about withering criticism, that was
5 withering criticism of Fujitsu.
6 Then, if I can simply remind the court of the
7 passage I took the court to earlier this morning,
8 page 705, you will remember the paragraph 960.
9 Just to paraphrase, discussions within Fujitsu as to
10 whether the Post Office should be told certain
11 detrimental information about the Horizon system, and
12 four lines, five lines up from the bottom, the
13 experience of (Inaudible) of the Post Office must have
14 been reliant on Fujitsu to a certain degree in terms of
15 being provided with accurate information of a technical
17 Finally, insofar as the Horizon issues judgment is
18 concerned, page 712, 712, paragraph 995, three lines
20 "I also consider that although the Post Office did
21 have access to 'the causes of various shortfalls in the
22 branches, including whether they were caused by bugs,
23 errors and/or defects in the Horizon system', this had
24 to be obtained through Fujitsu. This should be recorded
25 for completeness. The evidence does not show the
1 Post Office IT department either being capable of
2 investigating directly itself or, if it was capable of
3 doing so, actually undertaking it. All investigations
4 recorded in peaks and KELs show that Fujitsu did this.
5 The terms for the experts' agreement in this respect was
6 that the Post Office was 'reliant on Fujitsu for
7 diagnosis of whether the occurrence of shortfalls was
8 caused by bugs, errors or defects within the Horizon
9 system'. I find that the Post Office plainly was
10 reliant upon Fujitsu in this way."
11 Finally, in terms of this list, can I simply remind
12 the court, and I will provide the reference, in annex 2
13 to the CCRC statement of grievance, there is the
14 transcript of the hand down of his judgment in the
15 Horizons issues trial on 16 December 2018. You will
16 find it at bundle A, tab 1D at page 839 and 843(b),
17 where Mr Justice Fraser said he had "very grave concerns
18 about the veracity of evidence given by Fujitsu
19 employees to other courts in previous proceedings."
20 Hence his referral in his letter of 14 January 2020
21 to the EPD(?).
22 Can I come back to something which was touched upon
23 yesterday, please, and it may be remembered that, in
24 paragraph 17 of her speaking note, Ms Busch suggests
25 that there is ample evidence that the Post Office or
1 Fujitsu knew of the presence of bugs, errors or defects
2 from the outset. I dealt with one aspect of this
3 yesterday afternoon, dealing with the 1999 acceptance
5 She relies on her proposed, but not agreed, facts
6 concerning bugs, but insofar as it suggests who knew,
7 you may remember attached to her suggestion of agreed
8 facts were three appendices, one of which set out
9 a whole list of the peaks and KELs and the like. We
10 suggest there is a problem with such an approach.
11 First, the assertion in the table that Post Office
12 knew or Fujitsu knew doesn't begin to engage with who at
13 Post Office knew, how that person knew, or indeed what
14 they actually knew. A good illustration of the dangers
15 of that approach can be found by looking at the first
16 entry on her table where it is suggested that the
17 Post Office had knowledge, and after the test phase --
18 just a peak my Lady, Mrs Justice Farbey referred to
19 yesterday the one of 7 July 2000, which is referred to
20 by Ms Busch. Perhaps we can take it as -- it is not
21 an easy read, as my Lady pointed out yesterday -- but it
22 is to be found in tab 41 of bundle C.
23 Tab 41, page 471 and it is PC0049629, and by the
24 first hole-punch, if one squints a bit, one can just
25 make out that it advises that this was all the work that
1 was done when an engineer was arranging the (Inaudible).
2 This was done, it looks like on the 29th, "He arrived at
3 2.00", pm and then there is some acronym. Another
4 engineer came at 4.00 pm to do more work and then, below
5 the next date and time is this on 24 July at possibly
7 "Information: insufficient info. Please provide
8 (Inaudible) figures for how much the APs are out [APs
9 are automatic payments] by, as well as the figures which
10 show the discrepancy for the rem(?) and if possible the
11 username of the person who was involved in (Inaudible)
12 through these transactions and the .. "
13 It is difficult to say, (Inaudible):
14 "Please if you can get the rough times on and/or
15 passed to HSW for more info."
16 HSH, Horizon (Inaudible).
17 If we could turn on, please, to the final page of
18 this document, 474, it is the third entry up from the
19 bottom, dated 17 August 2000 at 12.52. This instance
20 has been explained to you -- I think that says
21 Post Office Counters Limited, via BIM, which is
22 (Inaudible) system, Business Instant Management report.
23 18 July 2000:
24 "After discussing this with Jack MacKay live trial
25 teams, TP [I think it says] have been able to confirm
1 with PM [postmaster] that there are no further missing
2 APSTXMs [automatic payment system transactions]. All
3 transaction data has been provided in an earlier
5 The next line:
6 "As such, please close this call as all transactions
7 have been reported to Post Office Counters Limited."
8 LORD JUSTICE HOLROYDE: Who or what is TP?
9 MR ALTMAN: I think it is transaction payments or process,
10 something along those lines.
11 The point is that this peak, and the peak is not
12 something the Post Office would necessarily have
13 knowledge of in terms of its content, but this peak
14 doesn't deal with the bug. It deals with data loss when
15 hardware at base unit was replaced. Secondly, if one
16 looks at what Post Office actually knew, then the entry
17 I have just read out suggests that what Post Office was
18 actually told is that the situation was resolved and
19 (Inaudible) missing APSTXMs and further missing data.
20 So just taking just one peak as an example, that,
21 even if it was known, is not going to put anyone in the
22 Post Office on notice of an issue about Horizon
23 unreliability in terms of software. This was a simple
24 hardware issue which was resolved in a matter of days
25 and the importance and why I bring it to the attention
1 of the court is it illustrates the danger of the
2 broadbrush approach in submissions and the failure to
3 address in detail who knew what and how.
4 Peaks are technical documents and Mr Justice Fraser
5 was assisted in understanding them by hearing evidence
6 from two experts, Warren and Coin(?). No appellant --
7 I am not complaining about this but it is a fact -- no
8 appellant is calling evidence to assist this court in
9 identifying what matters can properly be extrapolated
10 from any of the peaks which the court can find in
11 abundance. For example, a peak may describe a symptom
12 of a discrepancy or a mismatch. That is not to say it
13 was caused by a bug, error or defect. A peak may well
14 be a term for example of where the cause was, among many
15 other possible causes, user (Inaudible).
16 As such, and this is the submission I make now, we
17 would invite caution before placing reliance upon the
18 mere fact that in your bundles there are peaks such as
19 this, beyond those set out in the Horizon issues
20 judgment, and Mr Justice Fraser did have all of the
21 assistance of experts to make proper findings.
22 MR JUSTICE PICKEN: Put simply, you say peaks like this you
23 would expect in a system like this, both before testing
24 and then in operation?
25 MR ALTMAN: No system -- and you will know that Horizon was
1 a prime example of this -- but no system was ever going
2 to be bug free. They will have glitches, they will have
3 outages, they will have power failures and all the rest
4 that goes with it. This case is about disclosure, not
5 about a bug free system.
6 Can I please touch again very briefly on the issue
7 of Gareth Jenkins. I have made clear certain comments
8 about the Clark advice. The other thing that is
9 important to note, and I don't think I actually got
10 round to saying it yet, is that what it led to -- and
11 when I say the Clark advice, I mean the one we are
12 probably more familiar with, the one of 15 July 2013 --
13 it led to what was called the Sixth(?) review. So it
14 led to a post conviction disclosure exercise in which
15 the Second Sight interim report was to be disclosed in
16 cases which Cartwright King deemed to be appropriate,
17 and what is known as the Helen Rose report, which was
18 a report from June 2013, because it indicated within its
19 content that Gareth Jenkins had some knowledge about
20 that particular issue which dealt with the (Inaudible).
21 Yesterday, I informed the court about the fact that
22 Gareth Jenkins, it is believed, gave oral evidence only
23 once. That case was in the case of Mrs Misra. He gave
24 evidence on 14 October 2010. He was cross-examined. In
25 the cases before the court, the only other two cases in
1 which he provided witness statements but did not give
2 evidence are the cases of Hughie Thomas and Khayyam
3 Ishaq. We know of eight other individuals not before
4 the court in whose cases he also provided statements.
5 We don't wish -- and I make clear I am not seeking
6 to prejudge the ongoing police investigation -- but it
7 is clear that not only did Post Office place reliance on
8 Fujitsu, it also placed, we suggest until it was
9 discovered otherwise, reasonable reliance on
10 Gareth Jenkins and indeed the other Fujitsu witnesses --
11 he was not the only one -- who spoke to the integrity of
12 the system. When I say Post Office, I mean not just
13 Royal Mail before 2012 and not just Post Office after
14 2012, and their in-house lawyers, but also
15 Cartwright King, other solicitor agents who prosecuted
16 on behalf of Post Office and not forgetting independent
18 Now, my Lord, I was going to move on to deal with
19 certain aspects of Mr Stein's arguments. It is slightly
20 early -- if your Lordship wants me to carry on, I will
21 carry on now?
22 LORD JUSTICE HOLROYDE: Make a start, if you would, please.
23 MR ALTMAN: Absolutely.
24 The skeleton argument on behalf of Mr Darlington and
25 the four other appellants that Mr Stein represents, and
1 it is to be found in bundle G, tab 19, at page 303.
2 LORD JUSTICE HOLROYDE: Thank you.
3 MR ALTMAN: At page 311, paragraph 39 and onwards, there is
4 that heading "Cumulative effect of the Post Office's
5 behaviour". Paragraph 39, Mr Stein states that "the
6 behaviour of the Post Office must be seen in the round."
7 That is, the court will be aware, the comment that the
8 CCRC itself uses, "Looking at all of these cases in the
9 round ..."
10 Mr Stein goes on to say that the possible suggestion
11 that the actions of the Post Office should be considered
12 case by case is "unsupportable in common sense":
13 "Since the inception of Horizon in 1999 and the
14 decisions made as regards these appeals, all disclosure
15 decisions were motivated by the same decision-making
16 process, which was to protect at all costs the
17 Post Office to the detriment of all and any
19 If one can just stand back for a moment from that
20 submission in this skeleton argument, without any
21 evidence to support a sweeping statement such as that,
22 that every single decision on disclosure across the
23 board was motived by the same decision-making process
24 which was to protect at all costs the Post Office to the
25 detriment of all and any sub-postmaster, yes, I accept
1 and pointed them out -- there were on occasion
2 unacceptable representations of protecting Horizon and
3 they have been reflected where it was appropriate to do
4 so, and there are other examples in cases not before the
5 court, and I accept that. But to make a statement of
6 this nature, that every single disclosure decision was
7 tainted in the way Mr Stein submits, without evidence to
8 back it, is not, with respect, a representation this
9 court should act upon.
10 He goes on, and I am skating over paragraph 40 to
12 "The concept of bad character should also be
13 considered. The failure of disclosure across so many
14 cases of which more are coming forward is not
15 an accident. The Post Office serially failed in their
16 duties of disclosure and thereafter continued to
17 maintain up to and throughout the High Court proceedings
18 that it was the sub-postmasters who were to blame. This
19 reprehensible behaviour underlines the point that the
20 Post Office and its witnesses at the High Court [at the
21 High Court] were only concerned with reputational
22 protection and not concerned with the damage and the
23 betrayal of trust to the sub-postmasters. The behaviour
24 statements and actions recorded in documents throughout
25 the time of the creation of the Horizon system, for
1 20 years, all go to the following points: (1) state of
2 mind; (2) evidence of system; (3) bad character and
3 corporate malfeasance."
4 State of mind? Whose state of mind? How was it
5 evidenced? State of mind in relation to what? Evidence
6 of a system, not supported by detailed argument or
7 documentary record even on its own terms. Reference,
8 I agree, to the High Court judgments. What about these
9 cases that we are dealing with? Added to this, the
10 seriousness -- and it is serious -- non-specific charge
11 of bad character and corporate malfeasance without
12 saying what is meant and who it applies to, and why.
13 At page 313, over the page, paragraph 43, the acts
14 of Post Office personnel and representatives, post the
15 incident -- and this is something I mentioned yesterday
16 and the reason why I took the court to that passage in
17 Tague about post-incident conduct, and it is not
18 possibly being within the jurisdiction of abuse of
19 process this court has to deal with:
20 "The acts of Post Office personnel and
21 representatives post-incident assist the court in
22 understanding the motive of those who are under
24 Who is under examination?
25 "Indeed, further evidence of a continuing system, in
1 this case a system which prevents disclosure of evidence
2 of bugs and errors in Horizon."
3 My Lords, my Lady, we say that kind of submission
4 (a) does not help the court and (b) is so sweeping and
5 so broad and so nonsensical as to be totally unhelpful
6 and indeed unfair. It cannot be dealt with. It cannot
7 be confronted. We therefore suggest, with respect, that
8 the court should not act upon such submissions.
9 LORD JUSTICE HOLROYDE: Thank you, Mr Altman.
10 Is that a convenient point to break?
11 MR ALTMAN: Yes, thank you.
12 LORD JUSTICE HOLROYDE: Could I raise one matter with you,
13 not asking for an answer now, but perhaps before the end
14 of your submissions. You mentioned in your submissions
15 earlier this morning a point about not everyone who is
16 before the court having been a sub-postmaster or
17 sub-postmistresses, and you mentioned that specifically
18 in relation to which contract may have governed the
19 terms and conditions of (Inaudible).
20 Subject to the contract point, is there any material
21 distinction in any of these cases based on the
22 particular employment status of a particular
24 MR ALTMAN: Subject to the contract, my Lord, no.
25 LORD JUSTICE HOLROYDE: Yes. Good, very helpful indeed.
1 Thank you.
2 Right, we will sit again at 2.00, please.
3 (1.01 pm)
4 (The Luncheon Adjournment)
5 (2.00 pm)
6 LORD JUSTICE HOLROYDE: Yes, Mr Altman.
7 MR ALTMAN: Can I invite the court, please to bundle A,
8 tab 51, so if your bundles are (Inaudible), the last
10 LORD JUSTICE HOLROYDE: Tab 41?
11 MR ALTMAN: 51, my Lord.
12 LORD JUSTICE HOLROYDE: 51. Yes.
13 MR ALTMAN: Mr Moloney's skeleton argument on behalf of the
14 appellants he represents. May I invite attention to
15 page 1896, which is paragraph 3(g). Among the points
16 there made is the enduring nature of the conduct by
17 which the 26 cases have been conceded on the basis of on
18 the basis of ground 1, argues Mr Moloney, is a palpable
19 factor; in the situation before the court it is a very
20 (Inaudible). It doesn't represent a single incident of
21 finding balanced law enforcement, for example.
22 Then two pages on, at 1898, where Mr Moloney deals
23 with the concessions, at 4(d), on page 1898:
24 "Moreover it is submitted that the facts which have
25 founded the grounds and concessions should not be
1 treated as representing the worst of the respondent's
2 conduct in the context of whether the grounds were made
3 out in relation to the other appellants."
4 It is, may I observe, understandable that Mr Moloney
5 highlights what he calls the enduring nature of the
6 conduct, and the fact of the respondent's concessions on
7 limb 1 of the process. We submit it would be
8 problematic and not in the interests of justice to
9 equate those concessions with an enduring globally
10 applicable limb 2 of the process.
11 The concessions, as the court would expect, were
12 arrived at following extensive and careful consideration
13 of the facts in the cases in which they were made.
14 Indeed it is for that very reason that while concessions
15 were linked to limb 1 abuse of process in all but three
16 cases on the facts, concessions on limb 2 have been made
17 case specifically only in four, which happen to be
18 Mr Moloney's clients.
19 While these failings endured, in the sense that they
20 lasted a great deal of time, if, given its reliance on
21 Fujitsu, as I are said before, Post Office reasonably
22 assumed Horizon was robust, whether and, if so, when it
23 was no longer reasonable to assume so, it was not
24 capable of simple identification without
25 an investigation of and potentially evidence from,
1 a number of people from different parts of the
2 Post Office's business, as well as Fujitsu. We do not
3 suggest, I make it clear, that should happen, but we
4 suggest that is the position.
5 It is submitted that the inherent danger of adopting
6 the global approach on these cases mean that without
7 case fact sensitive analysis, with relevant factors of
8 balance for the court to exercise its judgment and its
9 discretion, unfairness and indeed injustice could
11 What does the balance include?
12 It includes, we suggest, factors such as the time
13 period in which the alleged offence or offences took
14 place. The nature of the offence, its frequency and
15 duration, the version of Horizon involved. As I said
16 a little earlier, one version being less robust than the
17 other, in the way that Mr Justice Fraser defined it in
18 the Horizon judgment, at paragraphs 36 and onwards.
19 The individual facts underlying the alleged offence
20 or offences. Was there a confession to wrongdoing
21 before any previous (Inaudible)? And the direct and
22 indirect impact of the failures of the investigation and
23 disclosure on the case.
24 All, we suggest -- and these are not proscriptive or
25 exclusive, but all are relevant factors to go into the
2 Again, the referred cases range from 2001 to 2013.
3 What may appear to be a tenable argument for limb 2 in
4 a case in, say, 2010 or after, based on the information
5 then available to individuals within the security and
6 prosecution teams, may not be such a tenable argument
7 for a case that was prosecuted nine years before, in
9 Thus the individual cases we emphasise are not
10 simply fact sensitive; they are also time sensitive. We
11 submit that reliance on Horizon of itself was not unfair
12 and it doesn't mean that the respondent should no longer
13 be prosecuted because the combined failures of
14 investigation and disclosure that render the convictions
15 for limb 1 abuse of process, where the prosecution and
16 conviction were dependent on the reliability of Horizon
18 Also, we submit, and we don't complain about,
19 reliance on a disparate array of documentation taken
20 from the post-convictions disclosure exercise does not
21 provide any safe picture on which to find the presence
22 of limb 2 abuse in every case prosecuted by the
23 Post Office between 2001 and 2013.
24 The difficulty is that even where a document is
25 relied on, which presents an adverse picture of the
1 individual who wrote it, that doesn't mean that every
2 other prosecution (Inaudible) and opinion by others
3 within the organisation over the years, as I said
4 a little earlier, subscribe to the same view.
5 If it is the one and only example of such conduct,
6 then it is difficult to see how it can be applied to
7 everyone and even more difficult to see how it can be
8 applied to events before the document was ever written.
9 May we take just a few examples, documentary
10 examples, to highlight the issues? The court might have
11 in mind why caution is needed before reliance is placed
12 upon them.
13 At paragraph 9(a) of Mr Moloney's document, at
14 page 1901, which you had open at tab 41, you will find
15 there reference to something Mr Moloney made some
16 submissions about yesterday because of our particular
17 response to it. An expressed preference of Post Office
18 to pursue criminal charges which would more easily
19 achieve a confiscation order:
20 "This was consistent with asset recovery being the
21 dominant factor in decision making."
22 Let's look at the memo itself, because I don't think
23 the court has seen it. It is in the first volume of
24 bundle C, behind the first tab, at page 1. It is dated
25 8 February 2006. You will see that the defendant is
1 cited, at page A/322, it is not the number of the
2 appellant. The above named appeared at a Magistrates'
3 Court on 23 January:
4 "John Glove(?) of our agents attended. Counsel
5 appeared for defendant. The defendant has offered
6 an original basis of plea indicating that he is prepared
7 to plead guilty to five of the seven accounts, namely
8 the false accounting charges. Also willing to pay the
9 outstanding sum by monthly instalments of £2,000 per
11 Skating over the next paragraph:
12 "The pleas in effect opened the question as to
13 whether or not we wish to proceed with these specific
14 proceeds of crime offences, in particular charge 4
15 brought under section 328, in other words ...(Reading to
16 the words)... The advantage of this offence is that it
17 automatically brings the defendant into the recognition
18 of criminal lifestyle under section 75(2) of the Act.
19 If the pleas of false accounting were accepted, then
20 they would need to make applications for the defendants
21 and submit to the Crown Court under section 70 of the
22 Proceeds of Crime Act ..."
23 Et cetera, et cetera. Over the page:
24 "There are more hurdles to jump through than under
25 the section 328 offence."
1 Now, set against the submission which is made in
2 Mr Moloney's document, one may have thought that what
3 was being said there was improper.
4 In fact, this defendant was not only charged with
5 five offences of false accounting, but also two offences
6 under the Proceeds of Crime Act. Ms McFarlane, the
7 lawyer who is the author of this document, raised the
8 issue, as you can see. The issue was one of
9 acceptability of the plea, not about whether the
10 individual should be charged or improperly looking only
11 at the asset recovery outcome as influencing the
12 decision whether to charge or not.
13 At the time of the memorandum in 2006, it was the
14 fifth edition of the Code for Crown Prosecutors, the
15 2004 edition, which was in force, accepting guilty pleas
16 which is dealt with at section 10 of the code.
17 Section 10.5 of the code provided:
18 "When guilty pleas are offered, Crown prosecutors
19 must bear in mind the fact that ...(Reading to the
20 words)... offers can be made with some offences, but not
21 with others."
22 Perhaps I don't need to remind your Lordship,
23 my Lord, Lord Holroyde, about the case of Condon(?) and
24 what you had to say in that court and in that judgment.
25 You made plain the distinction must be drawn -- this is
1 in bundle B, at tab 29. We need not look at it --
2 between the legitimate consideration in confiscation
3 proceedings and prosecution being improperly motivated
4 by the prospect of financial gain:
5 " ... falls within the former category. It is
6 implicit in the 2004 code, by reference to ancillary
7 orders, that it was appropriate, indeed mandatory, for
8 a prosecutor to have regard to the court's ability to
9 make a confiscation order when deciding whether to
10 accept pleas."
11 Section 5.9(b) of the same code also made explicit
12 reference to confiscation as a relevant factor to the
13 assessment of whether a prosecution was in the public
14 interest as part of the (Inaudible) test.
15 So, quite simply, what we say is a criticism based
16 on this document is, with respect to Mr Moloney,
17 completely misplaced. She was talking about the
18 acceptability of pleas being offered vis-a-vis the
19 possibility of confiscation. It was about the
20 acceptability of the plea, not about the charging
22 Another example, returning to Mr Moloney's document
23 at 1902, behind tab --
24 MR JUSTICE PICKEN: Mr Altman, sorry, just the last
25 paragraph of this memo, do you place reliance on that as
1 demonstrating that -- I think it is saying that even
2 going on the basis of plea, in other words the plea of
3 guilty to five of the seven, there is still an ability
4 to proceed under the Proceeds of Crime Act by taking the
5 case to the Crown Court?
6 MR ALTMAN: Yes, she was weighing up the difficulties and
7 what any prosecutor would do.
8 I mean, I would suggest that if one saw this with
9 the CPS logo at the top of the letter, one would not bat
10 an eyelid.
11 MR JUSTICE PICKEN: The short point is, even acceptance of
12 guilty pleas for 5 of the 7, without the Proceeds of
13 Crime Act offences, would still enable there to be
14 a recovery of proceeds.
15 MR ALTMAN: Yes, it's just a different process. Yes.
16 MR JUSTICE PICKEN: Thank you.
17 MR ALTMAN: Paragraph 9(e) of Mr Moloney's document, at
18 1902, behind the tab (Inaudible), we come back to --
19 I think I mistakenly referred to this document as
20 Mr Moloney referring to it yesterday, when in fact it is
21 the document I am coming to, where he says, at
22 subparagraph (e):
23 "There was reference within the disclosure to
24 the prosecution being or not being closing the 'business
25 interest' of the Post Office. There is no apparent
1 lawful basis on which the respondent could have decided
2 to prosecute individuals based upon their own business
4 The document is to be found at page 49 of the same
5 volume at bundle C, tab 6. We find, at page 49,
6 an email from Jarnail Singh, who was the Post Office
7 in-house lawyer. It is sent on 10 December 2012 to
8 Martin Smith, Martin Smith was a solicitor at
9 Cartwright King, and copied to Sharon Jennings(?), who,
10 if my memory serves me, I think was in-house
11 Post Office, but I may be wrong.
12 You will see the subject is ciphers B038, not one of
13 the appellants before the court. Martin -- John Scott
14 was the decision maker, concur with counsel, Will
15 Martin's advice that it is not in the (Inaudible)
16 interest or public interest to proceed with the
17 prosecution of ...
18 "Martin could you write to the defence and the court
19 of the business decision and have the case listed for
20 a short hearing where prosecution counsel should be
21 instructed. But this agreed action must say to the
22 defence in court is not connected with the Horizon
23 system integrity and rather simply reflects the
24 defendant's health and associated issues."
25 The document is relied upon not for the final
1 (Inaudible) and what the email says, although
2 I recognise that should never have been suggested. But
3 it is in relation to what was originally granted as
4 a business interest decision. Whereas the document
5 itself shows that it was Mr Singh suggesting it was not
6 in the interests of the business, in other words
7 Post Office, or the public interest to proceed.
8 We have made clear before you that this, we submit,
9 was not about a commercial decision whether or not to
10 prosecute. The business of the Post Office was not to
11 prosecute, but rather, as we know, to operate branches
12 and offer the range of services it did. Post Office
13 prosecutions were a facet of that business. Its
14 prosecution decisions were made under the Crown
15 Prosecution Code for Crown Prosecutors. It was proper
16 under the full code test to take the business'
17 interests, that is Post Office's interests, into account
18 as part of the public interest considerations in the
19 second stage of the test, as is evident in that
21 To extrapolate from it, or indeed from any similar
22 document, that prosecutorial decisions were motived by
23 financial interests or were at the heart, as was said,
24 of its decision making is just not justified. Indeed,
25 if that allegation were right, the court would expect to
1 have been invited to consider more than just this one
2 document, or an extract, as happened yesterday, from
3 some board minutes from 2012, which albeit triumphal,
4 you will remember, about winning more Horizon cases is
5 nothing to do with financial interests.
6 A third and final sample document I invite the
7 court --
8 MR JUSTICE PICKEN: Mr Altman, I am so sorry, again. If
9 this was a CPS document rather than a Post Office
10 document, it wouldn't say, would it, "it is not in the
11 CPS interest" or public interest; it would just say
12 public interest?
13 MR ALTMAN: But because this a private prosecution, the
14 private prosecutor was fully entitled to have his own
15 interest taken into account.
16 Where it becomes problematic is if that decision
17 making is based on improper or collateral motives. What
18 I am saying is this document is not evidence of Mr Singh
19 taking account (Inaudible).
20 MR JUSTICE PICKEN: Thank you.
21 LORD JUSTICE HOLROYDE: Really your submission, Mr Altman,
22 is in the first line. It should be read as:
23 "Not in the interest of the complainant or in the
24 public interest."
25 MR ALTMAN: Absolutely. As your Lordship will be well
1 aware, and as the court will be well aware, the
2 (Inaudible) itself is obliged to take account of the
3 victim's interests.
4 The final (Inaudible) in the series, just a soupcon
5 perhaps of what there is, is one that's referred to by
6 Mr Moloney, paragraph 68(i) of the speaking note which
7 you were handed yesterday. Perhaps the easiest thing is
8 simply to take you to a document so you can see
9 reasonably what it is. It is divider 13 in bundle C, at
10 page 106.
11 What Mr Moloney said yesterday about this
12 document -- which I will come to in a second -- is --
13 and you will remember the phraseology:
14 "On many, many occasions an attitude of resistance
15 to such investigation was evidenced, they conclude ..."
16 Here is the reference to this document:
17 "A suggestion to a defendant's solicitor that the
18 service of ARQ data and records of phone calls to the
19 help desk where Horizon's integrity was (Inaudible)
20 'expensive', and that provision of it might be
21 'a complete waste of time and money', because other
22 sub-postmasters in the past have pleaded guilty,
23 pointing out that 'the provision of data by Fujitsu is
24 not good service'. The letter states that the
25 Post Office will only pay for provisional updates of
1 which they consider to be relevant."
2 The letter is dated 14 August 2009, the individual
3 is ciphered here as A028. I am sure Ms Busch will not
4 mind if I say that A028 was Seema Misra. This was the
5 letter which went to her first solicitors, The Castle
6 Partnership, and it is right that I should go through
8 "I understand [says the author] ... in the criminal
9 law division from the prosecuting counsel on the last
10 occasion ...(Reading to the words)... and the
11 Post Office has purchased this system from Fujitsu in
12 the same way that any other company would purchase goods
13 or services for its business. Other than that Fujitsu
14 is not in any way an associated company of the Post
15 Office. The request -- and I think this was a request,
16 I think I am right in saying, for about two and a half
17 years' worth of ARQ data -- has been put to Fujitsu and
18 replied to and received by the person who liaises with
19 this company. The data will take some six to eight
20 weeks to produce. Additionally, your client made 107
21 calls to the Horizon help desk during her period of
22 tenure, which is placing roughly two to three calls
23 a month. In order to provide the data, Fujitsu will
24 wish to know exactly what is required and for exactly
25 what period."
1 Pausing there, this is not an outright refusal, it
2 is initially a request to find out what data is actually
4 "Please could you also advise as to why you consider
5 the data relevant? You already have the notice of
6 additional evidence ...(Reading to the words)... Fujitsu
7 dealing with calls to the helpline."
8 Then this:
9 "The retrieval of data by Fujitsu is not a free
10 service. It is very expensive and depends upon the
11 amount of data which has to be retrieved, which is why
12 you are requested to be very precise. At that stage
13 a firm quotation can be obtained and counsel will be
14 asked to give further advice as to disclosure on payment
15 for the service. The Post Office went on to ...(Reading
16 to the words)... that counsel considers the data
17 irrelevant. You will of course be aware that the same
18 system operates around the country. It is not
19 applicable to all kinds of sub-Post Office. I have set
20 out the matter above quite clearly because in the past
21 many thousands of pounds have been spent on obtaining
22 this type of data subsequent to which a late plea of
23 guilty is tendered, which means the exercise has been
24 a complete waste of time and money."
25 So, those were the circumstances in which that was
1 said, and in view of the timescale these letters would
2 now fall to apply.
3 If I can simply ask the court to go back into tab 12
4 in the same bundle, page 103, this is the second
5 document that Mr Moloney refers to under
6 paragraph 68(ii). It is an email of 4 August, so
7 10 days before the letter we were just looking at
8 regarding the same case, Mrs Misra's case, from
9 Dave Posner(?) (Inaudible) manager of the post office,
10 to Jon Longman, Post Office Investigator:
11 "Due to the size of the request, I can't authorise
12 Fujitsu to proceed at this stage. It equates to
13 approximately 31 ...(Reading to the words)... we do
14 assist where we can and where requests are reasonable in
15 terms of our quota ... other parts of the business,
16 small potential requests, for a number of potential
17 requests ..."
18 This is the part quoted in Mr Moloney's speaking
20 "... we can take a quote from Fujitsu for the work,
21 which will then sit outside our quota. The defence can
22 then (1) pay up, (2) seek Legal Aid and pay up
23 ...(Reading to the words)... many cases plead guilty at
24 the 11th hour and/or ... by experts and challenged ...
25 the data ..."
1 I'm not suggesting that at all, but the fact remains
2 again -- and really this is just a cautionary
3 submission -- that this is not a document to refuse the
4 defence ARQ data, but rather a requirement in which
5 (Inaudible) but the defence solicitor relied in greater
6 specificity as to what data was requested and why, and
7 indeed the matter was requested by the trial judge on
8 a section 8 application, who agreed with prosecuting
9 counsel, not that the updates should not be disclosed,
10 but the ambit was far too wide. Importantly, some ARQ
11 data was indeed provided to the defence. So, again, one
12 simply submits that a little care has to be taken about
13 how these documents were interpreted.
14 LORD JUSTICE HOLROYDE: I don't understand that, Mr Altman.
15 The first couple of paragraphs mean --
16 MR ALTMAN: Of?
17 LORD JUSTICE HOLROYDE: Of this email. If I have understood
18 it correctly, the Post Office has chosen to enter into
19 contractual terms with Fujitsu which impose a modest
20 limit on the number of ARQs they can request, and that
21 is an inhibition on disclosing material to the
22 prosecution, which makes it necessary to consider
23 everything on a case by case basis.
24 Is that a fair picture?
25 MR ALTMAN: It is certainly not an unfair picture. The
1 Post Office, yes, the contract was in Fujitsu's favour
2 in that regard, and the Post Office did have quotas,
3 otherwise it cost a lot of money to get the ARQ data.
4 But it doesn't mean at that say the Post Office didn't
5 obtain the data, they did, but it was simply
6 a recognition that there were other deserving cases.
7 So, my understanding of the thrust of this email is that
8 the quota system was a limitation and, in other words,
9 it had to be dealt with fairly.
10 In other words, rightly or wrongly, a request for
11 two and a half years' worth of ARQ data was not
12 reasonable. To have ARQ data was reasonable and there
13 was ARQ data served on the case of Mrs Misra but not two
14 and a half years' worth. That is the difference.
15 LORD JUSTICE HOLROYDE: The two and a half years was
16 the period caught by the terms(?), wasn't it?
17 MR ALTMAN: I agree it was.
18 LORD JUSTICE HOLROYDE: And the period during which
19 information requests for (Inaudible)?
20 MR ALTMAN: Yes, but we don't know what those requests are
21 and they don't necessarily tell us that they were all in
22 relation to shortfalls in her balance(?) accounts.
23 LORD JUSTICE HOLROYDE: Of course not, no. Of course.
24 MRS JUSTICE FARBEY: Could I ask a question about comparing
25 page 103, which we were just looking at, with 107, which
1 we just looked at.
2 On 103, it is signed by Dave Posner, (Inaudible)
3 manager, it looks like on 4 August 2009, and then we
4 have, at 106, 107, signed by Phil Sayer(?), from the
5 criminal law division, from 14 August 2009, both of them
6 seem to me -- do correct me if I have misunderstood --
7 that the backdrop in Post Office's mind that if someone
8 pleaded guilty at the 11th hour, the, hey, the whole
9 disclosure process has been a bit of a waste of time.
10 Is that a fact that operated on the mind of the
11 Post Office?
12 MR ALTMAN: I can't say because I am not in the mind of the
13 individuals who wrote these things. You may be able to
14 draw an inference but from my submission: what is
15 actually been said is that there is a financial limit
16 and a quota on these things, and in cases where, at that
17 stage, people pleaded guilty having asked for ARQ data,
18 which costs money, then all that is being suggested is,
19 superficially at least, it looked like the money was
20 wasted. But one can read into that what my Lady
22 But it is a harsh judgment to suggest that it was
23 simply (Inaudible) reference the way Mr Moloney put it
24 in his skeleton argument was merely a waste of time and
25 money. All that was being said is where people plead
1 guilty at the last minute, that is the appearance of
2 what is happening in terms of this disclosure.
3 As Ms Johnson reminds me, it also depends on whether
4 the individual may have voluntarily confessed to false
5 accounting, for example, or to taking money from the
6 till for whatever reason. There will be a number of
7 factors that would go to this. Although the email was
8 perhaps not felicitously worded, it is an internal
9 email, it doesn't necessarily suggest that the
10 disclosure process, insofar as ARQ data was concerned,
11 was itself at fault.
12 So, what we submit is that, in terms of these
13 documents, care has to be taken before reading into them
14 more than they in fact reveal. Before concluding that
15 they apply across the board to every prosecution
16 thereafter, as I say, or even before they were created.
17 Many documents upon which reliance is placed
18 originate from cases which are not before the court, or
19 they are generic in nature. The only documents, as
20 I have understood it, which Mr Moloney referred to in
21 his original grounds of appeal on behalf of all of the
22 clients he represents, and indeed his first skeleton
23 argument on intuition, there was something like 26
24 documents, six of which related to the Seema Misra case
25 and one of which related to Jacqueline McDonald, who is
1 one of Mr Moloney's clients. As far as I was able to
2 judge, none of the others case specifically referred to
3 any of his clients.
4 Can I please turn on to the appellant page, and just
5 look at something that has been said on his behalf? At
6 tab 48 of bundle A, page 1856, and it is Mr Saxby's
7 ground two skeleton argument. At page 1858 --
8 LORD JUSTICE HOLROYDE: Sorry, which bundle are we in?
9 MR ALTMAN: File A, my Lord. Bundle A, tab 48.
10 LORD JUSTICE HOLROYDE: You have to bear with me, Mr Altman.
11 Right, A/48.
12 MR ALTMAN: Tab 48. Page 1858.
13 LORD JUSTICE HOLROYDE: Yes.
14 MR ALTMAN: What Mr Saxby argues on behalf of Mr Page is:
15 "The role of the Post Office as a private prosecutor
16 is an important consideration in the determination of
17 ground 2. Post Office acted as victim, investigator,
18 and prosecutor. It may also be noted that upon
19 conviction the Post Office would stand to materially
20 benefit from confiscation proceedings. Although in the
21 case of this appellant ...(Reading to the words)...
22 presumably on account of him losing his business and the
23 resultant bankruptcy. The Post Office also stood to
24 gain from a convicted defendant's loss of their
1 It continues into paragraph 11:
2 "The overarching theme of the Post Office's approach
3 in prosecuting seems to have had at its heart a desire
4 to preserve false confidence in its own Horizon system,
5 even if that would contribute to the mismanagement of
7 Well, I have made submissions about that kind of
8 submission earlier, I'm not going to repeat.
9 The important point is, in Mr Page's case, no
10 reference is made to any evidence, certainly not in his
11 own case, that Post Offices instigation of his
12 prosecution was improperly motivated or influenced by
13 the prospect of financial benefit. As Mr Saxby himself
14 points out, there was no order for costs or compensation
15 given Mr Page's financial position.
16 So, my Lord, that is all I am going to say on the
17 bulk of submissions we heard.
18 Could I return, as I said I would yesterday evening,
19 to some comments that were made yesterday.
20 In submissions Mr Moloney indicated that the number
21 of prosecutions by the Post Office went from two or
22 three a year prior to Horizon, up to 14 to 50 after
23 Horizon's introduction, and that was in response to
24 a question from Mr Justice Picken on the issue of scale.
25 Overnight, those in the back office, as it were,
1 have been busy, by which I mean Peters & Peters poring
2 over all the material they have to provide the court
3 with some figures.
4 In 1996, there were 11 prosecutions of
5 sub-postmasters; in 1997, 22; in 1998, 41. None of
6 those could have relied on Horizon.
7 The only gap in information is what we cannot say,
8 whether they were based on discrepancies or shortfalls.
9 In 1999, there were 60 in total. It is not believed
10 that any were Horizon based.
11 In 2000, once roll out had started, there were six
12 prosecutions; in 2001, 41; in 2002, 64; in 2003, there
13 were 56.
14 I am going to take it all the way to 2013, just to
15 manage your expectations, my Lord.
16 In 2004, 59; 2005, 68; 2006, 69; 2007, 50; 2008, 48;
17 2009, 70; 2010, 55; 2011, 44; 2012, 50. Finally, 2013,
19 So, what is clear is that there was an increase in
20 the number of prosecutions after the introduction of
22 However, that is not to say that the increase in the
23 number of prosecutions of sub-postmasters would or
24 should necessarily have put Post Office on notice of
25 problems with Horizon. One of the advantages of
1 Horizon, from the Post Office's perspective, is that it
2 facilitated better detection of theft or fraud and
3 therefore there was almost an inbuilt idea that it was
4 bound to detect more than a paper basis would have done.
5 The Post Office might have expected the digitisation
6 of branch accounts would inevitably lead to an increase
7 in the detection and therefore prosecution for the
8 charges alleged of fraudulent conduct.
9 LORD JUSTICE HOLROYDE: Can I just check, Mr Altman, in case
10 I misheard, that the year 2000, did you say 6?
11 MR ALTMAN: I did.
12 LORD JUSTICE HOLROYDE: And the year 2012?
13 MR ALTMAN: 50.
14 LORD JUSTICE HOLROYDE: Right. I heard that as 15, but that
15 was 50.
16 MR ALTMAN: My fault, I should have enunciated it better.
17 LORD JUSTICE HOLROYDE: Anything you want to say about the
18 position in 2000?
19 MR ALTMAN: There is nothing I can say. That is the figure
20 that we have. I don't understand why -- well, I am not
21 going to speculate.
22 In response to the suggestion that the number of
23 prosecutions is or would have been striking, in the
24 context of sub-postmasters who were recruited for their
25 trustworthiness, we respectfully suggest it should be