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| Jo Hamilton, flanked by her legal team, Tim Moloney QC (l) and Neil Hudgell, arriving at court today |
Day 2, R v Hamilton and others - Court of Appeal, Royal Courts of Justice, London
Today we were told the identity of the Post Office executive who ordered the shredding of documents pertaining to problems with the Horizon IT system. His name is John Scott, and he was, at the time, the Post Office's Head of Security.
Mr Scott's name was revealed by Brian Altman, QC for the Post Office, who criticised the "wholly erroneous" decision taken by Mr Scott, but sought to make clear that when other Post Office executives became aware of Mr Scott's interesting approach to his legal obligations, they quickly put in place procedures to stop anything like it happening again.
This week the Court of Appeal is considering 42 of the 51 Subpostmaster cases which have been referred to it by the Criminal Cases Review Commission. On Monday Mr Altman told the judges that adopting the broad-brush approach favoured by the appellants was wrong in law. Tuesday's approach warmed to the theme, arguing for "detailed and fact specific analysis" so that:
"one can see whether, in any given case, there was any knowledge of Horizon issues in the mind of the prosecutor that would render their decision to prosecute offensive."
There were three strands to the Post Office's defence of the broadsides launched yesterday by the appellants' QC's Tim Moloney, Sam Stein and Lisa Busch.
The first strand was to suggest that just because specific, evidenced, bad things had happened, it doesn't necessarily follow that those specific, evidenced, bad things happened to the appellants.
The second strand was to suggest that when specific people did bad things, they weren't following any kind of corporate groupthink - they were the actions of badly-informed incompetents whose malpractice was spotted and rectified.
The third, slightly wider strand, was that things weren't really as bad as they might seem.
These three points were made to bolster the Post Office's position that it should not concede on Ground 2 of the Criminal Cases Review Commission's Statement of Reasons, which holds that the prosecution of the referred Subpostmasters was an "affront to the public conscience".
Mr Altman was on his feet for most of the day, delivering his submissions in a polished, unhurried manner. He got stuck into the infamous receipts and payments mismatch bug, subject of a "concerning" high level discussion within the Post Office in October 2010, just days before Seema Misra's trial for theft at Guildford Crown Court. The bug was not disclosed to Mrs Misra's legal team, which Mr Altman accepted should have happened, but he also pointed out the bug:
a) didn't affect her branch
b) didn't affect any branch before 2010
Yet, Mr Altman posited, this bug appeared to be a "tipping point" with regard to the CCRC's referral on Ground 2. How could the court, Mr Altman wondered, use this as a basis for allowing all 35 appellants to succeed on Ground 2, when it plainly couldn't have affected most of them?
Seema Misra was in court today, listening intently to Mr Altman's submissions. I asked her what she thought of that point during lunch. She just smiled and shook her head.
Sensitive material
Later in the day Mr Altman went to a Post Office investigator's decision in January 2010 to place an article (possibly the 2009 Computer Weekly piece?) critical of Horizon on a "sensitive schedule" ahead of a court case.
There are strict guidelines on what can go on a sensitive schedule (eg matters of national security) and sensitive evidence is not shown to a defence team. The given reason for the press article's inclusion on the schedule was that it "could be used as mitigation, ie to blame Horizon system for loss."
Mr Altman admitted this should not have happened, but said the article itself had been "supplied with an accompanying letter by a defendant". This meant that the article was already visible to the defendant.
Lord Justice Holroyde asked "In what way does that make it okay?"
Mr Altman tried to give an explanation and then conceded this was "an example of an investigator not knowing what she was doing."
As close students of this scandal will be aware, Fujitsu operated the Horizon system on behalf of the Post Office and the Post Office would often ask Fujitsu to investigate Horizon, provide data from it or give reassurances it was working well. Mr Altman said this raised some important issues:
"At what point, if any" he asked "was it no longer reasonable for the Post Office to rely upon Fujitsu or rely upon what Fujitsu was telling it about its systems? That is the problem. It is a different one, but if Fujitsu was the supplier, was the expert, and on occasions when they supplied Gareth Jenkins as an expert witness, or he was called as an expert witness, to what extent was Post Office not permitted to rely upon him when he said the system was robust?"
This theme of what it was reasonable for the Post Office to get from Fujitsu, and what it should have taken steps to confirm for itself is an interesting question. Mr Altman pursued it rhetorically:
"if the court arrives at the answer, "They ought to have known something", then the question is: what and how much? Should they have had technical know-how or were they entitled to rely... on what they were being told? At what point did it become unreasonable for those individual lawyers, and the Post Office more generally, to rely on assumptions that were being made about reliability?"
The Clarke Advice
Much was made yesterday of the Clarke Advice on document retention, which came about after someone at the Post Office appeared to demand that documents relating to a meeting set up to disclose issues of Horizon's integrity be "shredded."
At the time, the barrister Simon Clarke, who worked for Post Office solicitors Cartwright King, wrote a note in response to the shredding directive making it clear that telling people to shred minutes of meetings they had attended was potentially perverting the course of justice.
Mr Altman offered some context to what happened. First of all he revealed that the person who demanded documents be shredded was the Post Office Head of Security, John Scott. Mr Altman noted that "Mr Scott, had - and perhaps this is the least can be said of it - a wholly erroneous view of disclosure obligations."
He then explained that as soon as the Post Office's senior criminal lawyer Jarnail Singh heard of Mr Scott's wheeze he asked Cartwright King to ask their barrister Simon Clarke if doing so was actually okay. Or, rather, in his own scrambled word soup:
"can he look into the common myth that emails, written communications, et cetera, of meetings, if it is produced, it is then available for disclosure. If it is not, then technically it isn't. Possibly true of civil cases, NOT CRIMINAL CASES?"
Simon Clarke's response (re potentially perverting the course of justice) was escalated to the Post Office's General Counsel, Susan Crichton, who wrote to Cartwright King on 16 August 2013 saying she was:
"deeply concerned at the suggestion in Simon's note that there may have been an attempt to destroy documentary material generated in connection with the Horizon Calls, specifically any minutes of the calls."
Mr Altman told us Ms Crichton's letter led to a new Post Office protocol on document retention and disclosure being produced on 13 October 2013, which made it clear that:
"As a prosecutor, Post Office Ltd is under a positive duty to identify, record and retain any information which might assist a defendant in preparing or presenting his case or which might undermine the prosecution case against him."
The protocol ordered all concerned to:
"take all reasonable steps to ensure that we are always in a position to fully meet our disclosure duties. Accordingly we will in future collect and retain any and all information which might suggest that Horizon Online may not be working as it should."
Mr Altman was at pains to tell the court that the minutes of all the Horizon disclosure meetings did survive and were disclosed to the appellants, so nothing of importance had actually been destroyed by anyone.
As a curious by-note, within days of the disclosure and document retention protocol being established, Susan Crichton vanished from the Post Office.
John Scott stayed as Head of Security until 2016.
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| Mark (l) and Matt O'Connell |
Dawn O'Connell
It's sometimes difficult to keep sight of the fundamental reason we are in court this week. A reminder was provided by Ben Gordon QC, right at the end of the day. Mr Gordon represents Dawn O'Connell, a Post Office manager in Northolt who was prosecuted for theft and false accounting by the Post Office on the basis of Horizon evidence. Dawn died last year, but her brother Mark and son Matt were in court five today to hear Mr Gordon's statement. Mr Gordon dialled in remotedly, but it was a good line, and his voice could be heard clearly and forcefully in the court. His words were very moving.
I'd never met Matt or Mark before, but we swapped numbers. As I was walking home Mark called me up and asked me to read out what Mr Gordon had said in court. He put me on speakerphone so his mum could hear. As I read from my notes, standing in a doorway on my mobile phone in The Strand, I could hear her sobbing in the background.
This is the transcript of Mr Gordon's statement in full:
"My Lord, Ms Dawn O'Connell is not here today, having passed away in September of last year. I myself never had the chance to meet Ms O'Connell. Her appeal against her conviction is advanced or continued in her son Matthew's name. Matthew O'Connell and Dawn's brother, Mark, as I understand it, my Lord, are present in court today, next door in the overflow court.My Lord, in the years following her conviction in 2008, and the serving of her suspended sentence, Ms O'Connell's health, both physical and mental, declined dramatically. According to her family and loved ones, her personality also changed, irrevocably. She became increasingly isolated, ultimately reclusive, as described by her family, and struggled desperately to deal with the stigma of her conviction.She suffered, my Lord, with severe bouts of depression. She did receive treatment, medication and counseling, but she sunk inexorably into alcoholism. In her latter and final years, my Lord, I understand that Ms O'Connell made repeated attempts upon her own life. In September of last year, her body succumbed to the damage caused by her sustained abuse of alcohol and she died tragically at the age of 57.My Lord, on behalf of her son, her brother, and all her surviving family members and friends, I feel compelled to tender to the court their sincere regret and deep anguish that Dawn is not here today to hear her case being argued.My Lord, Mrs O'Connell's conviction dates back to August of 2008 and Harrow Crown Court, where, upon her own pleas of guilty, she was convicted of five counts of false accounting. One further count alleging theft of approximately £45,470 was ordered to lie on the file on the usual terms and was not proceeded with. A pre-sentence report was ordered and, a month later, in September, Ms O'Connell was sentenced to 12 months imprisonment suspended for two years, with a requirement for the completion of 150 hours of unpaid work.My Lord, between 2000 and 2008, Ms Dawn O'Connell worked as a branch manager, a Post Office branch manager in Northolt. My Lord, as with many others which are before the court today, and as my learned friend Mr Saxby did, where it is applicable to Mrs O'Connell's case, if I may, I echo and commend to the court my learned friend Mr Moloney's submissions. But Mrs O'Connell's case was one in which the Horizon data was central, central to the prosecution and her conviction. The prosecution arose from an unexplained shortfall, or deficit on the system at her branch. When audited, Mrs O'Connell reported the shortfalls and indicated that she was unable to explain the anomaly. Initially, as she explained, she had hoped that the error would correct itself, but over the ensuing months it grew and accumulated.Ultimately, my Lord, having admitted falsifying the accounts in an attempt to conceal the deficit in the hope of preserving her job, she pleaded guilty to the offences of false accounting. Throughout the audit, throughout the investigation and throughout the prosecution, Ms O'Connell repeatedly and strenuously denied theft. As I have said, this count was left to lie on the file.My Lord, as conceded by the respondent in relation to her appeal, there was no evidence of theft or any actual loss at her branch, as opposed to a Horizon generated shortfall. There was no other evidence to corroborate the Horizon data. On the contrary, my Lord, evidence was collected from other employees which attested to Ms O'Connell's honesty and probity.As further conceded by the respondent in her case, no attempt was made by the Post Office, as private prosecutor, to obtain or interrogate the ARQ data. There was no investigation into the integrity of the Horizon figures, and it is recognised that the appellant herself was severely limited in her ability to challenge the Horizon evidence and therefore that it was incumbent upon the Post Office to ensure that the reliability of the evidence was properly investigated and, my Lord, this was not done.The Post Office failed, in my respectful submission, in its duty as a private prosecutor both to investigate properly the reliability of the system by obtaining and examining the data, and to disclose to the appellant or the court the full and accurate position in relation to the reliability of the system. No disclosure was forthcoming in Ms O'Connell's case, my Lord, in relation to any concern or enquiry raised into the functionality of the system.Ms O'Connell's case file demonstrates that the focus of the investigation in her case was on proving how the accounts were falsified, which of course she had admitted, rather than examining the root cause of the shortfall. In fact, as it seems, no effort was made to identify or discover the actual cause of the shortfall or deficit. During the internal audit process, and her interviews under caution, my Lord, Ms O'Connell raised the issues she had encountered with the system and its recurring anomalies. No investigation or disclosure followed.Notwithstanding, and by reference to the balancing exercise which the court is required to undertake in a submission of this kind, Ms O'Connell was a lady of hitherto good character, about whom people were, it seems, lining up to attest to her honesty and integrity. My Lord, in the papers I have seen, I have counted somewhere in the region of 30 character statements, which I think were obtained on her behalf. My Lord, it is conceded by the respondent that for these reasons it was not possible for Mrs O'Connell's trial to be a fair one, thereby amounting to first category of abuse of process.However, as set out, only a short while ago by Mr Moloney on behalf of his clients, and as set out in our skeleton argument, dated 21 January, we would respectfully submit that for the same set of reasons, or in respect of the same failures in the investigative and disclosure exercises, the prosecution against Ms O'Connell was rendered unconscionable, and that bringing it was an affront to the national conscience. Accordingly, my Lord, on her son Matthew's behalf, we respectfully invite the court to quash her conviction on both grounds, or both limbs of abuse of process. My Lord, unless I can assist you any further, those are my submissions on Ms O'Connell's behalf."
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| Dawn O'Connell |
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