This is the unperfected transcript from Court 4:
1 Wednesday, 24 March 2021
2 (10.30 am)
3 Housekeeping
4 LORD JUSTICE HOLROYDE: Mr Stein, two preliminary matters,
5 please, before we start your submissions.
6 First there is an outstanding inquiry from yesterday
7 about the figures for prosecutions, and no doubt that is
8 being addressed. We would be grateful to receive that.
9 MR STEIN: My understanding is that Ms Carey is dealing with
10 that at the moment and is seeking agreement across
11 the parties.
12 LORD JUSTICE HOLROYDE: That is very helpful.
13 Secondly, just to issue a reminder about the wearing
14 of masks by everyone, except those who either are
15 speaking or are liable to have to speak at any moment.
16 Thank you.
17 Submissions in reply by MR STEIN
18 MR STEIN: My Lord, in making these submissions this morning
19 in reply to those put forward by Mr Altman, first of all
20 in a moment I will make a couple of general responses
21 but then I will go to the case of Tague to examine its
22 usefulness within these proceedings, and finally I'll
23 address the questions that have been raised by Mr Altman
24 concerning Mr Clarke, the advices, and then briefly the
25 way that we have described the Post Office and its
1
1 actions as being that generally that comes under
2 a heading of corporate malfeasance.
3 First of all, Mr Altman, in what could be described
4 as a spirited defence of the Post Office, has sought to
5 compare the actions of the Post Office with that of the
6 CPS, and at one stage was seeking to describe the
7 position of the CPS as perhaps not having an in-depth
8 knowledge of such matters as DNA or similar types of
9 technical discussion.
10 But the real difference between the CPS and the
11 Post Office is that the CPS might be forgiven for not
12 understanding its own funding arrangements. It might be
13 forgiven for not understanding how, in fact, money is
14 brought into and spent within the organisation. It
15 might be forgiven for not understanding its own
16 accounting systems. It is much harder to forgive the
17 Post Office.
18 The Post Office is all about the management of its
19 accounting systems. It effectively is and has as its
20 sole purpose what happens by way of financial
21 transactions, their routing through the business and
22 their reliability.
23 The CPS and the Post Office are poles apart in their
24 occupations. The business of the Post Office was, as
25 described, to act as a reliable channel for funds, money
2
1 brought into it and taken out of the business, both for
2 itself and also those people trusted to look after the
3 sums of money coming into branches.
4 Therefore reliability of the Horizon system was very
5 much part of its business. This is very different and
6 a very different position to that of the CPS.
7 Telling also, we suggest, was Mr Altman's attempt to
8 describe what has happened over the 13 years of
9 prosecutions. In that difficulty that we all have as
10 advocates sometimes, where we have to accept that
11 something has gone wrong but we are seeking to limit how
12 far we take that acceptance before the court, he has had
13 to accept that the failures in disclosure over those so
14 many years was serious.
15 We need to remember and remind ourselves that this
16 is 13+ years of failures of disclosure that has only
17 latterly been accepted by the Post Office in the way
18 that it has in accepting those matters and those appeals
19 before this court. That goes beyond what we suggest is
20 Mr Altman's typification of this, as being serious.
21 That, of itself, as Mr Moloney has set out in detail, is
22 an affront to justice.
23 Going forward from those remarks, may I take the
24 court, please, to the case of Tague in bundle B, please,
25 and page 444 is its starting point.
3
1 The decision in Tague was given by
2 Sir Brian Leveson, the President of the Queen's Bench
3 Division. Brief facts only:
4 It concerned an application for extradition of
5 an individual from Spain. The basis of that application
6 was that Mr Tague, through the trial itself -- before if
7 I recall correctly His Honour Judge Roberts -- had
8 absconded. The team on his behalf representing him were
9 able to continue and the trial reached a conclusion, and
10 in absentia he was sentenced to 23 years imprisonment.
11 That was an allegation arising out of an allegation of
12 drugs and firearms.
13 So the simple facts were: he absconded during trial
14 and refused to come back. Later on there was
15 an application for extradition. During the application
16 for extradition -- and this was analysed by the court --
17 it seems there were then questions as to exactly what
18 had been put forward and what was meant. In essence,
19 what happened was that the application for extradition
20 had been granted, as was the practice in Spain at the
21 time. I read from the headnote:
22 "... on the condition that the offender would be
23 entitled to a retrial on his return. But in fact no
24 such entitlement applied in the law of England
25 and Wales."
4
1 There was then a discussion before the court, and
2 evidence provided as to who knew what within the
3 National Crime Agency regarding what had been set out in
4 the application and any supporting documentation.
5 Witness evidence was provided that said that
6 essentially these documents, once granted, the documents
7 are then in truth not really examined. Part of the
8 reason for that is because they would have required
9 translation at any particular time.
10 So in short, the application for extradition from
11 Spain of an individual who had absconded from a very
12 serious case. The position therefore that was being
13 examined on behalf of the applicant by Mr Summers(?)
14 Queens Counsel was whether that post-conviction
15 behaviour -- in other words effectively, it seems, being
16 suggested that the National Crime Agency had contributed
17 to the impression given to the Spanish state that
18 a trial would be granted to Mr Tague on return.
19 So that background is how we then get to the
20 consideration of whether this authority means anything
21 to the question of: can post-conviction matters be taken
22 into account? Page 453, please, paragraph 34.
23 Paragraph 34 sets out in very short terms the
24 argument presented by Mr Summers. On behalf of the NCA,
25 Mr Cordwell accepted as follows:
5
1 "Mr Peter Cordwell for the NCA, whilst challenging
2 that it was appropriate to grant relief in this case,
3 did accept that the authorities described in the concept
4 of abuse of process were wide enough to cover misconduct
5 post-trial, with the result that it was necessary to
6 examine the case on that basis and on its merits."
7 We then go to the part referred to by my learned
8 friend Mr Altman at page 455, paragraph 43. There had
9 been an examination, starting in paragraph 37, of
10 previous abuse of process cases which had in fact all
11 concerned conduct which occurred prior to the conduct of
12 a criminal trial. So there had been some examination of
13 this but, we suggest, and as we will see, very limited.
14 Paragraph 43:
15 "It is therefore not surprising that although
16 Mr Summers points to the similarity between these cases
17 and the present, both concerning extradition allegedly
18 in breach of a foreign law, he accepted that applying
19 the abuse of process to the present case would
20 constitute an extension of the jurisdiction. In short,
21 he argues that public confidence in the criminal justice
22 system generally justifies extending the second category
23 of case beyond the trial, which is subject to judicial
24 control, to post-conviction conduct, which is not.
25 "Put another way, it entails a broader understanding
6
1 of the concept of the criminal justice system, beyond
2 criminal proceedings, to the enforcement of any
3 resulting sentence.
4 "I recognise the force of the argument but for my
5 part I am not prepared to accept that it is correct.
6 Given Mr Cordwell's concession, however, the
7 jurisprudential basis for such an extension has not been
8 the subject of adversarial argument. Suffice to say,
9 without being taken to agree with the proposition, for
10 the purposes of this case I am prepared to assume that
11 which has been conceded."
12 Indeed then the approach is set out at the following
13 page, page 456, as including the post-conviction
14 conduct, in other words the application for extradition,
15 the series of potential misunderstandings that have been
16 set out and the examination before Sir Brian Leveson.
17 In our respectful submission, therefore, this
18 authority does not stand in the way of saying that
19 post-conviction conduct is forbidden from examination in
20 limb 2 abuse cases. In fact, what it does say is, for
21 the purposes of that case, on those facts, the court,
22 without having had adversarial argument, was prepared to
23 accept the concession made by Mr Cordwell.
24 It does not stand as an authority, we suggest,
25 therefore, for barring post-conduct proceedings. Which
7
1 is precisely why, in the disclosure arguments we put
2 before this court concerning this particular matter, the
3 conduct of the Post Office post-conviction, if it has
4 similarities, if it has relevance to the type of conduct
5 described by Mr Justice Fraser, in other words the way
6 that Mr Justice Fraser described the conduct of the
7 Post Office overall as being oppressive, if it has the
8 same relevant type of behaviour within it, there is no
9 reason whatsoever why it should not be taken
10 into account.
11 And we would be surprised, those of us who on
12 occasions appear on behalf of the (inaudible word due to
13 noise), we would be surprised if in a particular case
14 when defending an individual, if my learned friends, who
15 often appear on behalf of the prosecution in relevant
16 criminal cases, if they were not to refer to
17 post-offence behaviour as having some relevance to the
18 offence or the offending conduct, if it had
19 a connection.
20 Our respectful submission is that post-conviction
21 conduct, if it is relevant to the behaviour described
22 within this appeal, in other words ongoing behaviour,
23 ongoing behaviour of the oppressive conduct type or
24 ongoing behaviour to conceal what had happened, is
25 entirely relevant to these proceedings.
8
1 MR JUSTICE PICKEN: In any event, as I think was canvassed
2 with Mr Altman yesterday, we are not talking here about
3 whether the Post Office has itself committed a criminal
4 offence. We are trying to work out, it may be said, in
5 a more flexible way by reference to the material placed
6 before us by the Post Office, whether there is
7 abusive conduct.
8 MR STEIN: Yes.
9 MR JUSTICE PICKEN: Therefore I would at least suggest that
10 concepts which might be more strictly acknowledged in
11 the criminal sphere are not perhaps the right concepts
12 for us to be considering here, albeit we are sitting in
13 the Criminal Division of the Court of Appeal.
14 MR STEIN: My Lord, I completely agree.
15 And may I take you, and you may find support in
16 this, to paragraph 49 of Tague.
17 My Lord, this may assist. Paragraph 49 in the
18 judgment, in the description in the judgment:
19 "This problem arises because maintaining confidence
20 in the criminal justice system, or, as it has been put,
21 avoiding an affront to the public conscience, is an aim
22 or aspiration which has to be perceived from different
23 directions. On the one hand there is gross misconduct,
24 which the criminal justice system cannot
25 approbate: cases such as Bennett and Monk(?). And on
9
1 the other hand, however, it is important that conduct
2 and results that may merely be the result of state
3 incompetence or negligence should not necessarily
4 justify what might colloquially be described as a 'get
5 out of jail free' card. In those cases the public might
6 conclude that the justice system was little more than
7 a game."
8 Perhaps the crucial part, therefore, we get to, if
9 this assists:
10 "There is no bright line, and a broadbrush approach
11 is likely to be necessary. In reference to CC v CF,
12 Lord Justice Lloyd Jones put the approach in this way at
13 paragraph 99:
14 "The objective of maintaining the integrity of the
15 legal system can be achieved only by a consideration of
16 the entirety of the conduct in question and untrammelled
17 by any rigid rules."
18 MRS JUSTICE FARBEY: Is there not a difference though
19 between -- the court may not be trammelled, if that is
20 the word, by rigid rules, but you have to give
21 a reasoned judgment, and would it not be said that we
22 have (Inaudible) judgments, so we can make inferences
23 from future events about the past, in that same orthodox
24 way of judicial reasoning and indeed it happens day in
25 and day out in the Crown Courts and we most of us here
10
1 have probably given directions to that effect to juries.
2 But just because we are untrammelled by any rigid rules
3 doesn't mean we give an unreasoned judgment. We have to
4 reach (Inaudible) and to give our reasons.
5 It seems to me that, with respect, you may be making
6 too much of this point, in that isn't an easier route to
7 say we can start from Event A and refer backwards in
8 time to Event B. That is a wholly orthodox way of
9 reasoning, without having to look at what Sir Brian
10 Leveson didn't decide in Tague.
11 MR STEIN: I completely agree, with no caveat to that
12 agreement.
13 The position, though, has been reached and put
14 forward on behalf of the Post Office repeatedly by
15 Mr Altman that Tague is a case that effectively puts the
16 bar down and closes the curtain on behaviour.
17 We disagree. The entirety of this evidence needs to
18 be considered in the round. And evidence that can, by
19 inference, demonstrate the (Inaudible) of the
20 Post Office, at any time, we suggest, can be used by
21 this court to consider and make its judgment.
22 I agree also that the jurisdiction of abuse of
23 process is littered with comments throughout cases
24 whereby each judgment, each case and each factual
25 scenario has to be considered specifically rather than
11
1 there being a point of general application. That is
2 precisely because this jurisdiction, the jurisdiction to
3 control its own process, is indeed a broad jurisdiction.
4 So an example, an example only, of behaviour that
5 this court could take into account and infer therefore
6 from it in relation to.
7 (10.51 am)
8 (Break in live feed)
9 (10.54 am)
10 MR STEIN: Mr Justice Fraser sets this out:
11 "When the Post Office served their evidence of fact,
12 the claimants had asked the Post Office why there was no
13 statement from Jenkins, whether Mr Jenkins was available
14 to give evidence and also whether he was involved as one
15 of the team of what the claimants referred to as the
16 shadow experts. This description was challenged by the
17 Post Office, and the question of shadow experts
18 ...(Reading to the words)... addressed was given for
19 Mr Jenkins' absence in response to these requests or in
20 evidence in the trial, although it was confirmed that
21 Mr Jenkins was not one of the team of so-called
22 shadow experts."
23 512:
24 "There the matter might have rested. However, in
25 the Post Office's written closing submissions
12
1 an explanation of sorts was for the first time provided.
2 This was in the context of two matters: firstly by way
3 of explanation of Mr Godeseth's evidence and potentially
4 to downplay its impact. Secondly in relation to the
5 claimant's complaints about the secondhand nature of
6 some of the Post Office's factual evidence, because in
7 large part this had emanated from Mr Jenkins.
8 "This explanation by the Post Office included the
9 following passages in its written submissions. The
10 claimants understandably complain that Mr Jenkins and
11 the other source of Mr Godeseth's information could have
12 given some of this evidence first hand, taking into
13 account that Mr McLachlan's evidence specifically
14 addressed things said or done by Mr Jenkins in relation
15 to the Misra trial. The Post Office was concerned that
16 the Horizon issues trial could become an investigation
17 of his role in this and other criminal cases. Moreover,
18 the Post Office was conscious that if it only adduced
19 first-hand evidence in the trial it would end up having
20 to call more witnesses than could be accommodated within
21 the trial timetable."
22 Mr Altman referred to Mr Jenkins in his submissions
23 as someone, it seems, who was subject to a police
24 investigation, so understandably hesitated therefore in
25 making any further submissions regarding that.
13
1 We know the background to what has happened with
2 Mr Jenkins, that the position that he was in was
3 considered within the Clarke advice. We know that what
4 happened later on -- and this goes to the question of
5 the rounded consideration of evidence and, my Lady, your
6 point about looking inferentially at the position of the
7 Post Office -- we know how the Post Office reacted to
8 this before Mr Justice Fraser: they actually provided
9 an explanation.
10 Now, we can get into questions of what is privileged
11 and how far they could go in relation to privilege. But
12 this appears to be providing an explanation as to why
13 they are not calling Mr Jenkins which doesn't appear at
14 any stage to coincide with the Clarke advices.
15 So this is an example, we suggest, of
16 post-conviction behaviour that may be influential on
17 this court as to what has happened.
18 Now, whether Mr Justice Fraser, on hearing our
19 remarks, on now having been told, potentially by the
20 press, of what is in the Clarke advice, wants to take
21 independent action as to what has been said to him is
22 another matter entirely. But it does perhaps assist
23 this court, as do the various other remarks made by
24 Mr Justice Fraser regarding the evidence that was
25 provided to him.
14
1 Can I take you, please, to bundle A, judgment
2 number 3, please.
3 LORD JUSTICE HOLROYDE: Yes.
4 MR STEIN: The paragraph within the judgment is, 547,
5 page 260 of the bundle. Judgment number 3, bundle A,
6 page 260, internal paragraph 547.
7 We now deal with the way that Mr Altman sought to
8 attack our description, on behalf of those appellants we
9 represent, of corporate malfeasance. Well, pausing for
10 thought, paragraph 547 at page 260:
11 "These Post Office factual witnesses appear to
12 maintain this view, notwithstanding the weight of
13 material put to them and in the face of internal
14 Post Office documents obtained in disclosure for this
15 litigation. That suggests the view may not be correct.
16 Whether that view is in law or in fact justified can
17 only finally be resolved after subsequent trials. But
18 they remain steadfastly committed in their collective
19 psyche to the Post Office party view, despite such steps
20 having been taken as amendments to the Camelot Software
21 using the Ping Fix and the contents of some of their own
22 internal documents that suggest to the contrary, they
23 give me the impression that they simply cannot allow
24 themselves to consider the possibility that the
25 Post Office may be wrong, as the consequences of doing
15
1 so are too significant to contemplate."
2 Paragraph 548 refers to Mrs Van Den Bogerd, a very
3 senior official within the Post Office who provided
4 evidence before Mr Justice Fraser.
5 Paragraph 548 of the judgment:
6 "Unless I state to the contrary, I would only accept
7 the evidence of Mrs Van den Bogerd and Mr Beale in
8 controversial areas of fact in issue in this common
9 issue trial if these are clearly and uncontrovertibly
10 corroborated by contemporaneous documents."
11 That is the judicial equivalent of not trusting them
12 to tell him if the sky is blue outside without going
13 outside to check.
14 So we respectfully maintain what we have stated
15 within the pleadings, that there is evidence within the
16 material before this court which does demonstrate
17 corporate malfeasance. There is evidence that
18 Mr Justice Fraser considered, having heard that evidence
19 before him, that takes us in the direction of corporate
20 cover-up and, lastly, overall, the conduct of the
21 Post Office throughout, to corporate shame.
22 MR JUSTICE PICKEN: If you look at this passage -- I think
23 in fairness it is probably right to look at
24 paragraph 545 as well, and the way that
25 Mr Justice Fraser, as it were, takes his run-up to 547
16
1 and 548, which is to say:
2 "The problem with the Post Office's witnesses
3 generally is that they have become so entrenched over
4 the years that they appear absolutely convinced that
5 there is absolutely nothing wrong with the Horizon
6 system at all, and the explanation ...(Reading to the
7 words)... either dishonesty or wholesale incompetence of
8 the SPMs."
9 I point that out to you because it may be said that
10 that is the counterbalance to the submission you are
11 urging upon us.
12 MR STEIN: My Lord, may I take you to paragraph 544.
13 MR JUSTICE PICKEN: Yes.
14 MR STEIN: "Regarding Mrs Van Den Bogerd, I find that she
15 was simply trying to mislead me."
16 And then moving onwards later on:
17 "The Post Office has appeared determined to make
18 this litigation, and therefore resolution of this
19 intractable dispute, as difficult and expensive as
20 it can."
21 LORD JUSTICE HOLROYDE: Sorry, I just need to follow those
22 specific references, Mr Stein.
23 MR STEIN: It is paragraph 544, my Lord.
24 LORD JUSTICE HOLROYDE: At the foot of page 259, this is
25 something to do with somebody called Mr Abdulla. And
17
1 then the other matter? Sorry, I just couldn't keep up
2 with my note.
3 MR STEIN: Yes, within the same paragraph, it is the
4 reference to Mrs Van Den Bogerd:
5 "I find that she was simply trying to mislead me."
6 There are a number of references throughout the
7 judgment in relation to her evidence. The tendency was,
8 within the first of the judgments, to judgment number 3,
9 Mr Justice Fraser found roundly that she was trying to
10 mislead him.
11 In the next judgment, number 6, some time later, he
12 essentially came to the conclusion that perhaps the wind
13 had slightly changed but not significantly.
14 LORD JUSTICE HOLROYDE: Thank you.
15 (11.05 am)
16 (Break in live feed)
17 (11.06 am)
18 Submissions in reply by MS BUSCH (continued)
19 MS BUSCH: ... of course, it is true that that does not
20 preclude taking a generic approach to a series of cases
21 which share a common nexus, which clearly is the case
22 here.
23 Before I get to the main point, perhaps Mr Altman
24 suggested at the end of his submissions that he, the
25 appellants, were taking an indiscriminate approach,
18
1 an indiscriminate global approach. But that is
2 (Inaudible) quite wrong.
3 (11.08 am)
4 (Break in live feed)
5 (11.10 am)
6 -- events that took place in 2010 and therefore they
7 did not apply, or certainly did not apply with much
8 force, to events that preceded 2010.
9 As to that, I make two points: first of all, with
10 respect, I heartily endorse my Lady's comments made this
11 morning that one can draw inferences from events that
12 took place, as it were, at a future date and
13 retrospectively, particularly in a case such as this one
14 where there manifestly is, in the light of
15 Mr Justice Fraser's findings, a persistent course of
16 conduct on the part of the Post Office.
17 So I adopt my Lady's submissions and suggest that
18 the court can and should draw inferences from matters
19 that took place at various points in time, to form
20 a picture of there Post Office's conduct throughout the
21 entire (inaudible word) period.
22 That is the first point I make. The second, further
23 or alternatively perhaps, is that Mr Altman's
24 construction of the CCRC's reasoning is, with the
25 greatest of respect, inaccurate.
19
1 So picking it up at paragraph 112 of the CCRC's
2 statement of reasons, at page 47 of bundle A, tab 1 --
3 I will not read the whole paragraph out, but you see:
4 "The CCRC considers it at least arguable that
5 a foundation of the Post Office's approach to criminal
6 prosecutions has now been materially undermined by the
7 High Court (Inaudible), in particular by the
8 following findings."
9 The relevant passages are then set out, including
10 that Legacy Horizon was not remotely robust.
11 So two points about that. First of all,
12 Legacy Horizon was the iteration of Horizon was in
13 operation, so far as my clients, (Inaudible) concerned;
14 secondly, it is apparent that CCRC was having regard not
15 simply to the events that took place in 2010 but to the
16 whole period.
17 That is the first point. Then secondly, if one
18 looks at paragraph 124 of the CCRC statement of reasons:
19 "In the CCRC's view the High Court findings
20 summarised at paragraph 112 above are no less important
21 to the consideration of whether there has been a second
22 ...(Reading to the words)... abuse, and when those
23 findings are considered in the round ..."
24 And I emphasise "in the round".
25 LORD JUSTICE HOLROYDE: Sorry, I have lost the paragraph.
20
1 MS BUSCH: Sorry, my Lord. It is 124. Page 51.
2 LORD JUSTICE HOLROYDE: Thank you.
3 MS BUSCH: So 124, the CCRC, if we go back to paragraph 112:
4 "The High Court findings summarised at paragraph 112
5 are no less important to a consideration of whether
6 there had been a second category abuse of process [and
7 I emphasise], when those findings are considered in the
8 round, the CCRC considers that there is a cogent
9 argument that, in the words of Lord Steyn in Latif, it
10 was 'an affront to the public conscience ...(Reading to
11 the words)... to bring criminal proceedings in any case
12 where the reliability of ...(Reading to the words)... is
13 central to the prosecution case when viewed in the
14 evidential context against the Post Office applicant
15 in question."
16 So my Lord, self-evidently Mr Justice Fraser's
17 judgments are extremely long, extremely detailed and it
18 is not possible for the CCRC or indeed counsel in these
19 proceedings to set out each and every finding of the
20 judge. Hence the fact that the parties were agreed in
21 the final agreed statement of facts that the judgments
22 should be read and taken into consideration in
23 their entirety. And that plainly was the view that the
24 CCRC also took.
25 And then just for the sake of completeness, again,
21
1 paragraph 126, the CCRC considers that the common issues
2 and Horizon issues judgments, read as a whole, raise
3 significant doubts about whether POL can be said to have
4 approached the prosecution of SPMs with ...(Reading to
5 the words)... and discussions on the CCRC considered to
6 include ...(Reading to the words)..."
7 Now, again, the first item to note as far as that is
8 concerned, as I say, is in the entirety of the judge
9 judgments, taking into consideration a fortiori the
10 entirety of the period from 1999/2000 up to 2013 or so.
11 That is the first point. The second point is that
12 the CCRC, as I think we are all familiar with, took the
13 view that the same factual findings formed the basis
14 both of the category 1 abuse and, at least potentially,
15 the category 2 abuse.
16 So as to that, they are not, in my submission,
17 making the error that is adverted to in some of the
18 judgments, of eliding category 1 abuse and category 2
19 abuse. What the CCRC is at least implicitly saying, and
20 I endorse it, is that the facts that lend themselves to
21 the category 1 abuse argument, in the circumstances of
22 this case, also lend themselves to a category 2
23 abuse argument.
24 And the reason for that, in my submission, goes back
25 to the submissions I made at the outset, which is that
22
1 whereas category 1 abuse pertains to the relationship
2 first and foremost between prosecution and defence,
3 category 2 abuse implicates the court.
4 And the critical consideration in this case,
5 plainly, in my submission, is that over the 15-year
6 period, or 13-year period, the Post Office routinely
7 misled the criminal courts.
8 There was a suggestion deriving from my Lords' and
9 my Lady's judgment reasons, I should say perhaps,
10 following on from the hearing in November that knowledge
11 at least arguably is an additional criterion, and I will
12 come on to that in a minute. I say the CCRC is correct
13 because it is simply the facts that establish category 1
14 abuse is sufficient for category 2. But, as I say,
15 I want to deal with the issue of knowledge.
16 Before I leave the statement of reasons, going on
17 over the page to the paragraph from which my learned
18 friend said this, paragraph 1 of (Inaudible).
19 "Furthermore, and whilst acknowledging again the
20 findings of bad faith, it was a prerequisite so far as
21 the second category of abuse of process, the CCRC notes
22 with concern the following findings of the High Court
23 judgments ... Post Office deliberately chose not to
24 disclose all of details of defects in Horizon because
25 they might have an impact on ongoing legal proceedings."
23
1 That is obviously (Inaudible) issue notes, and then
2 there is the (Inaudible) issue that is mentioned in
3 subparagraph 2.
4 So as to this, I say first, to repeat myself, one
5 can draw inferences from what happened in 2010, looking
6 back over the course of conduct. Secondly, if anything,
7 paragraph 127 was concerned -- obviously incredibly
8 serious -- if anything it is effectively (Inaudible),
9 plainly the CCRC thought there was enough in the matters
10 that they have listed in paragraph 112 to generate
11 a category 2 abuse case, and then it goes from bad to
12 worse because, if that was not bad enough, then we have
13 the legacy of the issue notes to compound the matter.
14 So those are my submissions on the CCRC's statement
15 on reasons. Then turning back (Inaudible), my learned
16 friend appeared -- I should say again, I should say
17 I adopt my learned friend's submissions in response, I
18 am particularly grateful to both him and Mr Moloney and
19 Ms Raghallaigh, those two in particular we have
20 obviously been communicating with. In particular
21 I adopt the submissions of Mr Moloney concerning
22 Fujitsu. I just want to touch on what was known or
23 ought to have been known.
24 Again, Mr Altman appeared to be suggesting that
25 Fujitsu may have known about the existence of the bugs,
24
1 errors and defects, which self-evidently they did, but
2 they kept that knowledge to themselves and did not share
3 it with the Post Office. I just make a couple of
4 preliminary points so far as that is concerned.
5 First, in my submission, when one reads
6 Mr Justice Fraser's judgments, at the very least, at the
7 very least, the Post Office was put on notice of the
8 possibility that there was a problem with the Horizon
9 system. In my submission that is sufficient, given the
10 context, given that what is in issue is criminal
11 prosecutions, guilty beyond a reasonable doubt, the fact
12 they were put on notice about that possibility casts
13 a duty upon them to bottom that issue out and establish
14 that there wasn't.
15 Then the second point I would make, as a
16 preliminary, is that it is important to bear in mind
17 that Fujitsu had very much a vested interest in problems
18 with Horizon not coming to light, for obvious reasons.
19 I don't actually know the sums involved but I am sure
20 they are extremely considerable. We know the
21 Post Office is itself viewed at Fujitsu as a (Inaudible)
22 rising as a cash cow. So the significance of that, in
23 my submission, is that given that the Post Office were
24 on notice, they had some reason to treat Fujitsu's
25 advice with a degree of caution.
25
1 The third point I make, which is one that Mr Moloney
2 has made, that if for no other reason, regardless of
3 Fujitsu, if for no other reason the Post Office were at
4 least put on notice, it is because sub-postmasters were
5 routinely telling them that there were problems with the
6 Horizon system.
7 In my submission it defies credibility that the
8 Post Office simply ignored what their trusted employees
9 were routinely telling them and adopted a blind stance
10 that Horizon is robust. I would just say -- I will come
11 to the paragraphs in the Horizon judgment that the
12 Post Office knew perfectly well what was going on -- but
13 in my submission there had been an issue about what the
14 Post Office did know or didn't know, but it does not
15 avail the Post Office if they wilfully blinded
16 themselves to the knowledge which they ought to have
17 had.
18 I am coming back (Inaudible) myself with the as it
19 happens remark in my note, because it says this is what
20 I am trying to get at, that the starting point is that
21 it doesn't help if the Post Office was blinding
22 themselves and then saying "We didn't know". The second
23 thing, as I say, is the fact that there is evidence that
24 they did know, and that is what I am coming to now.
25 So my Lord, I will be referring to a number of
26 1 paragraphs on the Horizon judgment but I think, given
2 that we are all very familiar with them, we can take it
3 fairly quickly.
4 LORD JUSTICE HOLROYDE: Just for my note, Ms Busch, I think
5 we are about to embark on your point 4, are we?
6 MS BUSCH: I am actually at point 3. Point 3 is my main
7 point, and point 4 and 5 are very short.
8 LORD JUSTICE HOLROYDE: All right, I am sure we can move on
9 to 3 already but -- so you are now starting 3?
10 MS BUSCH: 1 was fact sensitive.
11 LORD JUSTICE HOLROYDE: Yes.
12 MS BUSCH: 2, the CCRC. 3, knowledge. Then as I say 4 and
13 5 will be very brief.
14 MR JUSTICE PICKEN: I think in my note you may have six
15 points, but it doesn't matter.
16 MS BUSCH: A few sub-points.
17 So the Horizon system judgment, bundle A, the first
18 paragraph I wish to go through is 234, page 481. This
19 is one of the internal Post Office documents,
20 Mr Justice Fraser says:
21 "Equally, however, the content of some of the
22 internal Post Office documents that were put to her
23 ...(Reading to the words)... one entry under issue
24 identified is as follows by the Post Office, failure to
25 be open and honest when issues arise, eg roll out of
27
1 Horizon, Horizon Online migration issues, issues
2 affecting the few branches not receiving (Inaudible)."
3 Mr Justice Fraser underlined "failing" and "honest"
4 when issues arise. Again, I make my inference points,
5 and that in my submission carries across the board, but
6 I would also emphasise by way of underlining, "eg roll
7 outs of Horizon", and in my submission that supports
8 Mr Moloney's point that problems that occur (Inaudible)
9 Horizon during the trial period persisted into the roll
10 out and Mr Moloney cited another paragraph from the
11 judgment in his speaking note which indicates that
12 Mr Justice Fraser observed that the difficulties that
13 sub-postmasters were having in the early days,
14 2000/2001, were remarkably similar to those that
15 occurred during the trialing process.
16 But so far as 234 is concerned, the Post Office
17 itself, itself, were saying that there was a failure to
18 be open and honest with issues, otherwise known as
19 problems, issues that arose in the roll out of Horizon.
20 So with respect to my learned friend Mr Altman, it is
21 not their own statement to suggest that they didn't know
22 anything about this and they were attempting to be
23 transparent.
24 Then there is a second reference, which is
25 paragraph 367 of Horizon issues, page 515.
28
1 MR JUSTICE PICKEN: Can I just ask, is that a reference to
2 Legacy -- sorry, to Horizon including the original
3 Horizon, as opposed to Horizon Online? Or do you just
4 not know?
5 MS BUSCH: Well, my Lord, yes, I think with respect we can
6 because otherwise she wouldn't have distinguished
7 between Horizon and Ping X, which is on Horizon Online.
8 MR JUSTICE PICKEN: In fact the answer to my question is
9 235, and I see. There are two periods she was asking
10 about, the introduction of Legacy Horizon, the national
11 roll out and then -- so in fact that is the answer.
12 MS BUSCH: Yes, sorry, my Lord.
13 MR JUSTICE PICKEN: Thank you -- I raised the issue and you
14 answered it.
15 MS BUSCH: My Lord, I wanted to actually double check -- not
16 being very technologically minded -- that roll out meant
17 what I thought it did, in fact I will not read reference
18 but (Inaudible) Mr Fraser does say simply that roll out
19 was (Inaudible).
20 MR JUSTICE PICKEN: (Inaudible).
21 MS BUSCH: So paragraph 367 at 515, this is Mr Godeseth's
22 evidence and (Inaudible) you will recall that
23 Mr Justice Fraser found him extremely helpful as
24 a witness.
25 367, when it was put to Mr Godeseth that this showed
29
1 (Inaudible) that on not all occasions were SPMs advised
2 of impacts on their branch accounts of particular
3 problems, he said that was a fair inference:
4 "An inference is a common sense conclusion and
5 I agree with Mr Godeseth that it is indeed fair to draw
6 that inference. He did however then add, 'I think
7 I would say that the Post Office were well aware of this
8 and I would argue that it was a Post Office decision
9 whether or not to tell a sub-postmaster.'"
10 Then I don't want to read the whole paragraph out
11 but towards the bottom, Mr Godeseth did also say, "In
12 the background to this there was a dialogue at the
13 Post Office", and he agreed, counsel put to him, that
14 the Post Office would have been aware of what was being
15 done by Fujitsu.
16 Then the next reference starts at paragraph 428 of
17 the judgment on page 534. These paragraphs will be very
18 familiar to the court, certainly (Inaudible) any detail,
19 but this is the material concerning the receipts and
20 payments mismatch bug and the issue notes document which
21 was cited at length in the judgment.
22 Then the paragraph I particularly want to draw
23 attention to is paragraph 429, first, and we have seen
24 this before, where Mr Justice Fraser says:
25 "I find this [ie issue notes] to be a most
30
1 disturbing document in the context of this group
2 litigation. It is a 2010 document and issues between
3 Post Office and many SPMs (Inaudible) Horizon had the
4 Legacy Horizon gone on for decades, 2000 to 2010, and
5 these continued under Horizon Online introduced in
6 2010."
7 So that in my respectful submission confirms the
8 point I made earlier, which is to say at the very least
9 the Post Office were put on notice by virtue of the fact
10 that they were being told that there were problems by
11 sub-postmasters.
12 Then at paragraph 430, we have the reference to
13 Mr Abdulla(?) of the Post Office attending the meeting,
14 the remark about there being cases ongoing, et cetera.
15 Then just to note 433, the two references, one to
16 ongoing legal cases, the second to a BBC documentary:
17 "... show there is a distinct sensitivity within
18 both the Post Office and Fujitsu about keeping this
19 information to themselves in order to avoid a loss of
20 confidence in Horizon and the integrity of its data. A
21 less complementary but accurate way of putting it would
22 be to name the Post Office as continuing to assert the
23 integrity of Horizon and avoid publicly acknowledging
24 the presence of a software bug. The solution adopted
25 was to issuing of (Inaudible) corrections to the
31
1 relevant branches. There was no publicity given to the
2 SPMs at the time about the presence of this software bug
3 in Horizon."
4 My Lord if I may say so, the iniquity of this
5 approach as regards the SPMs is apparent. I am going to
6 come to this bit, (Inaudible) point 4, but it is
7 apparent if one reads through the schedule of
8 disclosable extracts, which is bundle C2, 772, and one
9 sees there the genuine distress and perplexity suffered
10 by sub-postmasters who are being accused with no
11 evidence -- being accused with no evidence -- of
12 stealing from the Post Office. The Post Office knows
13 perfectly well that there is a bug and they deliberately
14 choose to withhold that information. I would
15 respectfully, I would respectfully submit that the
16 Post Office's treatment of its contractors should be
17 taken into the mix when my Lords and my Lady are
18 considering grounds 2 abuse. I don't make a submission
19 about the weight that should be put on it but I say it
20 is a further consideration that should be taken into
21 account.
22 Then Mr Justice Fraser picks up on that point, and
23 again (Inaudible) at a late stage acknowledge at
24 paragraph 435 of the judgment, he says:
25 "Indeed the approach of the Post Office that to the
32
1 notification of the existence of the bugs ...(Reading to
2 the words)... describes the methods by which the
3 Post Office communicate with SPMs (Inaudible)."
4 Then in the course of that he himself asked counsel
5 for both parties (Inaudible) Callendar Square bugs:
6 "Could the parties please indicate by means of
7 an agreed fact that only (Inaudible) possible; if not
8 each parties' contended for answer, and then answers to
9 the following two questions: first, the date when the
10 existence of each of these was communicated by the Post
11 Office to SPMs; and secondly, (Inaudible) reference that
12 the contemporaneous document email or communicated to
13 the Post Office demonstrated in question 1."
14 Then we have a record of the answers which I don't
15 need to read out.
16 Then 442, over the page, we have:
17 "The Post Office approach to this, in my judgment is
18 highly ..."
19 This is the point:
20 "In my judgment the above passages are simply
21 extraordinary. Two of the documents above relating to
22 2010 some nine years; the peak is from 2004, 15 years
23 ago. Their contents support the claimant's case on
24 Horizon issues. ...(Reading to the words)... It was
25 not, as the Post Office puts it, unnecessary and
33
1 inappropriate to notify it SPMs of this."
2 This is the point at 425, (Inaudible):
3 "The same points all lead to the same conclusion in
4 my judgment, namely that the Post Office ought to have
5 notified at the very least those SPMs with branch
6 accounts that were impacted by the above. That at least
7 had occurred as a result of the software bug ...(Reading
8 to the words)... live issue at this time should not have
9 influenced the decision to notify the SPMs of the
10 software bug ..."
11 I don't believe I need to read the rest of the
12 paragraph.
13 So by definition, if the Post Office was in
14 a position to have notified the SPMs of the existence of
15 the bug, it follows that Mr Justice Fraser clearly took
16 the view that the Post Office was aware of it.
17 LORD JUSTICE HOLROYDE: In the passage you have just read,
18 Mr Justice Fraser qualified about 10 lines down to this
19 extent:
20 "The same points all lead to the same conclusion in
21 my judgment, namely that the Post Office ought to have
22 notified at the very least all those SPMs whose branch
23 accounts had been impacted by this bug. If this had
24 occurred, (Inaudible) it had occurred as a result of
25 the software bug."
34
1 Do you similarly qualify the point or do you say, in
2 effect, that if anybody has been prosecuted based on
3 Horizon, that there should have been disclosure of the
4 existence of bugs, plural, whether or not they had
5 specifically been found to affect the particular branch
6 in question?
7 MS BUSCH: My Lord, the first point that I would (Inaudible)
8 is the knowledge one. The Post Office, the position
9 (Inaudible).
10 LORD JUSTICE HOLROYDE: Yes.
11 MS BUSCH: Yes, my Lord, I would go so far. The Post Office
12 itself adopts a somewhat contradictory stance. On the
13 one hand they plainly were, my Lord, with due respect,
14 extremely secretive and far from transparent; and then
15 we have seen in some documentation later on, in the
16 period around about 2010 and subsequently, in which at
17 least some officers in the Post Office take the view
18 that transparency is a sound objective and obviously we
19 have not seen the public statements about the
20 Post Office being a trusted brand, et cetera, et cetera.
21 So if for no other reason, then that would be a good
22 reason to notify, but so far as the interests of justice
23 are concerned, and this point hasn't yet arisen in these
24 proceedings, but the point is raised in the Clarke
25 advice: these are postmasters who have been convicted on
35
1 grounds which the Post Office itself now concedes are
2 a category 1 abuse and were never told about the fact
3 that their convictions at the very least may have been
4 unsafe because of the unreliability of Horizon data.
5 My Lords and my Lady know very well that I am not
6 a criminal practitioner, and do not pretend to be, but
7 there are obvious implications on that, so far as
8 exercising rights of appeal are concerned or indeed
9 making applications to CCRC, which belatedly happened
10 but only in the light of the Horizon issues judgment.
11 So I do make that submission.
12 Again, when it comes to my fifth point, which, as
13 I say, will be very very brief, but so far as the
14 (Inaudible) in dealing with category 2 abuses is
15 concerned, it is very much an expression in that court
16 what to take into account and what not to take into
17 account, but I say the court has a very broad discretion
18 to look at the conduct of Post Office as a whole and
19 that would include, in my submission, a point I made
20 just now about the conduct towards the SPMs, in
21 particular conduct not disclosing highly relevant
22 information even after the sub-postmasters had been
23 convicted.
24 Don't forget, one has to really object to the level
25 of humanity. My Lords and my Lady will know, and take
36
1 perhaps a traditional (Inaudible) the fact that,
2 generally speaking, sub-postmasters, quite often at
3 least, play an important role for their communities.
4 They are by definition trusted to deal with not
5 inconsiderable sums of money, but quite apart from the
6 very moving testimony we heard yesterday about the
7 impact on health, marriages, finances that Mr Moloney
8 also mentioned, there is the personal reputation of
9 these people at stake. That is really a telling
10 consideration in my submission.
11 So all these years that the SPMs had to go knowing
12 perfectly well they had done absolutely nothing wrong
13 but not being told what the source of the problem
14 actually was, this was conduct that was absolutely
15 inimical to the interests of justice and, with respect,
16 utterly reprehensible in my submission.
17 MR JUSTICE PICKEN: Just picking up -- the paragraph goes on
18 to say, I think by reference to the evidence given in
19 relation to Callendar Square, which is referred to at
20 437 but it is picked up again at 442, about halfway down
21 there is a sentence in the middle of the line:
22 "Further, the Post Office's explanation in its
23 submissions that SPMs had their accounts corrected in
24 the ordinary course is not a suitable phrase unless by
25 ordinary course one means keeping the cause or the
37
1 reason for the correction secret and therefore hidden
2 from the other party in the accounting transaction,
3 namely the SPM."
4 So what appears to be being said there is -- I think
5 it is the Callendar Square bug -- is that even for those
6 affected, they weren't told specifically, they were told
7 just in a sort of ordinary type way, it was not spelt
8 out, and I assume you place reliance on that as well?
9 MS BUSCH: I do, my Lord. Again, that is very helpful.
10 MR JUSTICE PICKEN: Yes.
11 MS BUSCH: So those are the only submissions that I want to
12 make with respect to the Horizon issues.
13 As I say, my learned friend Mr Altman appears to
14 suggest that we, the appellants, should be able to give
15 a year by year or month by month account of what the
16 Post Office knew or didn't know, and Mr Moloney makes
17 the entirely sound point that the person best placed to
18 do that is of course Post Office, given that they are in
19 possession of that information and they haven't done so.
20 I submit that there is quite far and away sufficient
21 in both judgment number 6 and number 3 to indicate that
22 the Post Office did know and, as I say, at the very
23 least but were put on notice but it is plain, I submit,
24 that they knew throughout the period, but for the
25 avoidance of any doubt I refer back again to
38
1 paragraph 234, they need open and honest as far as roll
2 out of Horizon (Inaudible) Legacy Horizon.
3 One more point if I may. Again, an issue arose
4 yesterday about constructive (Inaudible) on the part of
5 the Post Office and so on and Mr Altman referred to this
6 being a criminal case. I have no desire whatsoever to
7 get into a discussion of civil law concepts such as
8 constructive (Inaudible). In my submission it is not
9 necessary to do so. We all have agreed to treat
10 ourselves as effectively bound, so far as the factual
11 matrix is concerned, bound by the findings of
12 Mr Justice Fraser who found as facts that the
13 Post Office (Inaudible) and in my submission you don't
14 need to (Inaudible).
15 This is really a point I was going to make when
16 (Inaudible) but I may as well make it now. In my
17 submission the category 2 abuse issue is not a criminal
18 law issue as such, it is a constitutional law issue.
19 That is why I am here arguing the case. Were it
20 a criminal law issue, I would have thought twice before
21 taking this case on. It is purely a constitutional law
22 issue about the relationship between this issue and the
23 executive and therefore, so far as that is concerned --
24 of course the context is public criminal --
25 MR JUSTICE PICKEN: Why the executive?
39
1 MS BUSCH: Sorry?
2 MR JUSTICE PICKEN: Who is the executive?
3 MS BUSCH: Well, the Post Office so far as it is an
4 emanation of the state.
5 A couple of very very brief points -- I am nearly
6 finished. The schedule disclosable extracts. I invite
7 you, my Lords and my Lady, to read the whole document to
8 get the very strong flavour of the attitude of the
9 Post Office prosecutors on the one hand and the stress
10 of the sub-postmasters on the other.
11 I am just going to take you to a couple of
12 references. C2, the first reference is page 745. It is
13 item number (Inaudible), it is the second last, item
14 number 310078816, attendance note dated 12 July, a case
15 log 800 (Inaudible), no (Inaudible) about attending,
16 page 14:
17 "We don't have a defence case statement which makes
18 some things (Inaudible). However it appears that she is
19 using solicitors who have jumped on the Horizon
20 bandwagon."
21 Page 2 of 4:
22 "However it is absolutely vital that we win.
23 A failure could bring the whole of the Royal Mail system
24 down. Counsel's concern is the jury will still believe
25 in conspiracies and there don't need to be many people
40
1 believing in conspiracies and there don't need to be
2 many people on the jury who do believe in conspiracies
3 for us to have a problem."
4 MR JUSTICE PICKEN: Is 038 Mrs Misra?
5 MS BUSCH: Yes, it is.
6 LORD JUSTICE HOLROYDE: No, she is 028. 038 Ms Shaheen I
7 think. Anyway, one of the appellants.
8 MS BUSCH: Again, this echoes the point Mr Moloney made
9 yesterday in response to Mr Altman that the Post Office
10 persistently treated concerns raised by sub-postmasters
11 as complaints rather than evidence, when there was
12 clearly something wrong with Horizon, "jump on the
13 Horizon bandwagon", and even more telling, "absolutely
14 vital we win, could bring down the whole of the Royal
15 Mail system."
16 That, in my submission -- there are numerous
17 references of civil (Inaudible) which indicates the
18 attitude the Post Office took to the prosecution of SPMs
19 that, above all else, Horizon had to be protected.
20 Then the second couple of references in the same
21 bundle are at, first of all, 1086, an email from Ms King
22 at Post Office dated 7 January 2009 to a David Grey(?)
23 and others, subject "Security incident. Fetch. This
24 document in the central archives store."
25 "This seems to be something which we don't need to
41
1 worry about directly in (Inaudible)."
2 So I assume here this is a reference to
3 a (Inaudible).
4 LORD JUSTICE HOLROYDE: You are dropping your voice,
5 Ms Busch.
6 MS BUSCH: Sorry, my Lord.
7 MR JUSTICE PICKEN: It is described as a virus incident in
8 the third paragraph.
9 MS BUSCH: "There does appear to be an issue with the time
10 it took for the discovery of the problem (Inaudible)
11 being deployed and the security becoming aware
12 ...(Reading to the words)... adjusted to virus incident
13 is a bit more worrying from my perspective. Fujitsu
14 currently employs a TA anti-virus helpdesk PCs ..."
15 And then more details about the virus incident.
16 The crucial point is adjusting witness statements,
17 in order to reflect the mitigation of -- adjusting
18 witness statements in how they deal, or don't deal
19 perhaps, with the problems which are alluded to.
20 So, again, no aptitude to disclose the fact that the
21 problems were multiple and ongoing in witness statements
22 to the court, plainly not if the existence, the
23 prospects of Royal Mail were at stake.
24 Then, the next page, 1087, a response from a Dave
25 (Inaudible):
42
1 "David, this only affects cases where statements had
2 already been given ...(Reading to the words)...
3 According to PS, these accounts were reissued to say
4 that there are no reasons to think any system
5 malfunction had affected the evidence to which they
6 relate."
7 So we have the Post Office issuing witness
8 statements that not only don't reflect the truth, the
9 whole truth and nothing but the truth, but actually
10 obscure it. It is not true that there are no
11 (Inaudible) issues in the system.
12 I ask my Lords to take that into account in the
13 general mix relating to the Post Office's attitude.
14 Again, this is plainly absolutely critical to the
15 category 2 case, as I have emphasised, as at the heart
16 of category 2, it is misleading not only the claimants
17 but also the courts.
18 LORD JUSTICE HOLROYDE: Ms Busch, we perhaps need to be
19 a little cautious about this particular point, because
20 where hearsay evidence is being admitted from
21 a computer, my recollection without having the statutory
22 wording in front of me, is that the statutory provision
23 does contemplate evidence to the effect that, if there
24 was any malfunction, it wasn't one which affected the
25 relevant subject matter.
43
1 As best I can interpret these two documents, it
2 looks as if it may be the case that the original
3 statement said there was no problem, full stop. It is
4 then discovered that there had been a delay in
5 rectifying something, so that the original statement was
6 inaccurate in its (Inaudible) and the next statements,
7 that seem on the face of it to have been in terms of the
8 relevant statutory provisions, he doesn't take away your
9 core point that there was something which was
10 misrepresented, however that came about in the initial
11 statement, and there doesn't seem to be any hint that
12 anyone was ever told that there had been that
13 (Inaudible) intention.
14 One has to perhaps be a little cautious in viewing
15 this as evidence of some very sinister plotting going
16 on.
17 MS BUSCH: I see that.
18 MR JUSTICE PICKEN: I think if you look at the top of next
19 page, under the heading "Impact", what my Lord explains
20 probably can support.
21 MS BUSCH: My Lord, yes, I accept that, but I do revert back
22 to the reference I first took you to, back at page 745
23 of the bundle, concerning the testing(?) of Royal Mail.
24 That statement is part of the piece and plainly on all
25 of the evidence we have traversed during the course of
44
1 this hearing, particularly the evidence before
2 Mr Justice Fraser, in my submission, in my respectful
3 submission, it is clearly (Inaudible) that the
4 Post Office not only don't disclose the true situation
5 to the criminal courts in the prosecution of SPMs' whose
6 convictions were secured on the back of unreliable
7 Horizon data, but they actively misled the courts,
8 knowing as they did or at the very least being put on
9 notice of the abuse that existed with Horizon.
10 So in my respectful submission, this is the last of
11 my final points, in my submission that is more than
12 enough, contrary to what my learned friend says.
13 Just before I sit down, which I will do in a moment,
14 my learned friend appears implicitly to suggest that
15 category 2 abuse is sort of higher than category 1.
16 I myself came to the impression in his submissions that
17 he continued for the purposes of category 2 to focus on
18 injustice to the accused and seems to be suggesting
19 there was something additional to that which had been
20 admitted for the category 1 purposes, but needed to be
21 drawn out in order to establish category 2, and that
22 would explain the rationale for his insistence that each
23 case should effectively be on its own facts.
24 In my submission, that is not right. It is clearly
25 not right. Category 2, I have said on numerous
45
1 occasions now, is (Inaudible) the relationship between
2 the courts and in this case the Post Office. So you
3 don't have to find anything additional to category 1.
4 What the court has to look at are what are the
5 implications of category 1 issues for the court
6 (Inaudible) in the context of the prosecution --
7 MR JUSTICE PICKEN: It is the degradation of the criminal
8 justice system.
9 MS BUSCH: It is, my Lord.
10 LORD JUSTICE HOLROYDE: Really your point, taking the rather
11 striking example from one of the older cases, is that if
12 somebody is kidnapped in order to bring him before the
13 courts, the same conduct which makes it unfair to him as
14 an individual is perfectly well capable of constituting
15 an abuse of the process of the court on the second
16 ground, the kidnap plus something extra.
17 MS BUSCH: Indeed, my Lord. As my Lord knows, there are
18 various (Inaudible) ways of formulating category 2 but
19 I place particular emphasis on, effectively, the
20 integrity of the justice system on the one hand and,
21 secondly, ensuring that public faith in the integrity of
22 the justice system is maintained.
23 My learned friend appears to suggest that, even if
24 the Post Office had been guilty of gross negligence in
25 prosecuting sub-postmasters, that would not be
46
1 sufficient for category 2. In my submission that is
2 plainly (Inaudible). If one is focusing on public faith
3 in the judicial system, one could not (Inaudible) have
4 a situation in which one could say, well, the
5 Post Office acted negligently and some 40-odd, for the
6 purposes of CCRC, 900 in total, sub-postmasters were
7 prosecuted as a result, but the court is not going to
8 comment.
9 By way of my absolute last remark, I would revert
10 again to where I began which was with Bennett, the
11 judgment at paragraph B, page 98, bundle B.
12 I would find it essential to the rule of law that
13 the courts should not have to make available its
14 processes and thereby endorse what ...(Reading to the
15 words)... however humble you rank.
16 It is not a punishing (Inaudible) but a question of
17 the background, my Lord, the integrity of the justice
18 system and ensuring the public faith in it is
19 maintained. The court is kind enough to make its
20 processes available and if the conduct we have been
21 considering is not unworthy conduct on the part of the
22 Post Office, it is very hard with respect to know what
23 is.
24 So my Lord, those are my submissions in response to
25 Mr Altman.
47
1 LORD JUSTICE HOLROYDE: Yes. Thank you very much indeed,
2 Ms Busch.
3 I think we have Mr Smith on behalf of Mr Pareck.
4 Submissions by MR SMITH
5 MR SMITH: My Lords and my Lady, I have only a few
6 submissions to add to my learned friend's.
7 When looking at the seriousness of the conduct of
8 the respondents in these matters, almost by way of
9 preamble, the court is entitled to give greater scrutiny
10 to this respondent because it was acting as private
11 prosecutor. There is support for that in the case of
12 R (on the application of A), and that is particularly
13 important because it deals with the internal tension
14 that will always be the case when a single entity is
15 victim, investigator and prosecutor.
16 In my submission there are two reasons why the
17 failures of this prosecutor, both failures to
18 investigate and failures to disclose, are
19 particularly serious:
20 Firstly the matters which were not investigated
21 and/or were not disclosed were wholly within the
22 knowledge and control of the respondent. The court will
23 recall that the respondent has a specific contractual
24 right with Fujitsu to request the material related to
25 the (Inaudible) prosecution. This is not what could be
48
1 otherwise considered, in my submission, information held
2 by a genuine third party. It was held by
3 a subcontractor of the respondent.
4 Secondly, in any trial the respondent in effect had
5 the benefit of an evidential presumption that Horizon
6 was robust. And therefore the appellants were
7 particularly reliant on the respondent to conduct itself
8 properly and thoroughly when it came to investigating
9 and disclosing matters which undermined that
10 presumption. I submit that those are both points
11 relevant in assessing the seriousness of the conduct of
12 the respondent and therefore whether or not limb 2
13 is engaged.
14 I apologise if this reference has already been
15 given, my Lords and my Lady, but the whole separate
16 question of what the Post Office knew, there was the
17 finding of Mr Justice Fraser at paragraph 1115 of the
18 common issues judgment, bundle A, page 403.
19 MR JUSTICE PICKEN: I don't think it has been given.
20 MR SMITH: I am grateful, my Lord.
21 This is effectively a concluding paragraph in my
22 submission, that Horizon was introduced in 2000 and then
23 all the unexplained discrepancies and losses began being
24 reported by sub-postmasters, internal documents clearly
25 showed some personnel within the Post Office believed at
49
1 the time that at least some of these were caused by
2 Horizon.
3 And then there is a reference back to paragraph 542,
4 which I think the court has already been taken to, and
5 another reference to paragraph 41 as to (Inaudible) that
6 conclusion.
7 So when the court is asking the question "Who knew
8 what and when?", I do place reliance on that finding of
9 Mr Justice Fraser.
10 MR JUSTICE PICKEN: Specifically the finding which dates
11 back to 2000?
12 MR SMITH: Yes, my Lord.
13 Of course even if that were wrong (Inaudible) the
14 Post Office ought to know, given the number of queries
15 being raised.
16 My Lords and my Lady, those are the only generic
17 submissions I wish to make. I do have specific
18 submissions to make in due course.
19 LORD JUSTICE HOLROYDE: You referred to the case of A. Did
20 you want to take us to any specific passage in that?
21 MR SMITH: My Lords, yes, in bundle B, at page 500. Lord
22 Justice Gross at paragraph 37 at the bottom of the page:
23 "Because the private interests are ...(Reading to
24 the words)... the scrutiny of the private prosecutors
25 and public prosecutors."
50
1 Then at the very top of the page:
2 "Realistically there might be more in the question
3 of the initiation of the conduct of the private
4 prosecution."
5 LORD JUSTICE HOLROYDE: This was a prosecution by who?
6 MR SMITH: My Lord, this judgment is in fact in the context
7 of a wasted costs order made against a prosecutor.
8 LORD JUSTICE HOLROYDE: Yes. So one individual being
9 prosecuted at the suit of another.
10 MR SMITH: Yes.
11 MR JUSTICE PICKEN: I think the individual was in prison in
12 Dubai. It has quite a complicated back story, this one.
13 MR SMITH: Yes, my Lord.
14 LORD JUSTICE HOLROYDE: But you just rely as a general
15 proposition on the inherent tension when a single entity
16 is complainant, investigator and prosecutor?
17 MR SMITH: Yes.
18 LORD JUSTICE HOLROYDE: Thank you very much indeed.
19 Good, well, I think that then concludes the
20 submissions from all concerned on general issues.
21 I hope we have not missed anybody's submissions.
22 I don't believe we have.
23 I think we now move on to the submissions relating
24 to individual appeals.
25 Ms O'Reilly, I think that is over to you.
51
1 Thank you.
2 Submissions by MS O'REILLY
3 MS O'REILLY: My Lord, yes.
4 We sent to the court this morning two documents.
5 The first was a speaking note dealing with these
6 grounds, and the second was a case-specific document
7 relating to the appellant Julian Wilson. I hope the
8 court has received those. We handed up hard copies.
9 LORD JUSTICE HOLROYDE: We did. Thank you.
10 Now, I am afraid your voice is quite faint as well.
11 So like Ms Busch, you are going to have to shout more
12 than you normally do.
13 MS O'REILLY: I will do my best. Thank you.
14 My Lord, in relation to fact-specific submissions,
15 for the Hudgell appellants, if I can refer to them in
16 that way, on grounds 1 and 2, we wish to deal with two
17 topics. The first is the ground 2 concessions
18 themselves, and the facts on which they are based. And
19 the second topic we wish to deal with is the features of
20 the ground 1 concessions themselves, which we submit
21 make out ground 2, I can deal with the first topic
22 fairly shortly. I am under the heading "Ground 2, the
23 concessions" in the speaking note.
24 LORD JUSTICE HOLROYDE: Yes.
25 MS O'REILLY: As the court is aware, the respondent has
52
1 conceded that in four of the cases before the court, all
2 of which involved guilty pleas, those cases amount to
3 a limb 2 abuse of process. And those four cases are
4 those of Josephine Hamilton, Allison Henderson,
5 Alison Hall and Hughie Thomas.
6 I am not going to take the court to their portions
7 of the respondent's notice, but the references are there
8 for future reference and I will come to this in due
9 course. But we are going to invite the court to read
10 the respondent's notices in full and closely when
11 considering its judgment, because we submit that there
12 is a sufficient evidential foundation within the
13 respondent's notices to secure the limb 2 finding.
14 In those particular four cases, the limb 2 abuse of
15 process has been conceded because it is accepted by the
16 Post Office that improper pressure was applied to those
17 appellants to accept guilty pleas on the basis that they
18 made no criticism of Horizon. And in each of these four
19 cases there is essentially correspondence in various
20 forms which records the respondent imposing
21 those conditions.
22 In the case of Ms Hamilton, the Post Office makes
23 a further specific concession that she had been
24 essentially threatened with a theft count in the event
25 that she did not repay the supposed shortfall. And so
53
1 there was in that sense, so the Post Office concedes,
2 some direct evidence of the prosecution process
3 certainly being seen to be used as a means of
4 enforcing repayment.
5 That, we submit, has relevance for some of the
6 limb 1 concessions, which I will come on to.
7 Our submission is that the limb 2 concessions,
8 couched as they are, when set against the facts of the
9 remaining cases, are based on what we would respectfully
10 submit is a restrictive interpretation of
11 limb 2 principles.
12 And we would say that these four concessions and the
13 way that they are couched are simply, on one view,
14 an extreme or more obvious form of limb 2 abuse.
15 We would submit that there is or should be,
16 certainly in these cases, no difference in terms of
17 limb 2 abuse between conduct which is expressly
18 evidenced or visible, such as it is when there is
19 a conditional plea arrangement, and conduct which may
20 not be expressly evident, when it is clear that the same
21 forces are at work.
22 So whilst the concessions that the respondent makes
23 in relation to the four ground 2 cases are undoubtedly
24 correct, we would submit that when the court looks at
25 the specifics of the respondent's notices in relation to
54
1 all of the Hudgell appellants, and the foundation for
2 the limb one concessions, that there is a clear basis
3 for a limb 2 finding, without more.
4 So having made those observations in relation to the
5 facts of ground 2, what we would like to do is firstly
6 to deal with some of the personal features of the
7 Hudgell appellants and then come on to some case
8 specific examples which we can see from the respondent's
9 notices.
10 If I may start, my Lords and my Lady, with some of
11 the Hudgell appellants, because a number of them had
12 a particularly longstanding history with the
13 Post Office, and that has, we submit, some relevance in
14 the final analysis of limb 2.
15 Two of the Hudgell appellants had worked for the
16 Post Office since the 1970s and one since the 1960s.
17 David Yates, for example, started his Post Office career
18 as a counter clerk in 1979 and he became sub-postmaster
19 in 1993.
20 Mohammed Rasul became a postman in 1979 and
21 a sub-postmaster in 1997.
22 Hughie Thomas worked as a postman between 1965 and
23 1992 and he became a sub-postmaster in 1994, which is
24 the same year that David Hedges also became
25 a sub-postmaster.
55
1 Wendy Buffrey had been a sub-postmaster since 1999.
2 And Barry Capon had been a branch manager since 1996.
3 Lisa Brennan became a counter clerk when she was 16
4 years old, and that was her first job.
5 And for Nicholas Clark, working for the Post Office
6 run by the family, albeit became short-lived by reason
7 of these proceedings. His mother had been
8 a sub-postmistress of the Post Office where he became
9 a sub-postmaster in 2006.
10 Whilst those appellants of course are no more
11 relevant than the others, that these appellants were not
12 believed or taken seriously or, to put it bluntly, ever
13 given the benefit of the doubt, we submit is relevant to
14 the court's task in assessing the institutional response
15 of the respondent against the limb 2 standard.
16 The following appellants went to prison:
17 Hughie Thomas, Jacqueline McDonald, Khayyam Ishaq,
18 David Owen, Tahir Mahmood, David Yates and
19 Hajinder Butoy.
20 The longest sentence of imprisonment was three years
21 and three months. The following appellants filed for
22 bankruptcy following conviction:
23 Hughie Thomas, Gail Ward, Jacqueline McDonald and
24 Lisa Brennan.
25 I have said in the speaking note that at least two
56
1 of our appellants had been unable to find or retain work
2 since their release from prison or conviction due to the
3 impact of their convictions. In fact it is three.
4 Those are:
5 Tahir Mahmood, Hajinder Butoy and Della Robinson.
6 And in the case of Della Robinson, due to the financial
7 difficulties consequent upon her conviction, her house
8 was repossessed.
9 MRS JUSTICE FARBEY: Can you repeat those names, please?
10 MS O'REILLY: Yes, I am so sorry.
11 So the three appellants who were unable to find or
12 retain work were:
13 Tahir Mahmood, Hajinder Butoy and Della Robinson.
14 And in the case of Della Robinson, her house was also
15 repossessed due to financial difficulties following
16 her conviction.
17 In the 29 of the 30 Hudgell cases for which there is
18 either a limb 1 or a limb 1 and a limb 2 concession --
19 and I say 29 because the case of Wendy Cousins will be
20 dealt with discretely -- the respondent's notices
21 include a specific concession that there was a failure
22 to investigate the true cause of the shortfall and,
23 where relevant, the issues with Horizon that had been
24 raised at various stages.
25 We submit that the investigative failure is of
57
1 special importance in the final analysis of limb 2.
2 Horizon reliability was raised in interview or in
3 a defence statement, or sometimes in some other way, in
4 18 of the cases. And with the court's permission
5 I would like to read out those 18 names because of
6 course I am not going to be dealing with the full facts
7 of the 29 cases but it is important in my submission for
8 those appellants to be named. And they were:
9 Damien Owen, Jacqueline McDonald, Khayyam Ishaq,
10 David Hedges, Mohammed Rasul, Gail Ward, Julian Wilson,
11 Hughie Thomas, Josephine Hamilton, Allison Henderson,
12 Alison Hall, Della Robinson, Lynette Hutchings, Barry
13 Capon, Pauline Thompson, Margery Williams,
14 Gillian Howard and Hajinder Butoy.
15 And many of the accounts given in interview in
16 relation to Horizon, and sometimes in defence
17 statements, were detailed.
18 Sometimes they were forensic. One appellant kept
19 a list of the shortfalls he had observed. That was
20 Barry Capon. And there was also a reference in the
21 respondent's notice, my Lords and my Lady, to
22 Della Robinson having kept a list of discrepancies that
23 she observed.
24 LORD JUSTICE HOLROYDE: At some future stage, Ms O'Reilly,
25 would you be kind enough to give us a note with those
58
1 18 names.
2 MS O'REILLY: Yes, in respect of Della Robinson I can give
3 the court that now. That is page A 1206. I think it is
4 paragraph 2. But that is her portion of the
5 respondent's notice. I will revert to the court as to
6 the reference for Barry Capon but it may be that I can
7 come to it later.
8 And it is of some significance in the context of
9 these appellants that a number of them in their
10 interview did not just say, "I experienced a shortfall
11 last week". Many of these cases involved accounts of
12 shortfalls going back several years. And I will come to
13 some particular examples in due course.
14 A number of the appellants didn't expressly raise
15 Horizon in interview because it was their position that
16 they simply had no idea what was going wrong. Those
17 appellants included David Yates, Ian Warren,
18 Tahir Mahmood, David Blakey, Lisa Brennan,
19 Wendy Buffrey, Siobhan Sayer, Nicholas Clark,
20 Timothy Burgess and William Graham.
21 And their position was that they simply couldn't
22 understand how the shortfalls had occurred. In some
23 cases they simply assumed it was their fault.
24 And it is, of course, consistent, in our submission,
25 with an appellant having had faith in the Post Office
59
1 and, by extension, in Horizon, that they simply would
2 have no idea how the shortfalls were coming about, and
3 may not move to raise Horizon and may blame
4 themselves instead.
5 In only six of the cases was ARQ data obtained. And
6 it is unclear in some of the cases whether it was
7 analysed, served or disclosed. Those cases are listed
8 in the speaking note, my Lords and my Lady, with the
9 references. But in short they are the cases of Hall,
10 Buffrey, Capon, Thomson, Rasul.
11 And in the case of Siobhan Sayer some data was
12 disclosed and there was then another batch of data that
13 was obtained but appears not to have been analysed.
14 In the case of Lynette Hutchings, ARQ data was
15 requested but we simply don't know if it was obtained.
16 Phone calls to the helpline are often a feature of
17 the cases. And where they were, they are set out in the
18 respondent's notices. Some examples are, Josephine
19 Hamilton made 26 calls to the Horizon help desk and
20 numerous calls to the national business support centre,
21 including some calls which reported losses.
22 A series of dip-samples from January 2010
23 to March 2011 showed that Lynette Hutchings had made
24 four calls to the Horizon help desk. We have provided
25 the reference there to her part of the
60
1 respondent's notice.
2 And there is a particularly stark example of phone
3 calls, which I will come to in due course, and that is
4 the case of Gillian Howard.
5 Confiscation and in some instances compensation
6 orders were made in six of these cases. And I am
7 working from a schedule that was prepared by the
8 respondent which sets out the details of each person's
9 conviction and sentence. Those cases were Alison Hall,
10 Julian Wilson, Jacqueline McDonald, Wendy Buffrey,
11 Siobhan Sayer and Hajinder Butoy.
12 I should add, we also believe Hughie Thomas paid
13 a confiscation order, albeit I have been unable to find
14 it in the papers, but he recalls paying approximately
15 £9,000.
16 On Monday, we, in our second speaking note, took the
17 court to a handful of examples, some from the individual
18 cases, others not, which pointed to what we say is the
19 institutional failing at work. We are not going to take
20 the court this morning through the full facts of every
21 one of the 30 cases. We simply invite the court to read
22 the respondent's notices in full and to read them
23 closely. But I would like to take the court to some
24 specific examples which we submit show the limb 1 abuse
25 in action and in a way which we say shows that the
61
1 standard of limb 2 is met because of the features of
2 institutional approach that are visible.
3 It is important in this context to bear in mind that
4 amongst the Hudgell appellants we have people who sit
5 throughout the chronology. We have people at the
6 beginning, in the middle and at the end, and we try to
7 point to some examples of each.
8 The first case we bring to the court's attention is
9 that of Julian Wilson, who pleaded guilty in 2009 to
10 offences committed allegedly in 2007 and 2008. Can
11 I take the court, please, to bundle A, page 1194, which
12 is his portion of the respondent's notice. (Pause).
13 LORD JUSTICE HOLROYDE: Mr Wilson sadly is deceased?
14 MS O'REILLY: He is, yes. His appeal is maintained by his
15 wife Karen, who I think is watching us this morning.
16 LORD JUSTICE HOLROYDE: Thank you.
17 MS O'REILLY: Now, the court can see -- and I am not going
18 to take the court through it in full, but having pleaded
19 guilty in 2009, Julian Wilson agreed a basis of plea
20 with the Post Office. The court can see, just by way of
21 a cursory glance at paragraph 2, that in his interview
22 he had raised problems with Horizon. He had been told
23 there was nothing wrong with the system. He had in fact
24 given a very detailed account in interview. And that is
25 clear from the ROTE(?) which we have in the
62
1 case-specific disclosure.
2 MR JUSTICE PICKEN: In fact he said in interview that he had
3 raised it with his manager.
4 MS O'REILLY: Yes, he had, that's correct, my Lord. He in
5 fact had received a letter from the federation, which
6 invited discussion of balancing issues, and he had
7 responded to the federation saying, yes, I am having
8 these difficulties.
9 So he gave a detailed account in interview, which
10 included raising a concern about remote access.
11 LORD JUSTICE HOLROYDE: Just so that everyone who is
12 listening is clear about what that means, do you want to
13 just put it in a nutshell.
14 MS O'REILLY: Yes. He had raised a query as to whether or
15 not the Horizon system in his branch could be accessed
16 by others. And in the context of this case, we now know
17 that that was possible by people in Fujitsu.
18 LORD JUSTICE HOLROYDE: Yes.
19 MS O'REILLY: So that is what he had said in interview. He
20 eventually pleaded guilty on a basis which was agreed
21 and written down and which we have provided to the court
22 this morning. And if the court can please turn that up,
23 and go to the back page, as it were, the first point at
24 the top of this page says:
25 "The losses occurred as a result of staff or
63
1 systemic errors. I do not believe any of the money was
2 stolen. I certainly did not steal the money, nor use it
3 for any other purpose. I have made no financial gain
4 directly from what has occurred."
5 Now, we put this basis of plea before the court
6 because we say it is significant, because on the one
7 hand in the ground 2 conceded cases the Post Office
8 refuses to countenance criticism of Horizon, and that is
9 the basis upon which in significant part those cases are
10 conceded. But in this case the Post Office has signed
11 a basis of plea which countenances as a possibility for
12 the shortfall systemic error, and has agreed a basis of
13 plea in which the sub-postmaster says he did not take
14 the money.
15 That is the context in which the failure to
16 investigate is conceded only as a limb 1 abuse. And
17 that is the context in which the failure to
18 investigate persisted.
19 We would draw to the court's attention that in this
20 case, and in others, a confiscation order was made,
21 notwithstanding that the basis of this document is that
22 in fact he received no benefit. So we say that this is
23 an example -- a good example, we submit -- of the
24 working relationship between the limb 1 concession and
25 the ground 2 or the limb 2 standard.
64
1 And when one considers it alongside the basis for
2 the concession in Hamilton, Henderson and Thomas, we
3 submit that the distinction relied upon between limb 1
4 and limb 2 on the facts is weak, with respect.
5 MR JUSTICE PICKEN: Just zooming in a little bit on that.
6 MS O'REILLY: Yes.
7 MR JUSTICE PICKEN: I was looking at page 1202 of the
8 respondent's -- which is the Henderson one.
9 MS O'REILLY: Yes.
10 MR JUSTICE PICKEN: Paragraph 12:
11 "The second category abuse is accepted, first
12 because it is improper to make the acceptability of Mrs
13 Henderson's basis of plea for false accounting
14 ...(Reading to the words)... Horizon system.
15 Moreover..."
16 Then there is a point about having already
17 (Inaudible). So it is that first point you draw your
18 analogy with.
19 MS O'REILLY: Yes. What distinction can possibly operate
20 between that basis, on which it is conceded that in
21 Hamilton there is a limb 2 abuse, and this, which is
22 said merely to be an incidence of an investigative
23 failure. That is the point we would make.
24 LORD JUSTICE HOLROYDE: I just wanted to understand about
25 the confiscation order, Ms O'Reilly, please. Just
65
1 looking at the schedules which you have helpfully drawn
2 up summarising the pleas and convictions and sentences.
3 And you can see from that that at row 6 in Mr Wilson's
4 case the confiscation order was getting on for £28,500.
5 And can we infer that that was the grand total of the
6 shortfall or shortfalls?
7 MS O'REILLY: Yes. There is a reference in his case to
8 a shortfall of between 27,000 and 28,000, so that figure
9 tallies, I think.
10 LORD JUSTICE HOLROYDE: Yes. For the purposes of the
11 offence of false accounting --
12 MS O'REILLY: On that point, my Lord, I simply point to the
13 part of the schedule which identifies that his pleas
14 were two offences of fraud by abuse of position.
15 I think in some instances the CCRC had misidentified
16 the offence.
17 LORD JUSTICE HOLROYDE: Yes.
18 MS O'REILLY: And the Post Office has helpfully set out
19 where that is the case. But his case was one of fraud.
20 LORD JUSTICE HOLROYDE: Thank you very much.
21 MS O'REILLY: There is another case which involved a basis
22 of plea, and that brings us to the second example, of
23 Nicholas Clark, who is at bundle A, page 1220.
24 LORD JUSTICE HOLROYDE: Yes.
25 MS O'REILLY: I am grateful.
66
1 The court can see there set out a summary of his
2 case. But at paragraph 3 we see a basis of plea
3 accepted by the Post Office, which is quoted in full.
4 I am not going to read it out but it is clear that the
5 agreed basis includes this appellant saying that there
6 were shortfalls and losses which caused him to falsify
7 the accounts.
8 It says that he had discovered in the period
9 from September 2008 to March 2009 that when balancing
10 the office there were shortfalls in cash on hand and he
11 was simply required contractually to make those good,
12 and hence how the offence came to be committed.
13 So we point to this case as another example where
14 the Post Office is accepting, as a basis of plea, that
15 there is a shortfall which is in a sense inexplicable.
16 And we point to the failure to investigate, again,
17 operating in that context.
18 So in the cases of Nicholas Clark and Julian Wilson,
19 we submit that there are, as we can see here, two
20 extreme examples of a similar problem, which of course
21 is the point that my Lord Mr Justice Picken raised,
22 which is the difficulty between the basis of the
23 concession in Hamilton and what the Post Office is
24 agreeing in these cases, whilst they are still failing
25 to investigate the unexplained shortfalls.
67
1 The next two cases we would draw to the court's
2 attention are two early cases. Those of Lisa Brennan
3 and David Yates. And in relation to the early cases we
4 make the general point that where an appellant is in
5 close proximity to the roll-out, the duty to investigate
6 Horizon as a reasonable or perhaps obvious line of
7 inquiry has special importance. And the court already
8 has the general submissions in relation to that.
9 I am not going to take the court through the facts
10 of Lisa Brennan, save to observe that she was one of the
11 five appellants who was tried by a jury and convicted.
12 The offences in her case were allegedly committed in
13 2001. That is very close in time, we submit, to the
14 roll-out and it is sufficiently close in time for the
15 investigative duty to have been of paramount importance.
16 The second case is David Yates. He pleaded guilty
17 in 2003 to offences which in the schedule are, I think,
18 undated. If I can be permitted to check.
19 Yes, in the schedule, at line 35, it is pointed out
20 at footnote 14 that we don't have an indictment.
21 However, it is clear enough from the witness statements
22 which have survived that there were schedules produced
23 which deal with discrepancies and shortfalls occurring
24 before and after Horizon is first rolled out. So he is,
25 in my submission, in terms of the offences in issue,
68
1 very close in time to the roll-out, certainly in
2 relation to a substantial part of the evidence.
3 MR JUSTICE PICKEN: You can probably deduce that from the
4 fact that Lisa Brennan was convicted in 2003 for
5 offences committed in 2001, and this conviction of
6 Mr Yates is also --
7 MS O'REILLY: Exactly.
8 There is one feature of David Yates' case which
9 I would draw to the court's attention. And if the court
10 would go to his portion of the respondent's notice at
11 1253 -- which I have miraculously now managed to close
12 on my computer. If the court would give me a moment.
13 (Pause). At page 1253 we see the summary of
14 Mr Yates, and if we carry on down to page 1255, which is
15 paragraph 12, we can see that Horizon was installed in
16 the branch on 11 July 2000. And an analysis of calls
17 between July 2000 and March 2003 shows that 79 calls
18 were logged as received. 46 were made in response. And
19 three calls were made by him in 2000 relating to
20 a balancing issue on the Horizon system.
21 So we say that that is an early example of what we
22 will submit is the egregious nature of the failure
23 to investigate.
24 The next case we draw to the court's attention --
25 LORD JUSTICE HOLROYDE: Just before you move on,
69
1 Ms O'Reilly, I just want to understand the reference you
2 made to shortfalls before and after Horizon.
3 MS O'REILLY: Yes.
4 LORD JUSTICE HOLROYDE: This case, like all the others, as
5 I understand it, is the subject of
6 a ground 1 concession.
7 MS O'REILLY: Yes.
8 LORD JUSTICE HOLROYDE: Because it is a Horizon
9 shortfall case.
10 MS O'REILLY: Yes. I make that reference in general terms
11 from having read the disclosure, which goes beyond what
12 is in the respondent's notice, but it is clear that
13 there are schedules produced, which start, I think, in
14 1997 or 1998 and go beyond 2000. And so in his case
15 I believe there was some evidence of discrepancies
16 occurring before, but it is conceded on the core(?) that
17 it was connected to Horizon. So we say the failure --
18 MR ALTMAN: Page 1254, paragraph 9.
19 MS O'REILLY: I am grateful.
20 LORD JUSTICE HOLROYDE: Yes, thank you.
21 MR JUSTICE PICKEN: I think the end of paragraph 10 as well.
22 LORD JUSTICE HOLROYDE: Yes.
23 MS O'REILLY: Thank you.
24 LORD JUSTICE HOLROYDE: Thank you, Ms O'Reilly.
25 You were about to move on and I stopped you, for
70
1 which I apologise.
2 MS O'REILLY: All right.
3 David Hedges is the next case we would draw to the
4 court's attention. Can I take the court, please, to
5 page 1175 of bundle A. This is a case where
6 on 7 July 2005 Mr Hedges had written to his contract
7 manager stating that there was an outstanding shortage
8 at the branch which was part of an ongoing problem. And
9 he wrote that letter in response to his contract manager
10 having written to him about an ostensibly small shortage
11 of £411. So in the case of David Hedges we would submit
12 that he is, on any rational or objective view, being
13 proactive and candid in explaining the difficulties he
14 is having.
15 And in 2005, when he is writing this letter, he is
16 saying that he has been experiencing difficulties for
17 some time. So even though this is happening in 2005, it
18 relates to a period which is close in time to
19 the roll-out.
20 So on the facts of that case, on those limited
21 facts, we would highlight that the failure to
22 investigate is, we would submit, sufficient to make out
23 an affront to justice.
24 The next case we draw to the court's attention is
25 that of Barry Capon, who appears at page 1215. In his
71
1 case, he had pleaded guilty to offences which had
2 allegedly taken place between 2003 and 2008 and we draw
3 this case to the court's attention because he himself
4 had kept a list of the shortages which he had observed,
5 and we can see that at paragraph 2; it is the final
6 sentence. He had raised specific issues which had
7 occurred since changing to Horizon Online.
8 The next case we would draw to the court's attention
9 is that of Siobhan Sayer. She pleaded guilty in 2010 to
10 offences allegedly committed in 2008 and 2009. We
11 simply emphasise her case as an example where she had
12 raised imbalances and cash shortages in interview and in
13 her case some ARQ data was obtained which was not
14 analysed. There is an earlier reference to that
15 elsewhere in the speaking note.
16 I will come now to the next case, which is that of
17 Margery Williams. Can I take the court, please, to
18 page 1236. Does the court have that?
19 LORD JUSTICE HOLROYDE: Yes, thank you.
20 MS O'REILLY: Thank you.
21 Margery Williams had pleaded guilty in 2012 to
22 offences allegedly committed in 2011. In her interview,
23 she had raised matters in relation to Horizon Online.
24 What we rely upon is what happened in court when she
25 pleaded guilty, which we say is instructive of the
72
1 implications of the limb 1 concessions. So can the
2 court look at paragraph 5 on page 1237.
3 What happened when Margery Williams went to court
4 and pleaded guilty at PCMH, at Plea and Case Management
5 Hearing, is described in an investigator's report which
6 is quoted in full there. What it says is that
7 Mrs Williams pleaded guilty to the four charges.
8 However, when her mitigation was presented, His Honour
9 Judge Hughes asked, "If that is the case, why would she
10 act dishonestly?". Her barrister said that her client
11 had stated that she had not stolen money and the hearing
12 was adjourned because His Honour Judge Hughes had
13 suggested the possibility of a Newton hearing. There
14 was clearly an interval, during which time Margery
15 Williams spoke to her counsel, and when they came back
16 into court, Ms Owen, her counsel, explained that her
17 client had stated she may have booked the remittance
18 pouch in twice and had not accounted for the money
19 correctly. There was then a conversation about that and
20 eventually, when the hearing resumed, by which time
21 there had been a further conference with Margery
22 Williams and her counsel, she accepted in court that she
23 had stolen the money.
24 So we say that this is instructive as to the way in
25 which the pressure that is generated by the
73
1 investigative and disclosure failing can come to bear in
2 a way that is obviously different from the pressure that
3 is operating on someone like Joe Hamilton, for example,
4 in the conceded cases, but which is nonetheless pressure
5 that offends, or should offend, the court's conscience.
6 What is the difference, we would submit, between Margery
7 Williams in that courtroom, who is during the course of
8 one hearing essentially forced to move to an admission
9 of theft, having been faced with the consequences of
10 a Newton hearing, which we all know are often
11 calamitous, and the pressure that Joe Hamilton or
12 Allison Henderson or Alison Hall or Hughie Thomas faced
13 when they were offered pleas on conditions.
14 We say this a good example of how the pressure can
15 manifest itself in different ways and the symptoms may
16 look different but they are borne of the same vice.
17 MR JUSTICE PICKEN: I suppose you say in a sense it is
18 particularly graphic when you have a judge (Inaudible)
19 views, saying essentially "Are you sure about this?"
20 MS O'REILLY: Yes, and one can understand how it happened,
21 because of course His Honour Judge Hughes was none the
22 wiser than Margery Williams. This case also represents,
23 we would submit, a good example of a direct
24 confrontation between the foundation of the limb 1 abuse
25 and the integrity of the courts' process itself. That
74
1 is the case of Margery Williams.
2 The next example we would bring to the court's
3 attention is that of Gillian Howard. We bring her case
4 to the court's attention for this reason. She pleaded
5 guilty in 2011 to offences allegedly committed in 2008
6 and 2010. Her portion of the respondent's notice is at
7 1242, and can I take the court to that, please. In
8 fact, can I take the court to page 1244, because
9 I simply wish to highlight what is said on that page.
10 On page 1244, if the court simply scans through from
11 paragraph 9 onwards, one can see that she has raised
12 problems with the transition to Horizon Online but then,
13 at paragraph 11, we can see that, during their time --
14 because I believe she formerly ran the branch with her
15 husband -- the Howards made 39 calls to the national
16 business support centre, 22 of which concerned
17 unexplained shortfalls or accounting problems. We say
18 that is a stark example of a failure to investigate
19 against particular evidence of phone calls and therefore
20 seeking help.
21 MR JUSTICE PICKEN: You essentially say, wherever there is
22 a concession as regards ground 1, there is
23 an unexplained shortfall, and then it should be the case
24 that that same concession leads to a concession on
25 ground 2?
75
1 MS O'REILLY: Yes. The court needs no additional or extra
2 facts or information. The facts which are part of the
3 limb 1 concession are sufficient to secure the
4 foundation for limb 2.
5 I have two more examples left. The penultimate one
6 is that of Kashmir Gill, who pleaded guilty in 2010 to
7 offences allegedly committed in 2009. In relation to
8 her case, can I please take the court to bundle C,
9 page 744.
10 This is a schedule of disclosable extracts which
11 includes most of the contents of a memo which deals with
12 Ms Gill, A15, and deals with the decision that was taken
13 this her case, which is referred to in the respondent's
14 notice, which was that there had been a theft charge
15 which the respondent decided not to proceed with in the
16 end because money had been repaid, the monies had been
17 repaid.
18 We can see in the first box some discussion of this
19 decision, where it said:
20 "For reference, a guilty plea to falsification of
21 accounts has been entered, leaving one charge of theft
22 disputed for Crown Court trial in June. To my mind ...
23 [et cetera] false accounting admissions should stand,
24 leaving the merits of pursuing a single count of theft
25 for monies already repaid to be questioned. In essence,
76
1 Richard and I believe, as does Colin Price [who I think
2 was an investigator] that there is little merit in
3 pursuing this now as a theft case, given the age of
4 [I assume Ms Gill] and the fact that monies are repaid."
5 Now, in any case where monies subject to a theft
6 count have been repaid, there is a plain and obvious
7 question it was to whether it would be in the public
8 interest to proceed, but we submit that the court should
9 consider this, which may on its face look innocuous, but
10 consider it alongside for example the concession in
11 Joe Hamilton's case, where the Post Office have accepted
12 that a theft charge was essentially wielded in a way
13 that certainly made it look as if the prosecution
14 process was being used as an enforcement mechanism for
15 repayment. We invite the court to consider this as
16 being equally consistent with the fact, not that it was
17 not just not in the public interest to proceed with the
18 theft charge, but that the theft charge had served its
19 purpose.
20 The final case which we draw to the court's
21 attention, and one which we say is an important one
22 generally, is that of Damien Owen, who is one of the
23 appellants who was tried and convicted. He was tried in
24 2011 in relation to offences allegedly committed in 2009
25 and 2010, and his portion of the respondent's notice is
77
1 at 1165.
2 Now, if the court can turn to page 1166, please,
3 paragraph 8, we can see what Mr Owen said in interview,
4 which was that his branch had migrated to Horizon Online
5 on 23 July 2010, when a thorough cash check was carried
6 out, et cetera, and the accounts balanced. On 24 July,
7 so at the time of the migration, a discrepancy of £700
8 was found. Mr Owen said he was told it would work
9 itself out. The branch then traded as normal until
10 9 August, a period of about two weeks, and there was
11 then an audit on 9 August, apparently two weeks after
12 the migration, the outcome of which came as a big shock
13 to him. So we are dealing with a Horizon Online case,
14 a discrepancy observed immediately upon migration and
15 an audit two weeks after migration.
16 In his first defence statement, Mr Owen denied he
17 had falsified records. His defence statement said:
18 "The defendant does not know whether the accounting
19 procedures adopted to produce the information are
20 accurate, nor whether there is a shortfall as alleged.
21 Further, it is Mr Owen's understanding that the
22 accounting systems operated by the Post Office
23 are notorious for producing imbalance anomalies."
24 So at his trial Horizon Online was fairly and
25 squarely in issue. We say that this case is a clear
78
1 example of how the implications of limb 1, properly
2 analysed, inexorably lead to the limb 2 standard.
3 Before we make our concluding submissions in
4 relation to Damien Owen, can I ask the court to turn to
5 C48.
6 LORD JUSTICE HOLROYDE: I wonder if it might be better if we
7 do that after the short adjournment.
8 MS O'REILLY: Yes, of course. Thank you.
9 LORD JUSTICE HOLROYDE: I just want to look again at
10 paragraph 8, which you drew to our attention.
11 MS O'REILLY: Yes.
12 LORD JUSTICE HOLROYDE: I am just trying to follow through
13 the dates.
14 MS O'REILLY: Yes.
15 LORD JUSTICE HOLROYDE: Mr Owen is saying the outcome of the
16 audit on 9 August 2010 came as a very big shock. Could
17 you explain the shortage, cash should have balance --
18 balance the previous Wednesday?
19 Do you know whether that was in issue at the trial,
20 the proposition, the balance last week and how it was
21 supposed to be £20,000-odd?
22 MS O'REILLY: Well, the short answer is no but we do have
23 fairly extensive paperwork in relation to that, so I can
24 certainly check.
25 LORD JUSTICE HOLROYDE: Thank you very much.
79
1 MR STEIN: My Lord, may I mention just one matter, we hope
2 still to get to the stage this afternoon where we will
3 deal with the individual appeal on behalf of
4 Stanley Fell. We have, unusually for us, a speaking
5 note for his particular matter. We have hard copies of
6 that, if that would assist the court, but I am conscious
7 of the current conditions in relation to passing over
8 items.
9 The court has a copy and can print off its own
10 copies; that is other way forward.
11 LORD JUSTICE HOLROYDE: Speaking for myself, I would
12 certainly like a hard copy if you have got one. I think
13 my Lord and my Lady would as well. Can you also email
14 it to Mr Mariani, so that he can receive electronic
15 copies as well.
16 THE CLERK OF THE COURT: It has been received and I emailed
17 it to the parties.
18 LORD JUSTICE HOLROYDE: As always, Mr Mariani is several
19 streets ahead.
20 MR STEIN: Yes, my Lord.
21 LORD JUSTICE HOLROYDE: Thank you very much. We will sit
22 again at 2.00. Thank you.
23 (1.01 pm)
24 (The Luncheon Adjournment)
25 (2.00 pm)
80
1 LORD JUSTICE HOLROYDE: Yes, Ms O'Reilly. Perhaps unwisely
2 I have had all my files tidied away, so I am afraid you
3 will have to start by giving me a page reference.
4 MS O'REILLY: May I first apologise for not allowing the
5 court to rise at 12.55. I lost track of time.
6 I'm very sorry.
7 LORD JUSTICE HOLROYDE: It was my fault.
8 MS O'REILLY: I had been referring to the case of
9 Damien Owen, whose part of the respondent's notice is at
10 1165 at bundle A.
11 LORD JUSTICE HOLROYDE: Yes, thank you.
12 MS O'REILLY: And I had, I think, taken the court to
13 paragraph 8 onwards. That is on page 1166, where I had
14 pointed to the fact that the migration to Horizon Online
15 was relevant in his case.
16 What I want to do now, please, is take the court to
17 the email at bundle C48, which the court was taken to
18 on Monday.
19 MR JUSTICE PICKEN: Is that page 48?
20 MS O'REILLY: Yes, C, page 48. Thank you.
21 This email, the court will recall, related to the
22 integrity of Horizon Online and was forwarded to
23 Juliet McFarlane and Jarnail Singh on 8 October 2010.
24 Those two names, Juliet McFarlane and Jarnail Singh, may
25 by now be well known to the court. They were lawyers
81
1 who were the case lawyers in a number of the appellant's
2 cases. And there is a short summary of the cases in
3 which they were acting in our agreed facts, which are in
4 bundle G. For completeness, I can give the court the
5 reference now.
6 At bundle G, page 44 and 45, for future reference,
7 that is where the court can see which lawyer had
8 which appellant.
9 LORD JUSTICE HOLROYDE: Thank you.
10 MS O'REILLY: But I draw the court's attention to this email
11 because, it having been forwarded to Juliet McFarlane on
12 8 October 2010, it is relevant in Damien Owen's case
13 that she was his case lawyer. So when he came to be
14 tried in 2011, and when he gave evidence to the jury as
15 he did, about, in part, how the migration to Horizon
16 Online had caused difficulties, Juliet McFarlane had
17 been in possession of this email for a year.
18 So we say that that is an example of how the
19 non-disclosure is not near non-disclosure, but how
20 certainly one can see the limb 1 abuse operating in that
21 example, because there has been no disclosure and there
22 has been no investigation. But what we submit is
23 animating the limb 1 abuse, with reference for example
24 to that email, is the affront to justice.
25 So we say that that case of Damien Owen is another
82
1 good example of the working relationship between the
2 limb 1 concession and the limb 2 standard.
3 So that is the final example we would draw to the
4 court's attention. We submit that whilst it is not
5 necessary to decide ground 2 by reference to
6 an individual analysis of each of these cases, it is
7 equally clear that the common ground between them, and
8 between the facts of the ground 2 concessions, is
9 sufficient to allow the court to make a limb 2 finding.
10 Those are the facts we would bring to the
11 court's attention.
12 Can I assist any further?
13 LORD JUSTICE HOLROYDE: No, thank you very much indeed.
14 I think it is Ms Busch next, isn't it?
15 Submissions by MS BUSCH
16 MS BUSCH: My Lords and my Lady, I propose to take this
17 relatively quickly because, as you know, my primary case
18 is that the grounds upon which category 1 abuse is
19 considered should also be taken --
20 LORD JUSTICE HOLROYDE: Feel free to take your mask off, if
21 you wish, when addressing us, Ms Busch. It is entirely
22 up to you, but it is something of a muffle at
23 the moment.
24 MS BUSCH: It is bad enough my (Inaudible) earlier as it is.
25 Just by way of introduction, you will have seen that
83
1 the skeleton sets out the relevant chronologies between
2 each of the three appellants with whom I am dealing.
3 I don't propose to go through all of that, unless
4 I am invited to, and the relevant bundle references are
5 all there. What I do propose to do is, first to go to
6 the relevant parts of the respondent's notice dealing
7 with the three appellants and then I want to take the
8 matter of the Post Office mediation scheme, the courts,
9 drafted by Second Sight, specifically because they set
10 out a helpful summary of the relevant background facts.
11 The first point that I make relates to the period
12 expired since the respective dates on which the
13 appellants were tried and convicted and indeed
14 sentenced. And I make the point that in the case of
15 Tracey Felstead she had been waiting nearly 20 years to
16 have her conviction overturned. And Ms Skinner and
17 Ms Misra had also been waiting a considerable period of
18 time, in excess of ten years.
19 So in essence, if my Lords and my Lady can take the
20 submissions that I have made, both yesterday and today,
21 as applying to the specific cases of the three
22 appellants, I reiterate the point which I made earlier
23 on today, which is that not only is there a question of
24 non-disclosure et cetera in the period between charge
25 and trial, but subsequently, notwithstanding the Post
84
1 Office's awareness of the Horizon issues, still no
2 information forthcoming concerning what the Post Office
3 knew about the reliability of that, the reliability of
4 Horizon, with the result that the three appellants have
5 had to wait, as I say, a very considerable period of
6 time with their criminal convictions hanging over them
7 and all the consequences that that has for their lives,
8 right up until, in the first place, the group
9 litigation, the judgments in that case, and secondly the
10 present proceedings.
11 And I do say that is all part of the mix, not only
12 the category 1 abuse case but in particular the
13 category 2 abuse case.
14 I also reiterate the point that I made earlier on
15 today, which is that in my submission the respondent has
16 misconstrued category 2 abuse as comprising in effect
17 a sort of heightened category 1 abuse. So they seem to
18 be of the view that something more vis-a-vis the conduct
19 of the trial is required in order to establish
20 category 2. And obviously by definition there is going
21 to be more done than the category 1 issues, and again
22 I say that is misconceived because in fact if one takes
23 the proper approach to category 2, focusing not on
24 fairness to the accused but on the respondent's conduct
25 in relation to the court, then a category 2 case is made
85
1 out, even on the basis of the matters referred to in the
2 respondent's notice.
3 MR JUSTICE PICKEN: Ms Busch, presumably you adopt
4 Ms O'Reilly's 'compare and contrast' submissions as
5 regards the cases that have been conceded, the four
6 cases conceded.
7 MS BUSCH: I do, yes.
8 MR JUSTICE PICKEN: And presumably you further adopt -- it
9 is an oversimplification, I acknowledge, but nonetheless
10 the core submission is that if it is an unexplained
11 shortfall case, it is a category 2 case, in cases other
12 than those four conceded cases, and you don't
13 need extra.
14 MS BUSCH: Indeed, my Lord, precisely. Very helpful, again,
15 if I can respectfully say so. Indeed.
16 So taking up the respondent's notice, starting in
17 the second bundle A in my bundles, it starts at
18 page 1147. Then the relevant sections come from those
19 paragraphs, 37, the heading -- page 1160, under the
20 heading "Part 2 appellants convicted after trial" and
21 paragraph 37:
22 "Three appellants were convicted of theft following
23 a trial, and one of the appellants, Seema Misra, was
24 convicted of theft following a trial having previously
25 pleaded guilty to several counts of false accounting."
86
1 As far as that was concerned, plainly, as the court
2 will be aware, the accounts had to tally when the
3 trading period finished and then recommenced, otherwise
4 the relevant sub-postmaster would not be able to trade.
5 So, rightly or wrongly, many, the evidence suggests, had
6 no option other than to ensure that the accounts did
7 tally, because otherwise they would lose their job. And
8 seeing as they did that in circumstances where it was
9 entirely unclear to them what was happening, their
10 actions are, I submit, understandable.
11 So then dealing first with Tracey Felstead, starting
12 on page 1160, the details of paragraph 1, she was
13 convicted of theft of in excess of £11,000 and two
14 counts of false accounting. And then the background
15 facts are set out.
16 Paragraph 4:
17 "When formally interviewed in 2001, Ms Felstead said
18 ...(Reading to the words)... when asked if there was
19 anything she wished to add or clarify, she said, 'Yes,
20 I never stole money'. When asked to elaborate she
21 declined to do so. When asked if she denied false
22 accounting, she answered, 'No comment'. Asked why she
23 was not denying ...(Reading to the words)... she
24 replied, "I didn't do nothing. No comment". No
25 ...(Reading to the words)... material to identify the
87
1 detail of what the defence case was."
2 But then paragraph 6:
3 "Based on the ...(Reading to the words)... available
4 in the criminal proceedings there is nothing to suggest
5 any ARQ data was obtained."
6 Again, I rely on the observations of
7 Mr Justice Fraser in that connection -- without going
8 back to them yet again.
9 And then a little bit (Inaudible) paragraph 7:
10 "It is accepted that the reliability of Horizon
11 ...(Reading to the words)... might have been essential
12 in her case."
13 Paragraph 8:
14 "Therefore it is accepted that the evidence could
15 lead to a finding of first category ...(Reading to the
16 words)... and of course the respondent has conceded that
17 first category abuse does apply in this case and
18 therefore one may reasonably infer that if the
19 respondents accepts it is ...(Reading to the words)...
20 Horizon data was essential in the case."
21 LORD JUSTICE HOLROYDE: You have emphasised the word "Might"
22 and the word "could".
23 Is Ms Felstead's case the only one where that
24 language is used? It doesn't immediately jump out
25 as such.
88
1 MS BUSCH: Certainly compared to Ms Misra.
2 MR JUSTICE PICKEN: Indeed. But more generally, I don't
3 think we have yet come across a "might". It has been
4 an assertion.
5 MR ALTMAN: My Lord, it is where the authors -- or let me
6 explain it. It is because there was no other material.
7 There was a dearth of material in this particular case
8 and therefore the use of the word "might" was
9 deliberate, because while recognising the possibility
10 that the reliability of Horizon data was essential in
11 this case, we didn't want to exclude it completely and
12 therefore we used "might". We couldn't say definitely.
13 MS BUSCH: I am grateful to my learned friend. In any
14 event, as I say, category 12 abuse is conceded in
15 this case.
16 So then we can see this might have been
17 an unexplained shortfall case. (2):
18 "There is nothing to suggest any ARQ data was
19 obtained (Inaudible) the criminal proceedings."
20 So it was assumed there was no evidence to
21 corroborate the Horizon evidence, and where there was
22 a denial of theft, there was no proof of actual loss, as
23 opposed to a Horizon generated shortage. And finally,
24 there was no evidence of any investigation into the root
25 cause of the shortfall.
89
1 I do take my learned friend's point about the
2 absence of information and evidence, but I do submit
3 that in the circumstances the court should give the
4 benefit of the doubt to Ms Felstead.
5 In any event, the element of uncertainty is enough,
6 in my submission, to make her conviction unsafe, given
7 the applicable standard of --
8 MR JUSTICE PICKEN: I think you presumably say if "might" is
9 enough to proceed with ground 1, it ought to be enough
10 to proceed --
11 MS BUSCH: Precisely.
12 Again, I do, yes, adopt Ms O'Reilly's submission as
13 regards the shortfall cases. And as I say in the cases
14 of each of the appellants, and this in my submission is
15 critical to the category 2 case, is that if in each
16 case, above and beyond the pure circumstantial evidence,
17 to which I will come in a minute, in no case is there
18 evidence, hard evidence, if you like, of a theft taking
19 place, such as, for example, an entry in a bank
20 statement corresponding to the sum that went missing.
21 So the only evidence on the basis of which the
22 appellants could be and were convicted was evidence as
23 regards the reliability of Horizon and what it showed
24 about the defective accounts. And of course we know now
25 that -- or at least my submission is that the
90
1 Post Office was aware of the unreliability of the
2 Horizon data and failed to disclose that to court, and
3 that is where one has the element of misleading the
4 court, relevant to a category 2 case.
5 And Ms Felstead's case was obviously relatively
6 early in the proceedings, inasmuch she was investigated
7 in 2001, but we have seen the evidence in the course of
8 the arguments so far as -- I don't want to go back to
9 it, but Mr Moloney's helpful submissions drawing the
10 comparison between the problems that Horizon suffered
11 during the trial and then the passages in
12 Mr Justice Fraser's judgment where he compares that
13 situation to the problems that immediately were
14 occurring once it had been rolled out.
15 So at the very least, even if the respondent were to
16 say, well, the Post Office didn't know in 2001 what it
17 knew by say 2010, in my submission it should have been
18 alert to the fact that there was a sufficient element of
19 uncertainty as to the reliability of Horizon data to
20 render a prosecution leading to a conviction unsafe.
21 And it is precisely the set of circumstances, in the
22 absence, as I say, of any hard evidence that Ms Felstead
23 actually was guilty of theft, it is a situation that
24 calls out for an investigation into the Horizon system.
25 As I say, even if that is wrong, which I say it
91
1 isn't, then if and when the Post Office did become aware
2 of the problems with Horizon, then it was incumbent upon
3 it to tell her and others in her position as soon
4 as practicable.
5 So we then come on to Misra. Ms Misra was charged
6 with six offences (Inaudible) charge of theft. And then
7 we get details of the audit in her branch.
8 MR JUSTICE PICKEN: Ms Busch, I am so sorry, can I just
9 explore that last point.
10 If you look at the respondent's notice at
11 paragraph 9, in fact paragraph 10 at page 1152, it says
12 there, under the first category of abuse of
13 process heading:
14 "In those cases set out below, the reliability of
15 the Horizon data was essential to the prosecution and
16 conviction of the defendant, ...(Reading to the
17 words)... where there was inadequate investigation
18 and/or full and accurate disclosure was not made, the
19 respondent does not resist the appeal on the grounds of
20 abuse of ground 1."
21 We know that. But do you submit that inherent in
22 that, therefore, in the case of Mrs Felstead and any
23 others where ground 1 has been conceded, is
24 a recognition that there was an inadequate investigation
25 and inadequate disclosure and therefore of what is said
92
1 by reference to later documents dating from 2010 and so
2 forth, being recognised by the Post Office in the
3 context of ground 1.
4 MS BUSCH: My Lord, very helpful, as ever, yes. Yes.
5 MR JUSTICE PICKEN: So you pray in aid that as well as the
6 ability to look at the later documents and say, well,
7 you can infer that that is how it was ever?
8 MS BUSCH: Absolutely, my Lord. Absolutely.
9 LORD JUSTICE HOLROYDE: I understood you possibly to be
10 making also a separate point, Ms Busch. Were you
11 suggesting that even if the Post Office didn't know as
12 much in 2001 as it did later, when it did know later on
13 of the concerns, it should have gone back to previous
14 convictions and started notifying convicted persons: you
15 ought to know what has emerged recently.
16 Was that the submission you were making? It just
17 wasn't quite clear to me.
18 MS BUSCH: It is, my Lord. It is, my Lord.
19 And I should say, obviously there are certain
20 practicalities about attending to that submission. But
21 coming back to the category 2 case, it is not simply
22 a matter of the appellants and others in their position
23 having to labour under their conviction for the relevant
24 period of time, in a situation in which they were
25 incapable -- obviously at various times (Inaudible) to
93
1 query Horizon data but they were certainly not in
2 a position to prove that it was the unreliability of
3 Horizon, but that was in issue.
4 But of course also the courts, having convicted
5 appellants on the basis of what they assessed to be
6 evidence that substantiated their guilt, the courts have
7 been in a situation of being misled in that respect for
8 the relevant periods of time.
9 So I say it is incumbent on the Post Office to
10 clarify the situation for all parties concerned as soon
11 as possible. And as I say, there will be practicalities
12 as to precisely how that should be done. But I just
13 say, I submit that the silence over the years up until
14 the group litigation proceedings simply compounds the
15 misconduct that surrounds each individual appellant's
16 trial and conviction.
17 But yes, my Lord, to answer Mr Justice Picken's
18 point, I do submit that the respondent evidently
19 recognises that at the very least an investigation
20 should have taken place, given the, again at the very
21 least, uncertain status of Horizon as a robust and
22 reliable system.
23 Obviously that submission derives even more force
24 when one does not look at each individual occurrence
25 case in isolation but views them as a whole, which in my
94
1 submission is the correct approach to take to them.
2 MRS JUSTICE FARBEY: So the number of times it happens is,
3 so to speak, an aggravating feature in that, firstly, it
4 shows no learning or, as you say, attempts to learn, and
5 secondly, assessing the facts of an individual case, one
6 could look back to what has happened in other cases and
7 say that that particular judge was misled against the
8 background of that having happened to (Inaudible) in
9 effect an aggravating feature, assisting you to reach
10 the threshold on ground 2.
11 Is that what you are saying?
12 MS BUSCH: My Lady, precisely, yes.
13 Then just in terms of compounding factors, without
14 going into my appendix in too much detail, but simply to
15 note Ms Felstead's youth at the relevant time. She was
16 born on 8 October 1982.
17 And you will see from the appendix, the chronology,
18 that she was actually on holiday at the time when the
19 loss in her stock took place in February 2001. So we
20 have a young woman, off on holiday, she is not even
21 there when the money vanishes, and she returns to face
22 the consequences of the fact that this much money has
23 gone missing. So yet again, in my submission,
24 a situation crying out for a contemporaneous
25 investigation of the facts.
95
1 We then come in the respondent's notice to
2 Seema Misra's case, starting at page 1161, paragraph 1.
3 Ms Misra is charged with six offences of false
4 accounting and a single charge of theft. And there is
5 reference in paragraph 2 to the audit of her branch on
6 14 January 2008, where she was SPM, discovered a
7 shortfall of 74,609.88. And then she says that there
8 would be a shortfall of around 50,000 or 60,000 due to
9 thefts by former members of staff, of around £89,000.
10 Again, I just make an observation as to the somewhat
11 egregious situation in which sub-postmasters found
12 themselves when faced with the shortfalls in their
13 accounts, in that one sees in many instances that the
14 only explanation they could think of is that their
15 colleagues rather than they themselves had been
16 stealing money. As I say, that, again, is an element of
17 the matrix, having responsible people forced in effect
18 to make unfounded allegations against their colleagues
19 in circumstances where an unfounded allegation has been
20 made against them.
21 Of course there may be cases in which the colleagues
22 did actually (Inaudible). I am not in a position to
23 say. But certainly in many instances the SPMs had no
24 option other than to make such a suggestion.
25 Then we have more detail as to the background facts.
96
1 In paragraph 8 over the page, we see she pleaded guilty
2 to six counts of false accounting. Then her first trial
3 in May 2009 for theft was aborted at the start when she
4 raised issues as to Horizon's reliability and suggested
5 that errors on the system accounted for some of the loss
6 (Inaudible), albeit she continued to assert that there
7 had been staff thefts.
8 And then at paragraph 9, numerous disclosure
9 requests followed, including about Horizon. The second
10 defence statement stated that the general defence is
11 that there have been unquantifiable thefts by former
12 employees, causing loss, but this has been compounded by
13 operation faults in the Horizon computer system.
14 Then paragraph 10, ARQ data was requested.
15 Requested a report of all transactions of events,
16 including inactivity, log-outs and log on/log off
17 information to the office, including remittances
18 received, transfers of documents and error notices for
19 the period 7/2006 to 7/2007 which covered the period of
20 the false accounting.
21 The fifth count covered the period for when
22 Mrs Misra was appointed SPM, 13 June 2005, to the date
23 of the audit, 14 January 2008. The ARQ data was
24 disclosed to the defence(?) but it was not (Inaudible)
25 data and did not cover the whole of the
97
1 indictment period.
2 Then we see at paragraph 11 the defence expert
3 evidence request of Charles McLachlan regarding Horizon,
4 six reports served in total, and one of the issues
5 raised was whether (Inaudible) problems which afflicted
6 the Callendar Square branch could have been the cause of
7 the losses at Mrs Misra's West Byfleet branch. In
8 addition (Inaudible) advanced a series of hypotheses,
9 including whether the user interface gave rise to
10 incorrect data entry and whether the system failed to
11 process the transactions properly.
12 Then of course it was at Mrs Misra's trial that
13 Gareth Jenkins gave evidence and ruled out the Callendar
14 Square bug as the cause of the losses.
15 Then moving on -- sorry, he rejected most of
16 Professor McLachlan's hypotheses but did concede that he
17 could not exclude the possibility of any errors in the
18 system but he said that it could not be the cause of the
19 volume of losses in question.
20 Then I don't want to read out the whole thing,
21 obviously, but at paragraph 30 the trial recommenced on
22 11 October 2010.
23 And then at paragraph 16, Mrs Misra was convicted of
24 theft on 21 October 2010. And then there is a record of
25 the fact at paragraph 17 that before Mrs Misra's trial
98
1 the Post Office and Fujitsu met to discuss the receipts
2 and payments mismatch bug and the report which we are
3 all familiar with of the bug that appears to arise
4 online in 2010 was then thought to affect 14 branches.
5 The receipts and payments mismatch bug was
6 (Inaudible) in his judgment. And then more detail about
7 Mr Jenkins, the court, the meeting between Fujitsu and
8 the Post Office, the attendance note, issues notes, all
9 of which you have seen.
10 LORD JUSTICE HOLROYDE: I am sorry to interrupt you, again,
11 Ms Busch. I know it is difficult to keep your voice up.
12 But in addition to volume I am just becoming
13 increasingly conscious that although we have the papers
14 and can read what you are reciting, peopling listening
15 remotely I think will be finding it difficult to hear
16 quite a lot of what you are saying at the moment.
17 So do please keep your voice up, including when
18 reading passages which we have but others don't.
19 MS BUSCH: I apologise, my Lord.
20 LORD JUSTICE HOLROYDE: It is all right. It is
21 easily overlooked.
22 MS BUSCH: We then have a number of paragraphs, which I will
23 not read out because they cover ground which we have
24 already covered in depth concerning the receipts and
25 mismatch bug.
99
1 But then in paragraph 25 it is accepted that
2 evidence of Horizon was essential to Mrs Misra's case.
3 And paragraph 26, it is accepted that the evidence could
4 lead to a finding of the first category of abuse of
5 process, for the following reasons. This was an
6 unexplained shortfall case. Although ARQ data was
7 obtained and disclosed, it was not the best evidence.
8 There was no examination of that for bugs, errors or
9 defects or for evidence of theft.
10 It appears there was no evidence to corroborate the
11 Horizon evidence. There was no proof of an actual loss
12 as opposed to a Horizon-generated shortage. The
13 appellant raised problems with Horizon at the
14 commencement of her first trial and (Inaudible) where
15 Mrs Jenkins and Professor McLachlan gave evidence.
16 The defence have made numerous disclosure requests
17 and three applications for the stay of the indictments
18 on abuse of process on the grounds of non-disclosure
19 (Inaudible). There has been inadequate investigation
20 into the root causes of the shortfall. The receipts and
21 payments mismatch bug also been considered for
22 disclosure and disclosed in the trial where issues of
23 Horizon reliability were involved. No distinction is
24 made between convictions for false accounting and
25 convictions of theft on the grounds of fairness.
100
1 For the sake of completeness, at paragraph 27:
2 For these reasons, the respondent will not oppose
3 the appeal on the basis of first category abuse of
4 process. And then:
5 As submitted above, it is not accepted for the
6 reasons given by the CCRC as to the second category of
7 abuse of process applied to this case.
8 And my Lords and my Lady will anticipate that
9 I demur from that proposition. I say that the grounds
10 in support of grounds 1 also support ground 2 or
11 category 2 abuse, due to the fact that not only was the
12 defence team misled but so too was the court, in the
13 respects which I have already outlined, namely relating
14 in particular to Horizon.
15 Then finally, Janet Skinner is dealt with starting
16 on page 1197 of the respondent's notice. At
17 paragraph 1, the appellant was charged with theft and
18 false accounting. On 5 January 2007 at the plea and
19 case management hearing, she pleaded guilty to one count
20 of false accounting and theft (Inaudible) on the file.
21 Again, I don't want to read out the entire document,
22 but at paragraph 5 it is accepted that Horizon evidence
23 was essential in the case. More details are set out.
24 Paragraph 6:
25 "It is accepted that the evidence could lead to a
101
1 finding of first category abuse of process for the
2 following reasons."
3 Again, unexplained shortfall case. Audit by
4 accountant provided a Horizon-generated office snapshot
5 of the amount of cash on the premises. Although there
6 is a reference to a Horizon data disc in the exhibits,
7 it is not known what it contained or whether it was
8 disclosed to the defence.
9 It appears that there was no evidence to corroborate
10 the Horizon evidence. The statements from other members
11 of staff did not plug that gap. There was no proof of
12 actual loss as opposed to a Horizon-generated shortage.
13 No disclosure of the circumstances surrounding the
14 dismissal of one of the staff members. And no
15 investigation into the various helpline calls made by
16 Ms Skinner. For these reasons, the respondent will not
17 oppose the appeal on the basis of first category abuse
18 but does not accept second category abuse.
19 So this was a fairly typical case as far as the
20 category 1 cases are concerned. Again, I effectively
21 make the same submissions I have already made. Horizon
22 evidence essential. Non-disclosure, non-investigation,
23 leading to the misleading not only of the appellant, or
24 the defendant as she then was, but also the court, and
25 again the failure even after conviction and sentence
102
1 when matters had, on any point of view, come to light to
2 expose (Inaudible).
3 Those really are the essential points that I wish to
4 make. Obviously seeing the Misra case is in a sense
5 particularly stark because of the direct involvement of
6 Mr Jenkins in that case and the fact that he gave
7 evidence and failed to, as Mr Justice Fraser put it,
8 tell the truth, the whole truth and nothing but
9 the truth.
10 My Lords and my Lady will recall that in my skeleton
11 and in my speaking note I referred the court to the case
12 of R v Irwin and others. And again I will not go to it,
13 but paragraph 87 of my skeleton argument is concerning
14 the likely reaction of the court in circumstances where
15 untrue evidence is given.
16 That, in my submission, reflects again the
17 seriousness, self-evidently, of the matter as against
18 (Inaudible) a ground 2 case.
19 Then just for a little bit more flesh on the bones,
20 if we pick up the bundle C2. I don't rely on these
21 documents as having a special significance so far as
22 their status is concerned in relation to my argument,
23 but it is simply that they set out a handy summary of
24 the factual background.
25 Turning first to the case review related to
103
1 Ms Felstead, which is at page 659 of bundle C2. For the
2 benefit of those listening, this is entitled
3 "Post Office mediation scheme, Second Sight case review
4 report". And a case reference is given.
5 Applicant: Tracey Banks, nee Felstead, and the name of
6 the adviser and the date of 8 August 2014.
7 In the introduction section, again there is
8 a recitation of background facts. Then under the
9 heading "Points of disagreement between the Post Office
10 and the sub-postmaster", 3.1:
11 "The applicant has consistently denied
12 responsibility for the loss ...(Reading to the words)...
13 caused by problems of Horizon. Other contributory
14 factors with a reported instance of ...(Reading to the
15 words)... procedures within the Camberwell Green Crown
16 Office and problems related to staff sharing the same
17 till or stock unit, including during holiday periods."
18 And then at 3.2, this is as at August 2014, the
19 Post Office believe the loss was due to theft by
20 the appellant.
21 So even at that late stage, for the purposes of the
22 mediation scheme, 2014, the Post Office was maintaining
23 that the appellant was guilty of theft. The implication
24 being that there was no problem with Horizon. Horizon
25 was, as the Post Office had consistently
104
1 maintained, robust.
2 So again, insofar as misleading conduct was
3 concerned, as I say, it was not simply the appellants.
4 It was not simply the appellants but in addition the
5 courts and indeed the parties responsible for conducting
6 the mediation scheme.
7 MR JUSTICE PICKEN: That was the position still when the
8 matter came before Mr Justice Fraser.
9 MS BUSCH: Indeed, my Lord, indeed.
10 LORD JUSTICE HOLROYDE: Just again, conscious of those
11 listening in about payments, Ms Busch, just explain in
12 a nutshell, please, why it is that in 2014, 12 years
13 after her conviction and sentence, Ms Felstead was in
14 this discussion. What was the mediation scheme and
15 Second Sight involvement in that.
16 MS BUSCH: My Lord, the mediation scheme was aimed at
17 settling the group litigation proceedings. But in the
18 end it didn't go anywhere.
19 LORD JUSTICE HOLROYDE: So that is how it cropped up more
20 than a decade later?
21 MS BUSCH: Yes. It is quite right that the Post Office --
22 that the position that Horizon was robust was maintained
23 right up to and including the -- well, right up to the
24 group litigation, and indeed certainly at the
25 commencement of that litigation, again without going to
105
1 Mr Justice Fraser's comments about the need for
2 additional evidence from the Fujitsu witnesses in order
3 finally to understand the true position -- but I suppose
4 the point is, and the point I wish to make is that even
5 when the issue was directly raised in 2014, therefore
6 giving the Post Office an opportunity, if you like, to
7 come clean, if I can put it that way, they didn't do so.
8 And evidently they were prepared to attempt to
9 settle for the purpose of the mediation scheme on
10 an entirely false basis, namely that set out at
11 paragraph 3.2:
12 "Post Office believe that the loss was due to theft
13 by the appellant."
14 Then we come to the equivalent document for
15 Ms Skinner. Second Sight case review report, dated
16 10 October 2014. Then again, the introductory section,
17 paragraph 1.5, we see the following issues raised by the
18 applicant:
19 (a) responsibility for direct losses that total in
20 excess of £59,000;
21 (b) adequacy of the training and support including
22 helpline audit; (c) limitations in the audit trail of
23 sub-postmasters; (d) Post Office investigations and
24 prosecutions processes; and (e) other consequential
25 losses not dealt with in this report but which may be
106
1 raised if the case progresses to mediation.
2 Again, citing issues similar or the same as issues
3 that have been traversed (Inaudible) in group litigation
4 and indeed in these proceedings; namely particular,
5 well, the role of the helpline, the fact that as we can
6 see from Mr Justice Fraser's judgment, the
7 sub-postmasters (Inaudible) various stains on the
8 investigations they themselves could conduct and flaws
9 and deficiencies in the Post Office's own investigates
10 and prosecutions.
11 We then get some more background facts. Section 3
12 and under the heading "Points of disagreement between
13 Post Office and sub-postmaster", 3.1:
14 "The applicant asserts that the losses were caused
15 by a fault in Horizon which occurred with the
16 introduction of monthly balancing. Post Office notes
17 that no faults related to Horizon were mentioned during
18 her tenure or at the investigation interview and that
19 instead the applicant stated that she suspected a member
20 of staff of stealing the money."
21 3.2:
22 "Disagreement on whether training and support
23 provided by Post Office to the applicant was adequate."
24 3.3:
25 "The applicant claims that the Post Office failed to
107
1 properly investigate the cause of the shortfalls. The
2 Post Office reports that the investigations would have
3 been unable to identify when and where the shortfalls
4 arose due to the fact that the applicant had manipulated
5 the accounts."
6 Then, taking the matter up at 4.3, under the heading
7 (Inaudible):
8 "Whether the disagreement is illogical and fully
9 evidenced opinion on the merits of that sub-postmaster's
10 complaint where it is possible to do so, it is recorded
11 again that the applicant argues that the causes of the
12 loss was not investigated, that the Horizon system was
13 never considered as a potential culprit. In her CQR she
14 states that 'I think the Post Office investigators
15 automatically assumed guilt', and goes on to say 'I
16 strongly feel that during the interviews the
17 investigators were aware of my court settlement and
18 assumed that I had taken the money from the Post Office
19 to pay off my husband, which was simply not the case'."
20 That again reflects a theme we have been discussing
21 during the course of these proceedings, namely the
22 so-called default position adopted by the Post Office,
23 namely that the only explanation for the shortfalls was
24 theft.
25 LORD JUSTICE HOLROYDE: Just going back to paragraph 3.3,
108
1 Ms Busch, can you assist at all in what is meant by
2 "Post Office reports the investigations would have been
3 unable to identify when and where the shortfalls arose
4 due to the fact that the applicants have manipulated the
5 (Inaudible)."
6 MS BUSCH: My Lord, yes, I assume that what is meant by that
7 is that in the false accounting issue, the attempt to
8 tally the account at the end of one training period and
9 at the beginning of the other, that that made it
10 impossible to identify, well, to identify the cause of
11 the shortfalls.
12 I have to say, it would be speculation on my part to
13 say whether that is correct or not but I should have
14 thought that the audit data would have dealt with that
15 problem. If I understand it, the audit data tracks
16 literally every time someone --
17 LORD JUSTICE HOLROYDE: That is really why I ask the
18 question, that a subsequent cover up may make it
19 difficult to work back to where it all began but my
20 understanding of the Horizon system was that it was
21 trained (Inaudible), because the fact is the evidence
22 was contemporaneously recorded. So if there had been
23 a minus balance which had then been shunted across to
24 a different section of the accounts, one might have
25 thought that would show up on investigation.
109
1 MS BUSCH: Precisely, and we have heard during the course of
2 these proceedings -- yesterday, in my learned friend
3 Mr Altman's submissions -- the perceived benefit by the
4 Post Office of Horizon was that it enabled fraudulent
5 activities, and presumably erroneous activity also, more
6 readily to be identified. Key to that must be the ARQ
7 data, which, as I said, tracks every entry into the
8 system.
9 So at the very least there is room for the doubt as
10 is to whether or not that remark in paragraph 3.3 is
11 correct.
12 LORD JUSTICE HOLROYDE: Thank you.
13 MS BUSCH: Then, finally on this one, 5.10, 671, we have the
14 Second Sight, the reviewer, saying:
15 "It is extremely disappointing that the possibility
16 that one of the branches' employees might have stolen
17 substantial funds, perhaps all of the missing
18 £55,000-odd, does not appear to have been thoroughly
19 investigated at the time. The inference, given that the
20 Post Office instigated a theft charge against the
21 applicant, which it dropped before trial when the
22 applicant pleaded not guilty to that theft charge but
23 guilty to the false accounting one, its investigators
24 have obtained sufficient evidence of the applicant's
25 guilt of theft but we have not yet seen that evidence.
110
1 This is because as a matter of policy the Post Office
2 will not allow us access to the relevant legal files."
3 Obviously the submission we make is that the
4 investigation that should have been untaken was an
5 investigation into Horizon, but the relevance in my
6 submission of that remark is that Second Sight
7 themselves took the view that a full and proper
8 investigation had not been conducted properly, and the
9 focus of their concern was the possibility that money
10 had been stolen by somebody else.
11 MR JUSTICE PICKEN: That indeed was their conclusion over
12 the page at 6.1(b)(?), why they said it was appropriate
13 for mediation.
14 MS BUSCH: Yes.
15 Again I make the same submissions, that the matter
16 was at the forefront of the Post Office's mind in 2014
17 for the purposes of a boosted mediation scheme and still
18 they were misleading, being misleading as to the true
19 position.
20 In Mrs Misra's case, finally, the case review report
21 dated 13 April 2015 starts at page 673. Then, again,
22 the issues raised by the applicant set out at 1.5,
23 responsibility for losses totaling in excess of £77,000,
24 anomalies associated with cash or stock remittances,
25 power failures, lottery terminals, scratch cards,
111
1 foreign currency, hardware issues, misadvice by
2 Post Office helpline, adequacy of training support,
3 including helpline audit, limitations in the audit trail
4 available to sub-postmasters, Post Office investigation
5 and prosecution processes, and then, again, other
6 consequential losses.
7 Then we have seen that Mrs Misra's case is one in
8 which she and her defence team actively sought
9 disclosure of the audit data and other material
10 (Inaudible) to Horizon, and then 3.4:
11 "In her CQR, the applicant says she believes that
12 figures on the system can be changed remotely by
13 the Post Office without my knowledge or authority.
14 Without the details, it is difficult to comment on this
15 assertion, but we do address the issue in our briefing
16 report part 2."
17 Of course we know now that that is in fact entirely
18 correct and yet again that did not come to light until
19 the group litigation.
20 3.6:
21 "In her CQR, the applicant says that as part of the
22 prosecution evidence against her, a named Fujitsu
23 employer produced evidence referring to a nationwide
24 problem with Horizon in 2006 and she questioned whether
25 that issue had had an impact on her branch. Difficult
112
1 to respond to such a broad statement."
2 This is commented on in paragraph 420 below, where
3 the Post Office's response is that the problem was
4 "a minor internal communications issue which was
5 resolved in March 2006".
6 So, again, that manifestly fails to tell the whole
7 truth about problems in the Horizon system. Then in
8 3.7, there is a reference to inadequate training and at
9 3.8:
10 "The applicant says she was surprised to find that
11 discrepancies occurred on each day of her on site
12 training, particularly because the trainer had watched
13 every transaction carried out that week. She says in
14 the second week, an unexplained shortfall of
15 approximately £200 occurred whilst balancing and the
16 trainer rang the helpline for assistance. She said the
17 trainer followed the helpline's instructions, which had
18 the effect of causing the shortfall to double, after
19 which the trainer told her 'We have to make the till
20 good now and we might get an error notice'. She says
21 this double of a loss also occurred on another
22 unspecified occasion in relation to a £2,000
23 discrepancy. The Post Office states there are no
24 records in the NBSC call logs of the call but the
25 applicant asserts ... made by the trainer and that, due
113
1 to the time that has elapsed, there are no transaction
2 logs available for the applicant's training period."
3 So yet another instance where there was independent
4 evidence available, such as, for example, the matter
5 concerning the Romec engineers which my learned friend
6 touched on, discrepancies in the account even when
7 Mrs Misra was being trained and being watched by,
8 presumably, a more experienced officer.
9 Then there is more detail set out at the following
10 paragraphs. Reiteration at 3.12, halfway down:
11 "The applicant says the fact that discrepancies
12 continued to occur after staff she thought might have
13 been stealing left led her to believe the losses were
14 caused by intrinsic flaws with Horizon and its
15 associated the processes. It is clear to us there were
16 indeed significant control and staff management issues
17 with the branch. I concur that the actions of the
18 unregistered staff may have contributed to overall
19 loss."
20 Then at 3.13, the record of the Post Office's
21 disagreement in essence with what the appellant was
22 saying.
23 Then 4.1, under the heading "Where there was
24 disagreement, a logical and fully evidenced opinion as
25 to the merits sub-postmaster's complaint where it is
114
1 possible to do so", the Post Office says the applicant
2 did not blame Horizon as being the cause of its losses
3 incurred at the branch prior to the commencement of her
4 trial. It goes on to -- it says:
5 "It is clear from the records that the applicant
6 made little or no attempt to impose controls on the
7 branch and staff operating."
8 It says in the initial months of her tenure, the
9 applicant admitted allowing existing staff to take
10 principal control of the branch but this ceased when she
11 suspected that more than one of the staff had been
12 stealing money. The Post Office says that the
13 applicant's false accounts made it difficult to
14 determine exactly when the losses arose -- a point we
15 touched on:
16 "... but there is conclusive evidence to suggest
17 that cash was deliberately removed from the branch and
18 the applicant concealed the mounting losses at the
19 branch but (Inaudible) value and overstating the cash
20 collection figures."
21 So, again, this is a fairly lengthy document but in
22 essence it is the same point, namely that the
23 reliability of Horizon was directly in issue, directly
24 raised by the applicant, as she had done at her trial;
25 consistent denial by the Post Office in the context of
115
1 what was due to be a mediation scheme and particularly
2 egregious, in my submission, attempts to blame the
3 applicant, the appellant, for the losses that were
4 incurred by accusing her not only of dishonesty but
5 also, in effect, of incompetence.
6 So, my Lord and my Lady, those matters form, I say,
7 the relevant factual background for these three
8 appellants in their category 2 case but, at the risk of
9 repeating myself, I simply reiterate that in all of the
10 circumstances, given the misleading effect which the
11 Post Office's conduct had on the courts, as well as on
12 the appellants, there is a clear category 2 case in
13 essence for the same reasons as the for the category 1
14 case.
15 MR JUSTICE PICKEN: Ms Busch, that was a case, I notice,
16 where Second Sight were not persuaded it was suitable
17 for mediation and the Post Office made it plain they
18 were not going to mediate anyway.
19 MS BUSCH: Yes.
20 I submit that those documents, again, compound the
21 misconduct on the part of the Post Office at every
22 stage, given every opportunity to be transparent about
23 what the situation in fact was, and they resolutely
24 refused to do so and maintained their insistence that
25 the relevant sub-postmaster was to blame and they did so
116
1 both in court proceedings and in documents that could
2 potentially be highly relevant to the resolution of the
3 issue between itself and the appellants.
4 So, my Lords and my Lady, those are my submissions
5 as regards the specific cases and the specific category
6 2 case.
7 LORD JUSTICE HOLROYDE: Thank you very much indeed,
8 Ms Busch.
9 Mr Stein.
10 Submissions by MR STEIN
11 MR STEIN: My Lord, we are grateful for the submissions that
12 have been made before us that deal with the overall
13 position. May we try to provide some small further
14 assistance in describing the situation that affects both
15 category 1 and 2 in this way.
16 For those five appellants overall -- obviously we
17 are dealing with the individual case of Mr Fell at
18 a later stage -- this is an appeal whereby the extent of
19 the prosecution failures in disclosure is the starting
20 point. That is number 1. Then the number of times that
21 failure is repeated, number 2.
22 Over the number of years in which that behaviour was
23 exhibited by the Post Office, number 3. And number 4 is
24 the years of denials that followed, right the way
25 through to 2019 through the civil proceedings.
117
1 Those four points, when you add them together,
2 therefore, we suggest, are significant in turning this
3 from a single failure of disclosure in an individual
4 case of the type that we have seen many times in our
5 practices and before this court, into the manifest
6 demonstration of limb 2 abuse across all appellants.
7 It is aggravated, we suggest, by the victims of
8 these failures over these years, who are all of positive
9 good character and many of whom had worked for decades
10 for the Post Office and for their communities.
11 And we suggest that that is not one of the 1 to 4
12 categories but it is an aggravating feature of
13 this abuse.
14 Mr Orrett and I are instructed by Edward Fail,
15 Bradshaw and Waterton in relation to five appellants.
16 We will be dealing with these submissions in order of
17 time. First of all we will go to the appeal grounds on
18 behalf of Pamela Lock, who, for the court's information,
19 as far as we are aware is the very first in order of
20 time, in 2001.
21 Later on and separately we will be dealing with
22 Mr Fell's position, and we will then move on to
23 Mr Holmes, deceased, who is represented by his wife,
24 Marion Holmes.
25 We will then deal with Scott Darlington in 2010 and
118
1 lastly with Rubina Shaheen. Again, 2010, later on.
2 May we take note and ask this court to take note of
3 the position of Pamela Lock. Convicted so long ago, not
4 long after the Horizon system was put into place. And
5 one of the effects of the failures over so many years
6 over so long is that there is no material. This is
7 an effect that applies to her case and others, as we
8 will discuss later on with Mr Fell.
9 So one of the effects of the Post Office's failings
10 has been that we are now, in 2021, having to look back
11 in time at cases whereby, because of the denials,
12 because of the failures, the papers don't exist. Nor do
13 we have the ability, as we have discussed at earlier
14 hearings, to instruct an expert to consider any of the
15 Horizon material.
16 So an effect of this behaviour has been not only to
17 have denied advocates, solicitors, barristers, defence
18 lawyers, prosecutors, courts and judges with material
19 that they should have to consider a case, but later to
20 consider it in an appeal, you are denied the opportunity
21 of having, in many cases, the ability to investigate the
22 background material that might exist.
23 Again, we suggest, an aggravating feature.
24 The overall position of the respondents is set out
25 in bundle A, respondent's notice, page 1149, paragraphs
119
1 2 and 3.
2 "The respondent accepts the finding by
3 Mr Justice Fraser that there was a significant and
4 material risk on occasion of branch accounts being
5 affected in the way alleged by the claimants by bugs,
6 errors and defects. It is accepted that POL failed to
7 disclose to SPMs and to the courts the full and accurate
8 position in relation to the reliability of the
9 Horizon system."
10 And we know that, as an example, SPMs,
11 sub-postmasters and mistresses, were not given the
12 benefit of something like an update from the Post Office
13 during their time. There was no weekly bug alert or the
14 latest Horizon bug issue in a newsletter.
15 That has led to the reason why, in our earlier
16 submissions, we asked you to look at the generic
17 reviews, because you can see the effect of this on
18 perfectly honest ordinary people of many years' service.
19 I read only one, page 780 of bundle C:
20 "I did not find the helpline useful. I was
21 generally advised to accept discrepancies in order to
22 roll over the branch operation for the next week,
23 starting Thursday to Wednesday, put back shortfalls, and
24 if discrepancies occurred during the other working days,
25 to wait until Wednesday to report it, as it could
120
1 resolve itself by then."
2 She went on to say:
3 "I would estimate that throughout my position in the
4 branch I paid or Post Office deducted in excess of
5 £6,000."
6 Then over the page at 781:
7 "I did not want to plead guilty but felt I had no
8 other choice. I said that I took £50,000 from the
9 accounts in three instalments, one of £10,000, two of
10 £20,000, in order to pay back a loan that I had taken
11 from a relative. This was not true. I was told by the
12 Post Office, however, that if I accepted responsibility
13 and was able to pay it back then the case would not be
14 taken any further. Something which did not prove to
15 be true."
16 LORD JUSTICE HOLROYDE: Do we know who this relates to? It
17 is not the appellants?
18 MR STEIN: No, it was a case being dealt with in the
19 Magistrates' Court in appeal to the Crown Court. I have
20 the name but I don't know whether I have permission to
21 refer to it.
22 LORD JUSTICE HOLROYDE: That case had been dealt with.
23 MR STEIN: I believe so.
24 The point we make and the point by reference to
25 generic reviews and comments made by individuals is that
121
1 perfectly ordinary respectable people, such as
2 Ms Lock -- and obviously we will turn later to
3 Mr Fell -- and Mr Holmes and Mr Darlington and
4 Ms Shaheen were left in a position whereby they were
5 bewildered by what was going on, had no answer to it, no
6 explanation, and they had to deal with an investigation
7 concerning their behaviour.
8 So we turn to Ms Lock. Bundle A, and I think it is
9 the second file of bundle A, page 1576.
10 Page 1576. Ms Lock's is one of the cases, and it is
11 the earliest case, we believe, whereby there are no
12 papers. So my remark earlier on about the delays and
13 denials over many years have caused significant
14 difficulty to such cases.
15 Ms Lock was indicted on a single count of false
16 accounting, to which she pleaded guilty back
17 in November 2001. It is a case whereby the respondents
18 accept category 1 abuse of process.
19 My Lord can see that again she is one of those
20 appellants who had spent many years, 26 years, working
21 in the Post Office with her husband. She complains that
22 in January 2000 the Horizon system was installed, and
23 the appellant received only an hour and a half's
24 training in it. My Lord will recall from having read
25 the judgments of Mr Justice Fraser that training was
122
1 a matter that he reviewed and considered.
2 Mrs Lock's position was this. Paragraph 8:
3 When the shortfalls arose, the appellant would ring
4 the helpline. And they would make various suggestions,
5 but none of these would work. And the losses got bigger
6 every week. She didn't know what to do.
7 And as a result, this lady who had worked as
8 a postmistress with her husband for so many years, like
9 so many others felt she needed to inflate the cash on
10 hand figures in the branch accounts to balance the books
11 so that she could keep on trading.
12 That then led until July 2000 when the Post Office
13 did an audit which showed a shortfall of £26,000.
14 Paragraph 10:
15 Ms Lock was prosecuted by the Post Office in
16 connection with a branch shortfall of £26,000.
17 Paragraph 11:
18 She denied having stolen any money but admitted that
19 she had inflated the figures in the branch accounts to
20 cover apparent shortfalls.
21 So like so many other individuals in her position,
22 a perfectly respectable, honest person is seeking to do
23 their best in a situation whereby they feel as though
24 they have no choice.
25 My Lord, we set out at paragraph 20 the nature of
123
1 the case, describing it at (i) to (vi) as an unexplained
2 shortfall case. No investigation. No data obtained.
3 No investigation into the integrity of the figures. No
4 proof of actual loss. And so on.
5 We have mentioned what we suggest is an aggravating
6 feature of the abuse and that is the reason why we
7 venture to discuss briefly the personal effect upon
8 the appellant.
9 It was, quite simply, devastating. She lost her
10 good character and good standing in the community. She
11 and her husband were left with huge utility and mortgage
12 debts. She was forced into early retirement. Forced to
13 sell the family home. Without capital to take matters
14 further with her husband, she and her husband had to
15 rely on upon the state to provide social housing. She
16 suffered depression, which went on for some considerable
17 time, for which she took medication.
18 She believes that the effect of the treatment that
19 had been meted out upon her exacerbated the already
20 existing issues of her husband, leading to stress ulcers
21 and worsening of his diabetes. And he died at the age
22 of 67.
23 This led to difficulties within her family,
24 a difficulty in providing physical and emotional support
25 to her daughter during her divorce, and her son. And
124
1 that was at particularly stressful times as he needed
2 multiple admissions for surgery.
3 Ms Lock is one of the many cases, therefore,
4 affected in this way. But significantly for her, of
5 course, one of the earliest cases and left unresolved
6 until, I suppose, learning first of all of the judgments
7 by Mr Justice Fraser in the way that he dealt with
8 matters and then finally the concessions made on behalf
9 of the Post Office in these proceedings.
10 MR JUSTICE PICKEN: Mr Stein, can I just ask you --
11 MR STEIN: My Lord.
12 MR JUSTICE PICKEN: Paragraph 29 on this refers to the
13 compensation received as a result of the
14 group litigation.
15 MR STEIN: Yes, my Lord.
16 MR JUSTICE PICKEN: But makes the point that that is
17 slightly more than the amount that she was obliged to
18 repay to the Post Office.
19 MR STEIN: Yes, my Lord.
20 MR JUSTICE PICKEN: It may be territory that you either
21 don't want to go into or cannot go into, I just don't
22 know. But is the amount that had to be repaid something
23 which is expected to be forthcoming or was that wrapped
24 up in the compensation that she received?
25 MR STEIN: My Lord, rather than making a mistake, would you
125
1 forgive me if I don't answer that question directly and
2 checked the facts and then either send it back by way of
3 a message or agree it between the parties?
4 MR JUSTICE PICKEN: You may prefer not to, in which case
5 that is fine too.
6 MR STEIN: I am very grateful.
7 Can I then turn, please, to Mr Holmes.
8 LORD JUSTICE HOLROYDE: Before you do so, going back,
9 please, to paragraph 8 of the grounds of appeal relating
10 to this lady, when the shortfalls arose she called the
11 helpline suggesting there were losses which got bigger
12 every week. I appreciate there are not any documents,
13 but do your instructions indicate one way or the other
14 whether that was a matter that featured in the
15 trial papers?
16 MR STEIN: My Lord, again, rather than erring, I am old
17 enough and have been around long enough not to make that
18 mistake. Would you forgive me if we return to that
19 matter perhaps either later today or tomorrow?
20 LORD JUSTICE HOLROYDE: Yes. In particular, if there are
21 any instructions -- and I appreciate it is decades ago,
22 but on the face of it, she rings in one week, is given
23 some advice, and the result is a bigger discrepancy. So
24 one might think that the next call, the question of the
25 helpline, would be (Inaudible) that all that happened is
126
1 the lost (Inaudible) and so on.
2 So the question really is whether we know one way or
3 the other whether anything about that appeared in the
4 case papers.
5 MR STEIN: My Lord, we will endeavour to find out
6 the answer.
7 Again, it is a reason why we referred to the generic
8 reviews, because such problems were repeated throughout
9 many people's claims and many people's difficulties.
10 And you have asked at various times, of all of us, well,
11 what notice was given to the Post Office of the
12 problems. And in the generic review we have seen many
13 times many people saying that they phoned up the
14 helpline and they got nowhere. And yet the helpline
15 must have been informed what was going on.
16 So in that sense, there has been that feed into the
17 Post Office, which we suggest was ignored.
18 LORD JUSTICE HOLROYDE: Yes.
19 MR STEIN: I turn to Mr Holmes' position. Mr Holmes died
20 in October of 2015. He appears by way of his partner,
21 his wife, Marion Holmes. Again, a case in which it is
22 accepted that there were clear failures in disclosure.
23 Paragraph 3, page 1593 -- sorry, my Lord, I should have
24 referred to the page number. I am not sure I did.
25 Page 1592 is the start and page 1593 is the page I am
127
1 about to refer to.
2 Paragraph 3: in interview, Mr Holmes said that he
3 had no idea why there was a discrepancy, unless it is
4 the Horizon that has let us down.
5 He denied theft but accepted that he had been
6 covering up a shortfall. And on one or two occasions he
7 had put about £200 in from his own bank account, and he
8 had never taken any money. He said he hoped it was
9 something the computer was responsible for and that he
10 would receive an error notice.
11 My Lord, you will recall that my learned friend
12 Mr Altman referred to the position of managers, and
13 placed Mr Holmes, correctly, within that number.
14 LORD JUSTICE HOLROYDE: Yes.
15 MR STEIN: His work as a manager was discussed in his
16 interviews. And my Lord, the interview reference within
17 the bundle for those that would wish to go to it is
18 171/000097.
19 My Lord, again, if you wish to have the document, we
20 will obviously provide it for you either later today
21 or tomorrow.
22 During this interview process, which took place on
23 19 September 2008, Mr Holmes is asked a number of
24 questions by Robert Daley who is conducting the
25 interview process.
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1 Page 10 of the document:
2 "Who is the sub-postmaster", Mr Holmes was asked.
3 The reply was "Sunil Khan". And then he was asked
4 "And what does Sunil Khan do in the office?" And
5 Mr Holmes said "nothing". "Is the sub-postmaster, does
6 he, is he on the Horizon system?" Mr Holmes said, "No."
7 Asked the next question, "No. Does he ever serve
8 any customers?" Peter Holmes said, "No". He was asked
9 whether Mr Khan deals with the balance. "No."
10 Mr Daley, asking the questions, summarises the
11 position, "So basically he is a sub-postmaster in
12 name only?"
13 "Yes."
14 He then describes his own position as being the
15 office manager dealing with all aspects and matters,
16 balancing, reconciling the accounts and so on, dealing
17 with the staff members, the entire run of the work
18 within the Post Office.
19 So where Mr Holmes is saying, as we set it out in
20 paragraph 3, that it is Horizon that let us down,
21 despite the fact that he is a manager, he is in exactly
22 the same position as a sub-postmaster.
23 He demonstrates that by what he explained was his
24 own actions, that he had been covering up the shortfall,
25 dipping into his own pocket on occasions. It is of some
129
1 interest that an attempt was made by the Post Office
2 before Lord Justice Coulson, at page 865 of bundle A --
3 so this is the judgment on 12 November 2019. This is
4 taken by the Post Office as against the group litigants,
5 and various particular points are being argued on behalf
6 of the Post Office. I will probably get my civil
7 litigation wrong but essentially it is an appeal.
8 LORD JUSTICE HOLROYDE: I think it is the oral application
9 for permission to appeal.
10 MR STEIN: That is exactly the way I would have put it,
11 my Lord, yes.
12 The point that is being dealt with by Lord
13 Justice Coulson is in relation to the various grounds
14 set out. Paragraph 112, page 864 is the construction of
15 section 12, clause 12 of the contract.
16 This had been part of the struggle during the civil
17 litigation, how should this be interpreted? Should it
18 in fact be interpreted so that sub-postmasters are
19 liable for all losses come what may? And so on.
20 A subject that was debated at some length during the
21 civil litigation.
22 Ground 26, assistance. So this would be Mr Holmes'
23 position, not being the sub-postmaster.
24 I quote from Lord Justice Coulson:
25 "The complaint here is that the judge erred in
130
1 construing the clause as imposing a need for negligence,
2 carelessness or error on the SPM, sub-postmaster, or
3 their assistants. The argument appears to be that in
4 some way any loss traceable back to an assistant created
5 a strict liability on the part of the SPM without the
6 need for the Post Office to show negligence,
7 carelessness or error. In other words, an act or
8 omission of a third party, the assistant, put the SPM in
9 a worse position than if the SPM had done or failed to
10 do the act himself/herself.
11 "Again, like the judge, I consider that to
12 be unarguable."
13 We agree. So Mr Holmes in his position was left
14 subject to all of the responsibilities throughout
15 imposed upon any sub-postmaster throughout the time of
16 their having -- or being seized of the contract.
17 In interview, paragraph 8 of the grounds, Mr Holmes
18 stated that neither he nor his staff had taken any money
19 and believed that faults in Horizon might have been to
20 blame for the shortfall. He referred to various
21 problems that he had in early 2008 with the
22 Horizon system.
23 The prosecution of this appellant for false
24 accounting was in connection with an apparent branch
25 shortfall of £46,000. Mr Holmes had been employed in
131
1 his position for over 13 years at the Post Office. He
2 had served prior to that for 12 years as
3 a police officer.
4 This affected him and his family deeply. As we put
5 it within the grounds, the conviction at the age of 68
6 resulted in the appellant having a sense of normality
7 removed as his ability to become employed became
8 depleted significantly. His later years were spent
9 largely at home whilst his wife worked long hours in her
10 business, delaying her retirement. The sort of work
11 that he might otherwise have been allowed to do within
12 the community was denied to him. He wasn't able to
13 volunteer in the community as a driver for a cancer
14 charity because of his conviction. The appellant died
15 of a brain tumour, as we know, in 2015. And in the
16 years leading up to this, following his conviction, he
17 became depressed and withdrawn.
18 One matter that was pressed upon us when we
19 undertook the case for Mr Holmes, Marion Holmes -- and
20 perhaps I am not so hard bitten as civil lawyers might
21 think a criminal lawyer would be. It does affect us.
22 Marion Holmes wanted as a principal point to have her
23 husband's name cleared in the press. I quote:
24 "All he wanted, for the rest of his life, was to
25 prove that he was innocent and have it reported in the
132
1 paper that he was innocent."
2 In fact the local paper that had reported his
3 conviction has reported that his appeal is
4 not challenged.
5 May I then turn, please, to Scott Darlington. We
6 are now moving through in the number of appellants that
7 we represent, myself and Mr Orrett, through to 2010. It
8 is an emphasis on how long and how extended the period
9 of time we are considering is being dealt with before
10 this court and the repeated number of failures over so
11 many years. Page 1602 of bundle A. Page 162, bundle A.
12 Mr Darlington was indicted on five counts of false
13 accounting, to which he pleaded guilty in February 2010.
14 When auditors, paragraph 3, arrived at his branch, he
15 admitted to having inflated cash figures. He explained
16 that he had added false figures to the amounts of £20
17 and £10 notes held over a six-month period, but denied
18 he had stolen any money.
19 He referred to having experienced unexplained
20 losses, which one week increased by £16,000. He stated
21 that there was nothing to explain the apparent
22 shortages. Paragraph 4:
23 "At the trial, the defence requested a Newton
24 hearing, arguing that the false accounting had caused no
25 loss to POL as the apparent shortfall had been caused by
133
1 Horizon faults. The judge decided against a Newton
2 hearing, sentencing on the basis that no loss had
3 been occasioned."
4 So we see in his particular case a direct effect
5 upon the actual working of the proceedings. We add that
6 if the truth had been known, an application would either
7 have been made, as I call it a loosely(?) application to
8 exclude evidence because of the (Inaudible) the
9 background to it, or a more simple application perhaps
10 to stay the proceedings, has essentially the heart of
11 this -- there was every chance it was caused by the
12 Horizon system errors and faults. But instead the court
13 was left having to grapple with the problems and the
14 consequences of the failure of disclosure and it dealt
15 with it that way.
16 Again, this was an unexplained shortfall case.
17 There was no proof of actual loss. It is an irony,
18 considering we are concerned with a system that is meant
19 to account for money, that actually the Horizon system
20 was inventing money at times, and people were being
21 dealt with for money that never existed.
22 The personal effect on the appellant was profound.
23 The conviction reported in the press destroyed the
24 appellant's reputation within his local community. As
25 we will all understand, in particular with the many
134
1 customers with whom he had built up a good relationship
2 whilst working at the Post Office. It left him unable
3 to work for three and a half years. It left him unable
4 to look after his family and care for his daughter in
5 the way he would have liked to.
6 It left him suffering from anxiety. He, like so
7 many others, was then involved in the entire process of
8 trying to get recognition of these failures of Horizon
9 in the campaigns that eventually led to the group
10 litigation and the judgments of Mr Justice Fraser, which
11 I put under aggravating features heading as a result of
12 the abuse.
13 I turn lastly to the remaining appellant we
14 represent outside of Mr Fell, Rubina Shaheen. Page 1597
15 of bundle A.
16 Ms Shaheen was charged with one count of theft and
17 one count of fraud by way of false reputation. The
18 alleged shortfall was £43,269.
19 Paragraph 3:
20 "Ms Shaheen experienced large losses and gains from
21 the start of her tenure as a sub-postmistress, which she
22 settled centrally each month. The Post Office
23 intervened and informed the appellant that she had been
24 incorrectly adjusting stock. This was corrected, and
25 she agreed to pay losses of £8,000. But she still made
135
1 a number of calls to the helpline thereafter.
2 Complaints were then made by customers about
3 shortages of cash at the branch, and a significant
4 shortfall came to light. An audit revealed a £43,000
5 shortage of cash on hand. She admitted inflating cash
6 figures and she suggested that the shortfall could have
7 been of differences in cash rem'd in and cash rem'd out.
8 Before Ms Shaheen worked at the Greenfield
9 Post Office, she had worked for the Department of Work
10 and Pensions. She was a hardworking, energetic person.
11 Her life, as we have seen here and we submit was
12 shattered by the Post Office. This led to endless
13 sleepless nights, panic attacks, and she felt suicidal.
14 She went to prison for 12 months. She served
15 three months of that sentence and spent a further
16 three months on electronic tag.
17 The business and home were auctioned off. Her
18 husband wrestled with his mental health. After being
19 released from prison the appellant and her husband slept
20 in a van for six weeks. A Mr Sheraton(?) found them in
21 the van and provided them with a roof over their heads.
22 She has been diagnosed with some problems with her
23 kidneys and she is on dialysis from 2013. She believes
24 that her life and her health have been ruined by the
25 Post Office. She, like so many of the others we have
136
1 referred to, but so many of the others in the appeals,
2 then spent so long campaigning, being part of the group
3 litigation in terms of supporting it, interviewed by the
4 press, in seeking to publicise her position and her
5 plight and that of so many others.
6 Again, through such a long period of time, leading
7 only until we reach the civil litigation and later on
8 the acceptance in hers and so many other cases of fault
9 by the respondents.
10 For her that was ten years. But for her it has also
11 ruined her life.
12 So in summary, my Lords, we see through the
13 appellants that we represent, obviously fewer than that
14 represented by my learned friends, but we do see over
15 those many years, those ten years, what has happened to
16 them and the effect upon them. And we do suggest that
17 the effect upon good, hardworking people of positive
18 good character is a significant aggravating feature in
19 these cases. Not of its own sufficient to take it
20 perhaps into limb 2 but, based upon the sheer repetition
21 of behaviour over so many years, it certainly aggravates
22 the position.
23 My Lord, those are our submissions on behalf of
24 those four appellants, unless I can assist further.
25 LORD JUSTICE HOLROYDE: Thank you very much, Mr Stein.
137
1 Now, next, I think, in the order is Mr Smith.
2 Submissions by MR SMITH
3 MR SMITH: My Lords and my Lady, before the proceedings and
4 the unfair proceedings which led to the conviction of
5 Mr Parekh, he was a man of positive good character. He
6 was a well-respected and upstanding member of his
7 community. This is reflected in the fact that he had at
8 least 13 character references when he was sentenced.
9 His conviction meant that he had to resign as the
10 longstanding president of a community charitable
11 organisation working for the Gujarati community in the
12 United Kingdom.
13 His conviction led to financial ruin, bankruptcy,
14 which has passed a significant financial burden on to
15 his wife and family. He has suffered serious physical
16 and mental health issues, and his daughter describes,
17 through me, the pain of observing the real loss of self
18 confidence in him, resulting from the conviction.
19 The publicity of his conviction led to an acute
20 sense of shame and embarrassment to him, not only on
21 behalf of himself but on behalf of his family. His
22 personal friendships were affected by it.
23 So when the court comes to consider whether or not
24 the conduct of the prosecutor has brought the criminal
25 justice system into disrepute, the court may wish to
138
1 bear those points in mind.
2 My Lords and my Lady, Mr Parekh was charged with
3 theft. And as the grounds of appeal concerned failures
4 of investigation and failures of disclosure, it may be
5 appropriate to begin by making it clear to the court
6 what the issues in his case were. To that end I would
7 refer you to his defence statement, the relevant parts
8 of which are replicated in his grounds, at bundle A,
9 tab 46, page 1833.
10 LORD JUSTICE HOLROYDE: Yes, thank you.
11 MR SMITH: Paragraph 23. Mr Parekh denies an intention to
12 gain(?) in his interview. He maintains a not guilty
13 plea to a charge of theft until shortly before his
14 trial. And in his defence statement, which is perhaps
15 the most important document, dated 17 February 2010, he
16 took issue with the taking of the money. He denies
17 dishonesty. Further on, importantly, it reads:
18 "The defendant states that some of the 74,000-odd
19 may have been missing as a result of technical faults
20 with the Horizon system at the Post Office. But he
21 disputes the amount."
22 So there could be no question that Horizon, and the
23 integrity of Horizon, was in issue in his trial. And
24 there was a duty on the prosecutor to investigate that
25 and to disclose any information within its control which
139
1 supported that defence.
2 Given that Horizon was essential to his conviction
3 in any event, I could submit that those duties would be
4 present anyway. But in Mr Parekh's case there was
5 a clear defence statement which made that duty on the
6 prosecutor clear.
7 My Lords and my Lady, you then consider the
8 respondent's notice and concessions made, which are
9 similar to those for other appellants. That is at
10 bundle A, tab 4, page 1178 for Mr Parekh. The
11 concessions begin at page 1179.
12 At paragraph 8 of that document, the respondent
13 accepts that the reliability of Horizon data was
14 essential to the prosecution and to the conviction of
15 the appellant. The latter concession, my Lords and my
16 Lady, obviously being relevant to the statutory test to
17 be applied by this court.
18 It then goes on, paragraph 8(i):
19 This was an unexplained shortfall case. There is
20 the possibility but no confirmation as to analysis,
21 serving or disclosure. The ARQ data. You will find
22 that the appellant raised problems about unexplained
23 shortfalls. And crucially, (vi) and (vii), there was no
24 investigation into the appellant's interview account and
25 there was no investigation into the root causes of
140
1 the shortfalls.
2 My Lords and my Lady, to not investigate
3 a reasonable line of inquiry and to not serve proper
4 disclosure are clear derelictions of a prosecutor's
5 duty. In my submission, if the dereliction of
6 prosecutorial duties is part of a systematic pattern of
7 conduct, and those dereliction of duties are serious,
8 that alone is sufficient to amount to a limb 2
9 type abuse.
10 However, my submissions go further than that, and at
11 least in the case of Mr Parekh, I submit that the
12 dereliction of duty was either deliberate or, if the
13 court felt unable to reach such a conclusion, at least
14 conscious on the part of the prosecutor.
15 There are three documents which I submit are the
16 best evidence of this. They are documents that the
17 court is familiar with. But the best, in my submission,
18 is the Ishmael report, bundle C, tab 3, and it begins on
19 page 8. The relevant passage -- and the court has
20 already been drawn to this document, is at page 26.
21 This is the respondent's reaction to a series of
22 publicity and challenges to Horizon and the integrity of
23 Horizon. And at page 26 of that document which is
24 behind tab 3 in bundle C the respondent considered the
25 merits of an independent review.
141
1 "POL has actively considered the merits of
2 an independent review. This has been purely from the
3 perspective that we believe in Horizon and that this
4 review could give others the same confidence that
5 we have."
6 Then over the page at page 26 at the top:
7 "It is important to be crystal clear about any
8 review if one were to be commissioned. Any
9 investigation would need to be disclosed in court.
10 Although it would be dealing with the review ...(Reading
11 to the words)... any perception that POL doubts its own
12 system would mean that all criminal prosecutions would
13 have to be stayed. It would also beg the question in
14 the Court of Appeal over past prosecutions and
15 imprisonments."
16 That question is now before the Court of Appeal.
17 My Lords, importantly, that document is
18 dated August 2010 and predates Mr Parekh's trial. So
19 there can be no question but that the respondent was on
20 notice of the Horizon issues and it deliberately did not
21 investigate, I submit, those issues in Mr Parekh's case,
22 or it was consciously not doing so.
23 The fact that the respondent knew that an
24 investigation into Horizon would affect prosecution
25 cases is also clear in the receipts and payments
142
1 mismatch issue notes. These are documents which were
2 troubling to Mr Justice Fraser, who in the relevant
3 passage of the judgment was acutely aware of the
4 respondent's duties as a prosecutor notwithstanding that
5 that was not central to the issues he had to determine.
6 That document features in his judgment. It is
7 quoted in the judgment. For the court's note it is
8 bundle C, tab 2, pages 3 and 4, where the impact on
9 legal cases is noted.
10 Again, that document predates Mr Parekh's trial. So
11 there can be no question that the respondent was on
12 notice of these issues.
13 My Lords and my Lady, there is also the email sent
14 to Rob Wilson at bundle C, tab 5, page 48, in which
15 Alan Simpson raises a concern about the proposed
16 solution to Horizon bugs, which "may have repercussions
17 in any future prosecution cases." This is sent to
18 Rob Wilson, head of criminal law at the respondent. And
19 when that email was sent, Mr Parekh's trial had not yet
20 taken place.
21 So his was one of those prosecution cases, I submit,
22 that could be affected. I anticipate that Mr Altman
23 will say the mismatch notes and email concerned bugs in
24 Horizon Online. And it is correct that Mr Parekh's
25 timing means that it was Legacy Horizon which was the
143
1 system he was operating with. But in my submission that
2 is no assistance if we are looking at the simple fact
3 that the respondent was on notice to Horizon issues and
4 did not investigate them.
5 LORD JUSTICE HOLROYDE: The Mr Wilson to whom the email is
6 addressed, is the Mr Wilson in divider 3, the Ishmael
7 report, one of the people to whom that was copied?
8 MR SMITH: I believe so.
9 My Lords and my Lady, in my skeleton argument there
10 are other documents which point to the prosecution being
11 on notice as to the Horizon issues, but there are none
12 better than these three documents. And although it may
13 not be essential to the appeal to make the chronology
14 points, if it is, then I do make it. These predate
15 Mr Parekh's -- when he was due to stand trial, and
16 therefore are relevant.
17 LORD JUSTICE HOLROYDE: On the figures we were given
18 yesterday, which I know are to be checked further, but
19 roughly speaking it was a prosecution a week, wasn't it?
20 So this appellant was next week's trial, effectively.
21 MR SMITH: Of course, my Lord and my Lady may know that his
22 trial postdates -- the trial listing postdated that of
23 Seema Misra, with the trial having been conducted with
24 Horizon and the integrity of Horizon being in issue.
25 We know from the Ishmael report that the prosecutor
144
1 was conscious that if it looked into this issue it had
2 to stay the proceedings. And it consciously did not
3 do so.
4 In remarks to this court, I believe on Monday,
5 Mr Altman tried to justify the respondent's actions in
6 relation to Mr Parekh by reference to his interview and
7 what he said in his interview. However, my Lords and my
8 Lady, I fully accept that when he was interviewed about
9 the shortfall, that may have warranted an investigation
10 into him. But as is accepted by the respondents, no
11 such investigation into his interview account took
12 place. This is not a case, I submit, where the conduct
13 of the prosecutor can be excused by any of the conduct
14 of the accused.
15 This is especially so given that we are looking at
16 serious derelictions of prosecutorial duties.
17 My Lords and my Lady, for those reasons I submit
18 that (inaudible word) is established in this case.
19 LORD JUSTICE HOLROYDE: Thank you very much.
20 Now, I am not sure if Mr Gordon will be intending to
21 add to what he said yesterday.
22 THE CLERK OF THE COURT: Mr Gordon is not with us, my Lord.
23 MR SMITH: Nor is Mr Saxby.
24 LORD JUSTICE HOLROYDE: So I think we continue with you,
25 Mr Altman. I hope we have not missed anybody.
145
1 MR ALTMAN: I don't think you have, my Lord.
2 My Lord, I am going to make, if I may, six general
3 observations rather than particular ones, which we
4 submit apply to them all.
5 First of all, Post Office has accepted the numerous
6 significant findings, the judicial findings of
7 Mr Justice Fraser in both the judgments, and that much
8 is clear from the references which have been made to
9 part 1 of the respondent's notices.
10 Second, and importantly, Post Office is not seeking
11 to dispute any aspects of Mr Justice Fraser's
12 judicial findings.
13 Third, the CCRC have conducted the investigations in
14 these cases leading to the references which the CCRC has
15 made. The Post Office has not sought to go behind those
16 investigations by making further investigations of
17 its own.
18 Fourth, to do so would also risk undermining
19 Mr Justice Fraser's judgments, which Post Office has no
20 desire to do.
21 Fifth, what we have done, however, is to embark on
22 a post-conviction disclosure exercise of almost
23 unprecedented proportions in order to enable the
24 appellants to be placed in a position where they have
25 been able to make the very arguments before this court
146
1 that they have been making.
2 Sixth, and finally, we as counsel on behalf of the
3 Post Office have placed before the court what we have
4 submitted are points and arguments regarding the legal
5 approach to second category abuse of process.
6 But given the very clear public interest in these
7 appeals, which this court has stated before and with
8 which we agree, our approach is that the determination
9 whether or not these prosecutions leading to these
10 convictions amounted to an affront to the public
11 conscience as to render them limb 2 unsafe, which is
12 a matter for this court to judge.
13 That is all we are proposing to say on the balance
14 of the arguments you have heard this afternoon and
15 this morning.
16 LORD JUSTICE HOLROYDE: Thank you very much indeed.
17 Well, that, I think, brings us, then, at any rate,
18 to the point at which we would embark upon hearing the
19 three contested pleadings, of which (Inaudible)
20 Mr Stein.
21 Are you in a position to start for 10 or 15 minutes
22 or would you prefer to leave it till tomorrow?
23 MR STEIN: Would you mind if we left it until tomorrow? One
24 of the reasons for saying that is that I know Mr Fell is
25 assisted by his daughter in using the laptop and making
147
1 sure he has access. And I want to make sure that that
2 is consistently available to him tomorrow. So I will
3 not finish it today.
4 LORD JUSTICE HOLROYDE: Can we just think about the overall
5 timetable, then.
6 MR STEIN: Of course.
7 LORD JUSTICE HOLROYDE: How long do you think you are going
8 to be?
9 MR STEIN: Well, assisted by our speaking note, we hope to
10 keep things a little shorter. Our estimate -- and
11 I spoke to Mr Altman about this -- is an hour, possibly
12 an hour and a quarter.
13 LORD JUSTICE HOLROYDE: Is that just your side?
14 MR STEIN: No, between us.
15 LORD JUSTICE HOLROYDE: Thank you.
16 And then Ms O'Reilly, Mr Moloney --
17 MR MOLONEY: My submissions would be no more than 30
18 minutes. I want to be careful, but no more than about
19 30 minutes.
20 LORD JUSTICE HOLROYDE: All right. Thank you.
21 And then I don't know whether Mr Millington is with
22 us remotely.
23 THE CLERK OF THE COURT: My Lord, I have been approached by
24 the counsel for Ms Hussain asking if in consideration of
25 the hearing of tomorrow, whether the case of Hussain
148
1 could be heard on Friday. I know the two of them are to
2 be on the link listening, Mr Millington and Ms Biset(?).
3 MR ALTMAN: My Lord, Ms Johnson, who is going to take
4 Cousins, she is not unconfident (Inaudible) clear about
5 the incident, feels that we could probably get through
6 all three in one day.
7 LORD JUSTICE HOLROYDE: I must say that is our thought. At
8 the moment -- and I imagine Mr Millington is able to
9 hear us, and he is very welcome to address us if he
10 wishes to -- at the moment we cannot see why that part
11 of the hearing shouldn't just follow the other two
12 contested appeals tomorrow.
13 MR ALTMAN: Yes.
14 LORD JUSTICE HOLROYDE: Mr Millington, I am sort of, as it
15 were, speaking into the void. Is there anything you
16 want to say?
17 MR MILLINGTON: My Lord, I made the enquiry earlier on this
18 afternoon and saw that the timetable was not proceeding
19 as quickly as it might have done. And I didn't want to
20 commit to coming all the way to London from where I am,
21 up here in the sticks, if there was no real prospect of
22 getting on with my appeal. But it speeded up
23 remarkably, and I am quite content to come tomorrow,
24 my Lord, in the hope that at some point in the afternoon
25 we can conclude my part in the proceedings.
149
1 LORD JUSTICE HOLROYDE: Well, Mr Millington, that is
2 helpful. I think we can probably say entirely safely
3 that it will not be before midday and it may not be
4 before the afternoon. But your journey from whichever
5 of the sticks you are coming from needn't start early
6 enough to get you here before about noon.
7 MR MILLINGTON: Well, I won't need to set off now but I will
8 certainly be on my way tomorrow morning.
9 LORD JUSTICE HOLROYDE: All right. Thank you very much,
10 Mr Millington. We will see you, then, tomorrow.
11 MR MILLINGTON: Thank you very much.
12 LORD JUSTICE HOLROYDE: All right.
13 We have already indicated that those whose speaking
14 parts have been concluded are certainly not required to
15 attend. They are very welcome to but they are not
16 required to attend.
17 So unless anybody wants to raise anything else, it
18 seems sensible in the timetable that we break off now
19 until 10.30 tomorrow and proceed in the order we have
20 indicated, and expect that we will either conclude the
21 case or all but conclude it tomorrow. Obviously,
22 I hasten to add, having used the word "conclude", as
23 everyone knows, we will be reserving our judgments.
24 Our thanks to everyone. We are conscious that for
25 those who are watching and listening remotely it is
150
1 probably not as easy to hear and to see as it is for
2 those of us in court. As we said on Monday, we regret
3 that, but we are all doing the best we can in difficult
4 circumstances. But what has not been in any way
5 affected by the combination of live appearances and
6 remote appearances by counsel is the outstandingly high
7 quality of submissions from all to date. And we are
8 very grateful to everyone thus far and we look forward
9 to further submissions tomorrow.
10 MR ALTMAN: I hope I don't let us down tomorrow, but thank
11 you very much.
12 LORD JUSTICE HOLROYDE: It can only go wrong, Mr Altman, in
13 that sense.
14 All right. Thank you very much indeed. We will
15 rise until 10.30 tomorrow.
16 (4.03 pm)
17 (The hearing adjourned until 10.30 am the following day)
18
151
1 INDEX
2
3 Housekeeping .........................................1
4 Submissions in reply by MR STEIN .....................1
5 Submissions in reply by MS BUSCH ....................18
(continued)
6
Submissions by MR SMITH .............................48
7
Submissions by MS O'REILLY ..........................52
8
Submissions by MS BUSCH .............................83
9
Submissions by MR STEIN ............................117
10
Submissions by MR SMITH ............................138
11