This is the unperfected transcript from Court 4:
1 Thursday, 25 March 2021
2 (10.30 am)
3 LORD JUSTICE HOLROYDE: Mr Stein.
4 Submissions by MR STEIN
5 MR STEIN: My Lord, yesterday, I was asked two questions
6 concerning Ms Lock's position. One was regarding monies
7 received. May I say that Ms Lock and Mr Orrett are
8 still looking into that matter.
9 LORD JUSTICE HOLROYDE: Yes.
10 MR STEIN: The second question concerned calls to the
11 helpline and as you will recall, it was some time ago,
12 I am afraid, for Ms Lock, and she cannot recall details
13 of calls.
14 LORD JUSTICE HOLROYDE: No. All right, thank you very much.
15 MR STEIN: One last matter, that I have been asked to make
16 clear and I do, I referred yesterday, forgive me for
17 turning sideways, I referred yesterday to the generic
18 disclosure extracts to an extract which appears at 780
19 and concerned A O48. I have been asked to make clear
20 and I'm happy to do so, that that is an appeal from the
21 Magistrates' Court to the Crown Court that has not yet
22 been decided in terms of the decision made by the
23 Post Office.
24 LORD JUSTICE HOLROYDE: Right, thank you.
25 I don't think -- nothing was said yesterday which
1
1 could identify that page to case to anyone who doesn't
2 know all the ciphers already.
3 MR STEIN: Yes, my Lord.
4 LORD JUSTICE HOLROYDE: Right.
5 MR STEIN: My Lord, we turn then, this morning, to
6 Stanley Fell, aged 69 now. My Lord has a speaking note
7 that we have provided to the court and to the
8 Post Office and my learned friends, of course.
9 That largely sets out our submissions. Can I flesh
10 it out, as far as that would assist the court overall?
11 LORD JUSTICE HOLROYDE: Yes.
12 MR STEIN: My Lord has heard on a number of occasions that
13 I have referred in our opening submissions, general
14 submissions and individual submissions yesterday, to the
15 generic evidence review. Whilst not going back into
16 that again, I pray in aid the remarks made by those
17 individuals over so long a period of time, because they
18 demonstrate the position that Mr Fell was in, as were so
19 many others. "I don't know what is going on, I can't
20 explain the losses, I don't understand what is happening
21 with the Horizon system, it is a mystery", people
22 panicking, people clearly making decisions they wouldn't
23 have done in other circumstances, contrary to positive
24 good character.
25 That is one of the fundamental reasons why I have
2
1 repeatedly referred to that review, as it provides
2 supporting evidence to the points decided by
3 Mr Justice Fraser, that these individuals, the
4 sub-postmasters, were in a position whereby, without the
5 information being provided during the course of their
6 duties that there were problems with Horizon, with the
7 unequal business relationship with Horizon, they were
8 left in circumstances whereby they didn't know what to
9 do. Decision making was poor, they fell into error.
10 So we have many cases within this litigation whereby
11 people were false accounting, essentially, because of
12 the problems that they were in. So that is a background
13 matter that I do ask you to consider.
14 One fact we haven't looked at in any detail, decided
15 by Mr Justice Fraser, again emphasis on the problem that
16 was confronted by SPMs. If you wish to go to it, it is
17 within the judgments of Mr Justice Fraser, number 3. It
18 happens to be at page 404 of the bundle. The paragraph
19 number within the judgment is 1117. It just provides
20 evidence on the difficulties that the postmasters were
21 in, versus the Post Office. Suspended postmasters were
22 not paid for their period of suspension, but in order to
23 keep their branches open, had to pay temporary SPMs to
24 run them. Even if reinstated, they had no right to be
25 paid for remuneration for their period of suspension.
3
1 I mention that only, yet again, to provide emphasis
2 on the unequal business, bargaining, contract, that
3 these individuals were in.
4 So with that background overall submission, as
5 my Lord, you know, Mr Fell was a third generation Fell
6 working for the Post Office and he took, undertook, the
7 contract at the Newton Bergoland Post Office, a small
8 village, from 1976, until his suspension in 2006.
9 There had been no problems, no difficulties until
10 after Horizon was installed. My Lord, as so many others
11 who present their appeals before this court, Mr Fell was
12 a highly regarded member of the local community. The
13 character references that were supplied on his behalf
14 before the court, on his conviction by his own plea,
15 spoke incredibly highly of him as both a mainstay of the
16 community, a real support for those who were infirm or
17 of age.
18 We submit that Mr Fell falls into the category of
19 individuals, where, though there were unexplained
20 losses, I will explain that in a little bit more detail
21 in a moment, whereby his prosecution was at a time, as
22 all other appellants, whereby there was no system of
23 disclosure, or no system of disclosure that could
24 properly be described as such, established in order to
25 prosecute any individual. Without repeating all of the
4
1 arguments therefore, we suggest that he falls within the
2 overall categories of abuse in terms of abuse 2, limb 2.
3 It is an affront to justice he is prosecuted in these
4 terms and as regards limb 1, which as, my Lord, you are
5 aware, this is not a conceded case by the Post Office,
6 and we say that the denial of a proper system of
7 disclosure had an effect in his particular case.
8 My Lord, we have set out a legal framework within
9 the speaking note. I have referred at earlier times
10 within these appeals to the fact that, even in
11 circumstances where there is a plea of guilty, the
12 overall position in law is that, if there is material
13 that could lead or might lead within the terms of the
14 CPIA to an application to stay proceedings, that
15 material must be disclosed and an individual in any such
16 circumstances might well find themselves in a situation
17 whereby they can apply for a stay of proceedings.
18 MR JUSTICE PICKEN: Can I just ask you, is your primary
19 purpose in addressing Mr Felstead abuse ground limb 1 or
20 is it limb 1 and 2 -- I anticipate it is limb 2 as well
21 but is your primary focus limb 1?
22 MR STEIN: My Lord, if I were to say one is more preferable
23 than the other, then it might undermine an argument.
24 What we say is he is entitled to both. The overall
25 abuse is the affront to justice level of abuse, that he
5
1 was in that position, and I don't need to argue any
2 further, we have dealt with those arguments over the
3 last days, so for these purposes, perhaps the best
4 answer I can provide is that I am mainly addressing for
5 these purposes, limb 1.
6 MR JUSTICE PICKEN: That is fine.
7 MR STEIN: I don't want to undermine that by suggesting that
8 one is preferable to the other.
9 LORD JUSTICE HOLROYDE: Logically, I suppose, the starting
10 point is raised by the respondents in argument, "Is this
11 really a Horizon case at all"; that is the logical
12 starting point.
13 MR STEIN: Exactly. The respondents argue that here is
14 a gentleman that on the visit by Ms Bailey on an audit,
15 after an important point, after essentially, Mr Fell had
16 called attention to his own Post Office by making
17 repeated remarks and complaints about the numbers not
18 matching up, the Post Office decided, via Ms Bailey, to
19 visit and then he made the point that I am sure will be
20 made by Mr Altman, then he made admissions from that
21 point onwards and those admissions, to complete the
22 point no doubt being made by Mr Altman later on, were
23 then carried through into the basis of plea and through
24 a voluntary interview process.
25 So I don't want to steal Mr Altman's thunder but
6
1 that is, essentially, no doubt going to be the
2 respondent's points.
3 So we have dealt with the fact that it was at a time
4 whereby there was no or no adequate system of
5 disclosure. We have asked the court to take note of the
6 fact that, despite what is going to be said, that this
7 is not a Horizon case, this was a case whereby in the
8 statement of Penelope Thomas, dated 2 March 2007, that
9 that contained the standard declaration that everything
10 is okay with the system -- my paraphrase, not the exact
11 wording.
12 There is no evidence, and there was no evidence that
13 Mr Fell was living the high life. There was no
14 lifestyle evidence. There was no evidence before the
15 court or at this stage, or at any stage, that there was
16 unexplained sums of money, either in actual cash terms,
17 if you like, or going into bank accounts. So no other,
18 outside of the case, if you like, supporting evidence of
19 particular types of cars or similar.
20 In terms of disclosure, this was at a time whereby,
21 whilst there had been, perhaps, some questions raised
22 regarding Horizon, it is at an early time. We are not
23 into 2010s, we are not into the period of time beyond
24 that, whereby the general discussion about the
25 reliability of Horizon was there. This is a slightly
7
1 earlier time for Mr Fell. It provides a point in
2 support because it means that he wouldn't necessarily
3 have known that here is an answer to his particular
4 issues.
5 Now, we know from the CCRC review of this particular
6 case, set out at paragraph 15 of our speaking note at
7 page four, that the CCRC took into account at a later
8 stage -- again, no doubt, a point going to be made by my
9 learned friend -- that Mr Fell explained that he had
10 been using shop money to balance unexplained Horizon
11 losses. So this is a Post Office, it is the typical
12 rural Post Office, that frankly, I grew up with as well,
13 that has the grocery shop and Post Office next door to
14 it, all in one business, so what was being said there
15 and accepted by the CCRC in terms of the referral, is
16 that there were two parts of it and that Mr Fell had
17 explained then.
18 That, of course, will be shown by my learned friend
19 or said by my learned friend that that is later on --
20 that will be a point that will be raised. I will attack
21 that in a moment but can I then look at the facts in
22 support.
23 The Horizon system was installed in 2001. Mr Fell
24 did not find this a natural transition. He found the
25 course difficult and required support thereafter. He
8
1 had assistance, therefore, in running the system and it
2 wasn't easy. Can I take you then now, please, to bundle
3 E, page 98. We are going to look at a point that
4 concerns discrepancies. To understand this point, we
5 need to bear in mind that one part of Mr Fell's case
6 concerns the fact that to support the grocery business,
7 it had entered into a contract with a supplier called
8 First Choice, that required a certain amount of stock
9 being turned over per month, if I've got that right.
10 That was explained by him as being, therefore, the
11 reason why there was, as he put it at that time, the
12 money being taken from the Post Office.
13 So it is important to remember that point and the
14 description of the timing of that was set out by him in
15 the basis of plea as being towards the end of 2004,
16 beginning of 2005. So if we hold those dates in mind,
17 end of 2004 and beginning of 2005, that is the First
18 Choice contract and now, if we can, please, turn to
19 page 98, bundle E.
20 As we will see when we look at paragraph 2.1, the
21 description there is the shortfall that was identified
22 during the audit. The second point at 2.2:
23 "Both parties recognise that the appellant [as
24 I call him, obviously, for these purposes -- the
25 applicant at that stage] had reported and made good
9
1 discrepancies on four occasions between late 2005
2 and December 2006, aggregating to £1,110 and some
3 change."
4 I think 87p.
5 It is an important point. The reason why it is
6 important is that the respondents are going to say that
7 the only description made by Mr Fell of both sides of
8 the business having difficulties, in other words, having
9 to use money from one side to pay for Horizon and the
10 other side to pay for the grocery business, the only
11 time that that comes up in the respondent's submissions
12 is going to be post, in other words after conviction,
13 when matters then go to be considered at a later stage.
14 What we have here though, is important. This is
15 after the First Choice contract comes into play, this is
16 what, on the face of it, appears to be Mr Fell making
17 good discrepancies on four occasions, between dates that
18 are after the contract comes into play. As far as we
19 know, this is not material that was available to the
20 legal team instructed on behalf of Mr Fell. Now, that
21 could come from two different sources. It could have
22 come from, as an example, Mr Fell saying to his legal
23 team "Just so you know, what has been happening is that
24 I have been balancing out what appear to be these
25 discrepancies on four occasions from my own pocket,
10
1 essentially the other side of the business." That is
2 one source. The other source, by way of disclosure,
3 would have been from the Post Office, in setting out
4 back accounting whereby that had been made out.
5 It is difficult to know at what stage this was
6 known. The point we make is that Mr Fell, like so many
7 others, working in this unequal contract term situation
8 with the Post Office, is not necessarily going to know
9 what is in his own interest to tell his own lawyers at
10 any particular time. Confused, frightened, not knowing
11 what is relevant. This evidence provides an insight
12 into what may well have been going on, we suggest,
13 within the Post Office, in other words, that this was at
14 a time whereby it is the first iteration of Horizon, the
15 worst iteration of Horizon, as found by
16 Mr Justice Fraser, slightly worse than Horizon 2; it was
17 at a time whereby there were bugs, it is at a time
18 whereby the respondents accept that bugs could cause
19 significant unexplained losses to individuals.
20 LORD JUSTICE HOLROYDE: I just want to -- sorry to interrupt
21 you, Mr Stein, I just want to make sure I've got the
22 dates right. At paragraph 2.2, on page 98, it seems to
23 have been common ground that the making good of the
24 discrepancies disappeared between late 05
25 and December 06, but the indictment period is 1 June to
11
1 24 October 2006.
2 MR STEIN: I am aware of that. I have looked at that myself
3 and considered whether that quite can be right, because
4 it is a December point, after the suspension would have
5 come into play.
6 LORD JUSTICE HOLROYDE: It has to go to the oral disclosure
7 evidence, and if those dates are right, then I suppose
8 the immediate question would be, should the 195-8304 on
9 the indictment be plus or minus the 1110.87 in
10 paragraph 2.2.
11 MR STEIN: It does go to that and it goes to the next point
12 I wish to make. One of the difficulties we have got
13 with Mr Fell's case that I have had to concede at
14 an earlier hearing is we don't have the Horizon material
15 available. This is not a case, whereby as I understand,
16 later on today, you will be hearing from an expert in
17 relation to an analysis of Horizon. That could not be
18 done in Mr Fell's case. So we have now no way of
19 backtracking into it to consider, actually, what was
20 happening. Which has led in my mind to a rather
21 interesting circular problem which is that, now before
22 this court, we are left in a position whereby this court
23 is prevented, through the many years of denials of
24 problems in the Horizon system and the ignoring of that
25 by the Post Office, we are now left at an appeal level
12
1 with an inability to reconstruct what was happening at
2 the time. The very fact of the delays in recognising
3 that Horizon had faults and the denial of it, actually
4 now causes us a problem in looking at what, in different
5 circumstances, might have been an appeal maybe a year or
6 two later, if that had been available to Mr Fell, where
7 material might have existed that we could have got to
8 the bottom of this.
9 So a knock-on effect, in other words, of not saying
10 there is a problem with Horizon, in denying that for so
11 many years, has meant that this court and ourselves on
12 his behalf, cannot look into these issues.
13 One further point arising out of this particular
14 document that may assist this court, it perhaps is of
15 the same type as I have explained before, that Mr Fell
16 found the training difficult, that this was not easy for
17 him, when starting off with Horizon. Page 102, bundle
18 E, please.
19 Paragraph 5.7 -- sorry, it is page 102.
20 Paragraph 5.7:
21 "The applicant complains that when he called the
22 helpline, which he said he did frequently, he was often
23 kept hanging for long time periods and he describes the
24 advice eventually given as impossible to understand."
25 Again, you will see why I have been referring to the
13
1 generic review. This is not an uncommon problem. He
2 states that the advice given "sometimes contradicted
3 advice given by other helpline operatives and [he] was
4 frequently reminded that if he was unable to balance,
5 his contract was at risk."
6 Again, a comment made by others and also referred to
7 in the High Court proceedings. What evidence is there
8 that supports the frequency of contact? 5.8 please,
9 page 103.
10 We see there -- forgive me one moment, I am just
11 checking a date.
12 We see there that in relation to Mr Fell, that the
13 appellant, applicant described here, made 721 calls to
14 the NBSC helpline from October 2000 to October 2016,
15 averaging 2.3 per week. It states that the NBSC call
16 logs indicate that helpline staff showed a willingness
17 to assist the applicant and it is reasonable to assume
18 that the advice given was satisfactory, as the applicant
19 did not make complaints about the helpline.
20 It then refers to the fact that there was no
21 evidence of helpline staff, just an absence of evidence
22 point, telling the applicant that his contract may be
23 terminated if he failed to find a solution to his
24 problems.
25 But 5.9 assists us a little further:
14
1 "Due to the limited nature of the helpline logs, it
2 is difficult to assess whether or not the advice given
3 satisfactorily addressed the applicant's problems. We
4 cannot find evidence of helpline staff advising the
5 applicant that his contract would be terminated if he
6 was unable to resolve errors."
7 Although it is reasonable to assume that comments
8 such as those may not be shown in the notes typed out by
9 the operatives.
10 LORD JUSTICE HOLROYDE: In other walks of life, Mr Stein, it
11 often seems impossible to make a banal telephone call
12 without being told it is being recorded for training
13 purposes. Do we know whether any of these helpline
14 calls were recorded for training purposes or otherwise?
15 MR STEIN: I will look into that or I could turn to Ms Carey
16 (Inaudible).
17 Yes, it is going to be checked, my Lord.
18 LORD JUSTICE HOLROYDE: Very kind, thank you.
19 MR STEIN: What we do know is that tends to support the fact
20 that Mr Fell was one of the individuals who found the
21 working of the system difficult, that he made repeated
22 calls during that time, over 100 a year, to the
23 helpline.
24 Lastly, regarding the evidence that we have brought
25 before the court, we have added a particular note that
15
1 I now cannot find, which is set out behind the speaking
2 note bundle that we provided. It is an email from
3 Mr Warmington, who conducted the post conviction stage
4 review in relation to Mr Fell.
5 LORD JUSTICE HOLROYDE: Yes. We saw the reference to that
6 in the speaking note. Do you actually have a copy of it
7 anywhere?
8 MR STEIN: My Lord, you should. It is at the last page, we
9 hope, of the bundle that we provided with the speaking
10 note.
11 So ...
12 LORD JUSTICE HOLROYDE: Thank you.
13 MR STEIN: The point that was made there is that it was down
14 as Mr Fell himself complaining to POL about the shortage
15 of cash. This is made by Mr Warmington in that review:
16 "He presumably didn't have enough cash to keep his
17 branch open and running is a pretty solid indicator that
18 he didn't know if he was running at a deficit."
19 What we suggest, therefore, are that there are
20 a number of indicators here that tend to show Mr Fell
21 had problems with running Horizon. There are questions
22 regarding what was going on with Horizon, whether it was
23 causing losses that he had to make up. We cannot now
24 answer because the material doesn't exist.
25 He, like so many others, found himself in a very
16
1 difficult position. We cannot expect people suddenly
2 thrust into a problem with the Post Office to
3 necessarily act logically and provide even his own legal
4 team, sometimes, with information that may help them,
5 particularly in the absence of disclosure.
6 So I revert back to my opening submissions. There
7 is some evidence here on which we suggest, if the
8 Post Office had been open and plain and accepted
9 problems with Horizon, that would have led Mr Fell and,
10 in particular, his legal team, to ask the questions:
11 what was going on within this Post Office? Were there
12 problems? Were there bugs? What were the difficulties
13 encountered by Mr Fell? And they could have asked those
14 questions both of the Post Office and also of Mr Fell.
15 When, on this side of the court, we are discussing
16 matters with our clients, it would help, essentially, if
17 we had some idea of the nature of the problems and we
18 all know that sometimes our clients are not able to help
19 us unless you put them on the right path through
20 material that you get from the prosecution and here,
21 there was a non-starter in relation to that.
22 So in no way do we criticise, blame or say there is
23 any fault from his legal team. They saw an individual
24 who appeared to be accepting from the word go, fault,
25 they gave him proper advice and he accepted that advice
17
1 and that led to the plea of guilty.
2 THE CLERK OF THE COURT: My Lord, may I make a final
3 announcement to ask that lady to turn her camera off.
4 LORD JUSTICE HOLROYDE: Yes, a lady has appeared visible on
5 screen. Somebody has not got a camera turned off. I am
6 afraid we don't know who it is but whoever it is has,
7 I think, a bright green item or possibly garment in
8 front of her.
9 I think she may just have identified herself. Would
10 you be kind enough to turn off the camera, madam. Thank
11 you very much.
12 THE CLERK OF THE COURT: Thank you, my Lord.
13 LORD JUSTICE HOLROYDE: Thank you Mr Mariani.
14 MR JUSTICE PICKEN: Mr Stein, can I just ask a question.
15 Could you go to the Second Sight report which you have
16 taken us to, page 100.
17 MR STEIN: Yes, my Lord.
18 MR JUSTICE PICKEN: And at 4.9, and then go to the top of
19 page 101, the same paragraph:
20 "The Post Office notes that the applicant pleaded
21 guilty to false accounting in court and a letter from
22 his legal representatives states that he had always
23 accepted that he was guilty of false accounting by way
24 of creating false records to disguise the monetary loss
25 caused as a result of his taking funds to keep his post
18
1 office afloat."
2 Have we actually got that letter, do you know?
3 LORD JUSTICE HOLROYDE: We have.
4 MR JUSTICE PICKEN: It is the letter at page 79, is it?
5 Which I think must be (Inaudible).
6 MR STEIN: Yes, my Lord.
7 LORD JUSTICE HOLROYDE: Before the plea.
8 MR JUSTICE PICKEN: Thank you very much.
9 But your submission, presumably, is that that puts
10 Mr Fell in a similar category to others, where the false
11 accounting is being done to make up for errors that he
12 otherwise cannot understand because of Horizon?
13 MR STEIN: Yes. It does, my Lord, yes.
14 MR JUSTICE PICKEN: Thank you.
15 MR STEIN: My Lord, those are our submissions. I have been
16 slightly shorter than I expected. I hope that assists
17 the court in other ways.
18 LORD JUSTICE HOLROYDE: Yes, thank you, Mr Stein.
19 Mr Altman.
20 Submissions by MR ALTMAN
21 MR ALTMAN: The first point I am going to make is I thought
22 I heard Mr Stein say he didn't have access to the call
23 logs. He does. They were disclosed in tranche 1,
24 20 August last year, and so it has been open to Mr Stein
25 to check through the logs to see the nature of the calls
19
1 Mr Fell made to that helpline.
2 The second point and the central one which my Lord,
3 Lord Justice Holroyde, identified at the beginning and
4 one which has been clear throughout, is the question,
5 what makes this a case which depended on the reliability
6 of Horizon data? And what I respectfully submit is the
7 court has heard lots of argument from Mr Stein about all
8 of the problems suffered by other sub-postmasters and
9 including some that Mr Fell said after the event in
10 2014, during the course of the mediation process.
11 Unsupported, I have to add, by Mr Fell's own evidence
12 before the courts by way of (Inaudible) but be that as
13 it may, what we have not heard from Mr Stein is why this
14 is such a case, why it falls within the same category as
15 all the other cases the court has been dealing with over
16 the past couple of days.
17 Can I begin where, in a sense, Mr Stein himself did
18 with the plea.
19 The court knows and I am in the court's hands
20 whether the court wants to go back to the authorities
21 but the court is pretty well aware of the authorities on
22 the issue of the plea and the nature of the plea that
23 the court is dealing with in this case. The section 4
24 of the statement of reasons, and for the court's
25 reference, it is bundle A, tab 1 at page 53, sets out
20
1 the relevant authorities. You will remember the case of
2 Bhatti and you will remember the case of Kelly v
3 Connolly, dealing with that, which is in fact in your
4 bundle. If the court wishes me to take them to it, I am
5 very happy to. It's tab 15 of bundle B.
6 So it is the case of Kelly v Connolly in 2003 at
7 page 227. And the relevant part is to be found at
8 page 259 and my Lord, perhaps it is as well to have
9 these principles in mind, as the court will, because
10 they cut through all of the cases that the court has to
11 deal with today.
12 On page 259 at (b), you will find the case of Bhatti
13 referred to, an unreported case of 2000, which contains
14 an extensive summary and analysis of the relevant
15 authorities and the facts are there set out. Then the
16 court said, Lord Justice Potter said at paragraphs 30 to
17 33:
18 "However, when the appeal is in respect of
19 a conviction following a plea of guilty, the
20 considerations which apply are very different and the
21 circumstances in which it may be appropriate or proper
22 to allow the appeal are of necessity very limited. That
23 is because the safety of the conviction depends not on
24 some legal error or perceived role or irregularity which
25 has arisen in the course of the adversarial process of
21
1 the trial, thereby leading to a verdict of guilty, which
2 might otherwise have been not guilty, it rests upon the
3 question of whether and in what circumstances the court
4 should look behind the plea of guilty (which represents
5 a voluntary recognition of guilt) and later on, an
6 examination of the reasons or motives of the defendant
7 in deciding so to plead. That, in turn, requires the
8 court to reach a decision based not upon objective
9 matters of record, namely the procedures adopted and
10 decisions reached openly in the course of the trial, but
11 on the subjective recollections and subsequent account
12 of the appellant and/or his advisers as to the reasons
13 for his plea."
14 The citation continues into the next page, which
15 I invite the court to read. At page 263 --
16 MR JUSTICE PICKEN: Specifically at paragraph 31, fourth
17 line down, "Similarly, whereby a reason of some act of
18 deception or non-disclosure on the part of prosecution".
19 MR ALTMAN: Yes, I don't doubt that but that question in
20 this case, as well as the others, is going to depend on
21 whether disclosure in relation to issues with Horizon
22 was necessary under the test, under the 1996 Act. That
23 depended on the question of whether it is a Horizon
24 reliability case. That is why, as it were, all roads go
25 back to that one question. Paragraph 127 on page 263:
22
1 "Ultimately, however, the test is of the safety of
2 the conviction. For the reasons expressed in Bhatti,
3 the scope of the finding that an unequivocal and
4 intentional plea of guilty can lead to an unsafe
5 conviction, must be exceptional and rare. However,
6 undue pressure or errors of law or unfairness in the
7 trial process may all be of such important causative
8 impact on the decision to plead guilty, that the
9 conviction which follows such a plea can, in
10 an appropriate case, be described as unsafe. In our
11 judgment, such as this case. A question of fact in each
12 case."
13 So those are the important decisions, but there are
14 two others to which reference has been made. The cases
15 of Early and Togher. And perhaps it's worth, while we
16 have bundle B before us, to go to tab 14 in the case of
17 Early, Vice President, Lord Justice Rose and it goes to
18 paragraph 10, under the heading "Court's approach". And
19 if I invite the court just over halfway down, where you
20 will find the words at the beginning of the line "Are
21 involved", and the passage continues:
22 "We approach the question of safety of these
23 convictions following pleas of guilty in accordance with
24 ...(Reading to the words)... as approved in Togher,
25 namely a conviction is generally unsafe if a defendant
23
1 has been denied a fair trial. We bear in mind in
2 particular, three observations by Lord Woolf in Togher.
3 First at paragraph 30, if it would be right to stop
4 a prosecution on the basis that it was an abuse of
5 process, this court would be most unlikely to conclude
6 that if there was a conviction, despite this fact, the
7 conviction shouldn't have been set aside."
8 Secondly, at paragraph 33:
9 "In circumstances where it had been said that the
10 proceedings constituted an abuse of process are
11 ...(Reading to the words)... to the situation where it
12 would be inconsistent with the due administration of
13 justice to allow the pleas of guilty to stand."
14 And thirdly, at paragraph 59:
15 "Freely entered pleas of guilty will not be
16 interfered with by this court unless the prosecution's
17 misconduct is of a category which justifies it. A plea
18 of guilty is binding unless the defendant was ignorant
19 of evidence going to ...(Reading to the words)... of
20 material which goes merely to credibility of prosecution
21 witness, does not justify reopening a plea of guilty."
22 Those are the principles on which the court is being
23 invited to act.
24 It is those principles, indeed, which the CCRC sets
25 out in its statement of reasons. Now, in this case, if
24
1 the respondent is correct that this was not a Horizon
2 case, and I will come to why it isn't in a short while,
3 then as I have already said in passing, there was no
4 obligation to disclose material going to Horizon
5 reliability under the well known principles within the
6 act.
7 If that is right, non-disclosure cannot give rise to
8 an abuse of process, whether limb 1 or limb 2.
9 A secondary point has been advanced during the course of
10 argument over the past couple of days and it may be one
11 to which Mr Millington refers to later. At paragraph 6
12 of the respondent's notice, as the court has before it,
13 bundle A, tab 4; bundle A, tab 4, page 1148.
14 Paragraph 6 has been alluded to more than once. What we
15 said there was the respondent also accepts the
16 applicable law set out by the CCRC at paragraphs 94 to
17 108 of the statement of reasons. The respondent doesn't
18 seem to draw any distinction between appellants who were
19 convicted following the trial and those who pleaded
20 guilty at any stage in the proceedings.
21 It has been suggested that the respondent's stance
22 in relation to these three opposed cases is inconsistent
23 with that statement. With respect, it is not because it
24 ignores the all important preceding statement in
25 paragraph 6, which adopts the applicable law on abuse of
25
1 process. So the concession there is that the court is
2 not being asked to make any distinction in any cases
3 which were reliant on Horizon data, insofar as whether
4 conviction was after a trial or following a plea.
5 The point is that if it is accepted that in cases
6 where Horizon reliability was relevant, there should be
7 disclosure from the outset to enable an abuse argument
8 to be advised. Failure to do so deprives the appellants
9 of the opportunity to advance an abuse submission, and
10 that means that the plea is tainted, and this is why in
11 any case where Horizon reliability was essential, the
12 Post Office has conceded these appeals, albeit on limb 1
13 in all but these three opposed cases and on limb 2, as
14 the court well knows, in four.
15 However, in this case, and indeed as with the other
16 two opposed cases, our submission is that Horizon
17 reliability was not essential as such, since the test
18 for disclosure was not satisfied and there was no abuse
19 argument advanced on the basis of material
20 non-disclosure. There is, we say with respect, nothing
21 to initiate the plea. As such, the guilty plea in this
22 particular case, and indeed the other two, which we will
23 come to, are not undermined and remain important. In
24 fact, direct evidence of guilt, in support of the safety
25 of the convictions.
26
1 In his speaking note which the court received
2 yesterday, Mr Stein's speaking note, reference is made
3 to Mr Fell's position, which is said to justify the
4 stance on Mr Fell's admissions. He then sets out in
5 that document what the CCRC relied upon. It included
6 information that Mr Fell took Post Office money to repay
7 unexplained losses, among other points. Can I invite
8 the court's attention to the statement of reasons, in
9 the first bundle, bundle A, at page 66.
10 One will find at page 66, this part of the principal
11 reference, subparagraph 7, which relates to a ciphered
12 case but the court can write in that that is the case of
13 (Inaudible).
14 LORD JUSTICE HOLROYDE: Yes.
15 MR ALTMAN: And what is said there is that:
16 "In this case, the shortfall was discovered when
17 a Post Office manager visited the branch because the
18 cash on hand figures appeared to be too high. In
19 a prepared statement which he provided to investigators,
20 the applicant explains that he had used Post Office
21 money to keep his shop afloat. He later pleaded guilty
22 to false accounting but denied theft. Although this
23 applicant admitted taking Post Office money to pay
24 bills, in relation to the shop, the CCRC considered that
25 it is significant that he also explained that he had
27
1 been using the shop income to pay unexplained Horizon
2 losses which were occurring. He then had taken money
3 back when he couldn't cover the shop bills."
4 Now, we can only speculate as to where that came
5 from. It clearly came from Mr Fell, and if it did, it
6 was (Inaudible) applications at the CCRC. But when we
7 come to look in a moment at what Mr Fell actually said,
8 and did, at the relevant time, one will see that that
9 was never claimed in the period up to and including his
10 basis of plea and, indeed, at the plea itself.
11 So we invite the court to be cautious. The court
12 has not heard, for whatever reason, evidence from
13 Mr Fell to support that claim and, therefore, it is
14 nothing more than an assertion which is unsupported by
15 Mr Fell's evidence.
16 We note that Mr Stein agrees, and it was agreed at
17 the time of the mediation process, that Mr Fell had made
18 good four shortfalls on the occasions mentioned in the
19 paragraph that Mr Stein took the court to and Mr Stein
20 relies upon an email from Mr Warmington, Mr Warmington
21 being one of the partners of Second Sight, in an email
22 dated 2013, where Mr Warmington himself, also not
23 a witness before the court, gives -- one cannot even
24 really call this an expert opinion but an opinion about
25 Mr Fell's responsibility for taking the money. The
28
1 relevance and the permissibility of it are unclear and
2 certainly, also in light of the document to which
3 Mr Stein took the court, the case review report at the
4 back of the bundle, in the mediation process, a year
5 later, 2014, when -- Second Sight views about the fact
6 that there were no cash deposits to be found which was
7 said by Second Sight not to be very unusual. Because of
8 course, Mr Fell's case was he was robbing Peter to pay
9 Paul, in other words, he was taking Post Office cash
10 from the shop till rather than it going through the bank
11 account. So according to Second Sight, it was not
12 completely unusual not to see cash deposits, so
13 Second Sight didn't conclude there was anything in that
14 particular point that was being made during the course
15 of the mediation.
16 So what are the facts that were before the court?
17 Mr Fell entered his plea on the basis of a plea document
18 and the court has that behind tab 26 at bundle E.
19 "I, Stanley Fell, am currently charged with a single
20 offence of false accounting."
21 In brackets we see there the indicted date,
22 1 June 06 to 25 October 06:
23 "I will plead guilty to this offence on the
24 following basis. Towards the end of 2004/the beginning
25 of 2005 ..."
29
1 This is before the shortfalls which were made good
2 even arose:
3 " ... I entered into a contract with a wholesaler by
4 the name of First Choice Limited. First Choice Limited
5 were to supply the stock to my stock which is contained
6 within the Post Office premises. In entering into such
7 an agreement, I hoped to turn around the poor sales that
8 the shop had experienced in the recent past. Initially,
9 the new contract led to a modest improvement but this
10 trend quickly reversed, due to one particular term in
11 the contract which stipulated that I must spend
12 a minimum of £2,000 on stock every week. It soon became
13 obvious that I simply didn't have the time (Inaudible)
14 to meet the stipulated term and I began to borrow [is
15 the word used] Post Office funds in order to meet the
16 shortfall and keep the shop afloat."
17 Pausing there, this is not an unexplained shortfall,
18 it is an explained shortfall:
19 "This took place over roughly the same period as set
20 out in the charge and I admit that I acted dishonestly
21 in falsifying the monthly (Inaudible) statement."
22 Then over the page:
23 "I wish to confirm to the court that at no time did
24 I intend to permanently deprive the Post Office of the
25 monies in question. It was always my intention to pay
30
1 back that which I had borrowed, as I now have. I didn't
2 intend to steal the money."
3 And it is signed, as we can see, by him, and
4 counsel, his solicitors, dated 27 July 07.
5 We make the following submissions, of which there
6 are nine in essence.
7 First, and my Lord, I will, in the same spirit as
8 everyone has done, I will tidy up my speaking notes
9 and --
10 LORD JUSTICE HOLROYDE: Thank you very much.
11 MR ALTMAN: First, the appellant made no claim and never
12 did, up to and including his pleas, covering up that
13 Horizon generated shortfall, rather than one created by
14 his own actions in taking money from Post Office to prop
15 up his retail business. In the basis of plea, which we
16 have just seen, he made no claim whatsoever to having
17 borrowed money from the Post Office -- this is the
18 important part -- to repay what he had made good in the
19 past.
20 Can I say, if that had been his case, then perhaps
21 a different approach might have been taken towards it,
22 but he never said it, it was never his case. But what
23 he had done was to repay what he had made good in the
24 past. There is another reason why it cannot have been
25 and I'll come to that in a short while. This was all
31
1 about a bad financial deal that he had got himself into,
2 which required him, for liquidity purposes, to take the
3 money and cover up for it.
4 Indeed, when one looks, for example, at certain
5 things which had been said on Mr Fell's behalf, not just
6 today, not just in Mr Stein's speaking note but also in
7 the original grounds, they included claims by Mr Fell --
8 and this is to be found, my Lord -- we don't need to
9 look at it but the original grounds are in the very
10 first tab in the bundle, but I will give the court the
11 reference. It is paragraph 13(v), letters A to F and
12 they include a series of claims made on Mr Fell's
13 behalf, unsupported by evidence, relying on the draft
14 Second Sight report which is in tab 28, a year after
15 Mr Warmington's email, but representations included
16 then, that he didn't commit false accounting because he
17 says he informed the Post Office of the shortages on
18 several occasions.
19 He did but that was never part and never underlay
20 his plea of guilty. It was never part of his case.
21 Secondly, he went this far, that there was no evidence
22 he had taken money from Post Office which, as we know,
23 is in contradistinction to his own accounts, including
24 his own unequivocal plea and the basis of it.
25 The importance of the final case which you will
32
1 recall, which is in the final tab of bundle E, if you
2 could please go back to that. Tab 29, page 99. You
3 will see the dates. It is 5 December. The one before,
4 in tab 28, was dated 3 November and headed "Draft", and
5 this is the final. If one goes to the paragraph
6 Mr Stein invited attention to at 2.2. Both parties
7 recognise Mr Stein, in his document yesterday, called
8 this agreed -- it was agreed but this is how
9 Second Sight describe it:
10 "Both parties recognise that the applicant had
11 reported and made good discrepancies on four occasions
12 between late 2005 and December 2006, aggregating to
13 £1,110.87."
14 In order to come to this agreement, clearly these
15 figures hadn't changed and these were the only shortages
16 that had ever been reported and these were agreed by
17 Mr Fell and the Post Office, totaling a little over
18 £1,000.
19 If the money Mr Fell -- this is point 9, I have
20 probably skated over point 2, so I know my Lord likes
21 counting the points, so forgive me.
22 LORD JUSTICE HOLROYDE: I have stopped that at 1.
23 MR ALTMAN: That is very unkind -- there was more than one
24 point there.
25 LORD JUSTICE HOLROYDE: I understand.
33
1 MR ALTMAN: If the money Mr Fell falsely claimed, pleaded
2 guilty to and repaid, which is £19,000-odd, equated or
3 approximated to what he had admitted he removed from the
4 Post Office, then the four discrepancies he made good
5 during the period of late 2005 to December 2006, he came
6 (Inaudible) your Lordship's point on the indictment page
7 which are narrower, cannot explain the scale of losses.
8 That is his point. If his case really is "I was making
9 the discrepancies", £19,000, even deducting the thousand
10 leaving 18,000, cannot account for those four
11 discrepancies.
12 We know, moving on, that the appellant also made
13 a series of comments during the course of the
14 investigation, which is cable of bearing an adverse
15 interpretation. If one goes -- and if the court finds
16 it helpful, perhaps, rather than going to the actual
17 document, if you find it necessary, if we go within the
18 bundle, please, to the case summary which we prepared to
19 assist the court at tab 3, at page 16.
20 These are the comments which were made by Mr Fell
21 during the course of the early days and the importance
22 of this is even before he was ever charged or
23 interviewed, he made adverse comments, comments against
24 interest, paragraph 4, second line down:
25 "If I was to give you a cheque for the shortage,
34
1 would that be the end of it?"
2 That was on 23 October. Paragraph 7, three days
3 later, towards the bottom of that page, during the
4 conversation, Mr Fell said to Ms Bailey, the
5 investigator, that he had been very stupid and he hadn't
6 intended to take money from the Post Office but
7 circumstances had led him to it and the circumstances,
8 we suggest, are the ones he was to tell about later, his
9 financial mismanagement.
10 Over the page at the top, 17:
11 "Several times he told her that it had been
12 a foolish thing to do. He also told her that he thought
13 he would have been found out a while back."
14 "Found out a while back" does not sound in its terms
15 that he had problems with Horizon or was simply covering
16 shortfalls which had been made good in the past, or
17 repaid out of Post Office funds. He told her he thought
18 he would have been found out a while back, that a person
19 who had visited him then had not checked the cash
20 against the balance snapshot, as she had.
21 So in other words, somebody who had performed
22 (Inaudible) in the past had not done competently and had
23 missed what Mr Fell had been doing. Paragraph 9,
24 7 November 2006, last line. In relation to --
25 7 November is a copy of emails that Ms Bailey produced
35
1 and in which she noted these comments but also on
2 26 October, in the last one of this calendar month, he
3 had said he had not "taken any more money for quite
4 a while".
5 Then, my Lord, can I invite attention to the
6 prepared statement of 25 November, so a month after both
7 the initial conduct. Tab 14, and I am not going to go
8 through it all but I just invite attention to page 40
9 and 41, which -- 40 and 41, third paragraph:
10 "The burden of my actions became so unbearable that
11 on 11 November, I planned to end my life."
12 Penultimately on that page:
13 "I wish to offer the Post Office and my family
14 an unreserved apology for my financial negligence but
15 wish to reaffirm without prejudice that at no time have
16 I sought to steal or defraud the Post Office of any
17 stock or cash whilst in my custody. It has always been
18 my intention to repay the money to the Post Office."
19 So I emphasise, just looking at what we looked at so
20 far, prior to charge, Mr Fell admitted taking money but
21 his own defence was "I always intended to pay it back",
22 and therefore, his defence was lack of intention
23 permanently to deprive.
24 His defence evidence, tab 22, page 75:
25 "The nature of the accused's defence is that he used
36
1 the Post Office monies to keep the adjoining shop,
2 afloat having suffered a decline in the trade at the
3 Post Office and having mismanaged the stocking of the
4 shop, resulting in financial difficulties in meeting the
5 overheads of the business. He always intended to repay
6 the monies."
7 That is dated 7 June. No word there again, I have
8 to emphasise, about making good shortages in the past as
9 his reason for borrowing the money.
10 Then as my Lord, Mr Justice Picken commented
11 earlier, there is the solicitor's letter, which was
12 revealed during the course of the mediation. At tab 24,
13 6 July -- I think I said earlier that he pleaded the
14 next day and he was certainly sentenced on 27 July, but
15 the letter reads:
16 "Dear Stanley, I wish to confirm that you appeared
17 at Leceister Crown Court on 29 June for a plea and case
18 management hearing. As you will recall, a full
19 conference took place with myself, your barrister, Peter
20 Hampton, and Michael Rudkin from the Federation [Michael
21 Rudkin was involved in the early days at the branch
22 itself, when the auditors went in] and you again
23 received full advice regarding your plea. Peter
24 Hamilton liaised with the prosecution on the basis of
25 ...(Reading to the words)... loss of £19,582. The
37
1 prosecution confirmed a guilty plea to an alternative
2 count of false accounting was an acceptable resolution.
3 You have always accepted that you were guilty of false
4 accounting by way of creating false cash records to
5 disguise the monetary loss to the Post Office caused, as
6 a result of you taking funds to keep your shop afloat."
7 If ever there was going to be a document which
8 revealed Mr Fell's case was anything different, it was
9 going to be this privileged letter which I leave to
10 later. There was no hint here of what Mr Fell did or
11 conceded he did, was based on his having previously made
12 good unexplained shortfalls.
13 So a few, please, final submissions from me. I am
14 not going to number them this time but if this had been
15 a case -- if this had been a case where reliability of
16 Horizon data was essential, which is the premise of the
17 CCRC's references, then the appellant's case would
18 amount, at the very least, to a first category of abuse
19 of process, based on failures of investigation of the
20 disclosure of Horizon. That much we have always
21 accepted. But we submit this is not such a case.
22 Because it isn't, material that should have been
23 disclosed in cases which were dependent on the
24 reliability of Horizon data was not disclosable under
25 the 1996 Act. In a case like this, where we submit,
38
1 self-evidently, the reliability of Horizon data was not
2 essential.
3 If the argument is that it was incumbent on the
4 Post Office, in any event, to disclose the fact of those
5 four discrepancies at the time, or as Mr Stein himself
6 recognises, Mr Fell knew about them and could easily
7 have instructed his team about the fact of them. But
8 the fact that on the face of it, Mr Fell never did, is,
9 we submit, some recognition that in Mr Fell's mind,
10 those four incidents, those four discrepancies, had
11 absolutely nothing to do with the reasons why he removed
12 that cash from the Post Office, which is entirely
13 consistent with his case, which was it was to fund his
14 shop, having made bad supply arrangements.
15 So our submission is that the arguments which
16 certainly appears in Mr Stein's preliminary grounds,
17 that Horizon was central to this case, was obviously --
18 we don't need to go to it perhaps, but this is page 7 of
19 the bundle, behind tab 1, central to his case is
20 "Initially he borrowed money from the general shop to
21 make up, as he was contractually bound to do, shortfalls
22 that were highlighted by Horizon", is just not supported
23 by any of the evidence before this court. It was not
24 his case, it was never advanced and, although this case
25 appeared in the draft and then the final case review
39
1 reports, prepared by Second Sight, in the final two tabs
2 of bundle E, from what he was then saying, only the
3 final report makes clear that the total sum he ever had
4 to make good, as agreed, was a little over £1,000. And
5 as I have said, that cannot explain his removal from the
6 Post Office of over £19,000.
7 Of course, your Lordship is right that the figure in
8 the indictment on false accounting was the total of
9 £19,000, and didn't take account of the extent of the
10 £1,100, and again, without being over-technical, the
11 financial sum is not itself a material (Inaudible) but
12 nonetheless, it is part and parcel and clearly there is
13 a balance there of £18,000 which is not unexplained, it
14 is all totally explained.
15 So what we submit, if this had nothing to do with
16 him paying himself money that he had taken from his
17 business to make good the shortfall, which had it been
18 his case, would have been crucial to reveal at the time,
19 and indeed in litigation, then it was his personal
20 (Inaudible) this was never and is not a case which was
21 dependent on Horizon data.
22 So it is for these reasons that this appellant's
23 case, both, we submit, that the CCRC's central reason
24 for raising the reference can apply and his case is not,
25 arguably, unsafe, either on grounds of first or second
40
1 category abuse of process.
2 Those are my submissions, my Lord.
3 LORD JUSTICE HOLROYDE: Thank you, Mr Altman. There is
4 a small point I would like your help with, please.
5 If we go to tab 16, which is the statement of
6 Ms Bailey, on page 53, the first page of that statement,
7 just by the second hole-punch, she said:
8 "She arrived, introduced herself to Mr Fell, told
9 him the reason for my visit and that I needed to check
10 the cash that was not matching up with what the Horizon
11 computer system was showing."
12 Can you just explain to me what that means in
13 practical terms.
14 MR ALTMAN: What it means is, in these kinds of cases, and I
15 strongly suspect it was the same (Inaudible), is that
16 when sub-postmasters falsely account, it means that they
17 are showing they have more cash than they actually do.
18 But the problem is, it is a self-defeating exercise
19 because they find themselves making declarations which
20 are untrue in terms of the cash on hand, as it is
21 called, and because of that, the cash on hand which
22 postmasters are declaring, goes back to a central office
23 and that will trigger cash allowance being actually
24 remitted into the branch to recover the cash that they
25 need.
41
1 I suspect what Ms Bailey is saying there is that the
2 figures that were being reported back and the amounts of
3 cash that he was calling in just didn't match or were
4 outwith what was understood that the branch would
5 require, so that might have triggered the audit.
6 LORD JUSTICE HOLROYDE: So is this Mr Warmington's
7 (Inaudible) that altering the figures of the cash in
8 hand has the result of further delivery of cash was
9 made?
10 MR ALTMAN: Mr Warmington's point, if I could just pick up
11 the email, Mr Warmington's point is he is complaining to
12 Post Office about the shortage of cash. Well, yes,
13 I suppose it is and considering he didn't have enough
14 cash to keep his branch open and running, is a pretty
15 solid indicator that he was running a deficit. If that
16 is what your Lordship is asking, that seems to be what
17 Mr Warmington was saying but in our submission, that was
18 a typical symptom of a sub-postmaster overdeclaring cash
19 that they actually had. In other words, they didn't
20 have a cash (Inaudible) branch because they were not
21 declaring it and the cash actually wasn't there, it was
22 attending to it. If one declared cash on hand of, let's
23 say, £20,000, but that was all false, then in order to
24 carry on running the branch, the postmaster needed to
25 get more cash in and that was a typical symptom of false
42
1 accounting.
2 MR JUSTICE PICKEN: Mr Altman, I think this point has been
3 made clear already, but if you go to the attachment to
4 that witness statement at page 59, which is Jane
5 Bailey's internal report to John Longman, under the
6 heading of 23 October, she says:
7 "I was asked to visit Newton Bergoland by
8 ...(Reading to the words)... due to concerns over the
9 amount of cash in the branch and the amount of REMs
10 being requested."
11 MR ALTMAN: That confirms the reason why.
12 MR JUSTICE PICKEN: Exactly. That is Mr Warmington's --
13 MR ALTMAN: It seems so, yes.
14 LORD JUSTICE HOLROYDE: It seems inevitable that this came
15 to light very quickly.
16 MR ALTMAN: I don't know how that is, my Lord, and
17 I wouldn't like to say, that that would inevitably come
18 to light very quickly because it depends on the
19 processes here in the central offices where these sorts
20 of things are dealt with. I don't know.
21 LORD JUSTICE HOLROYDE: All right, thank you very much.
22 Thank you very much, Mr Altman.
23 Mr Stein, do you want to reply.
24
25
43
1 Submissions in reply by MR STEIN
2 MR STEIN: Yes, my Lord, briefly.
3 The point has just been made. Can I take you
4 please, to page 36. I recognise immediately there is
5 an element of this that cuts both ways but can I take
6 you to the bundle, page 36 and the interview of Mr Fell.
7 Helpfully here, his position is set out to the
8 right-hand side -- have I given the wrong numbering?
9 Should it have been -- I've got two numbers on this
10 page. It is 44 and 36, the interview of Mr Fell.
11 LORD JUSTICE HOLROYDE: This is his prepared statement?
12 MR STEIN: That's right, being dealt with within the
13 interview, and obviously, he provides his name and age
14 and details, and sets out therefore, within the prepared
15 statement, an interview:
16 "May I state from the outset without prejudice that
17 at no time have I ought to steal or defraud from Post
18 Office Limited any stock or cash whilst in my custody."
19 Then he explains that when he was appointed the
20 sub-postmaster in 76, and then goes on to refer on
21 23 October 05:
22 "Ms Bailey, community business development manager,
23 entered the premises to investigate [this is the point]
24 a complaint that I, Stanley Fell, had made to
25 Post Office Limited cash management centre about the
44
1 lack of funds I had at my disposal to finance the
2 running of the Newton Bergoland Post Office."
3 Now, we have heard from my learned friend
4 Mr Altman -- I am not sure I remember which point -- but
5 the position that has been set out by, therefore,
6 Mr Fell, is that he is the person bringing this to the
7 attention of the Post Office, and that is the point that
8 is being made at a later stage.
9 Now, the oddity, therefore, that is being considered
10 is, well, here is a man that, in theory, on the basis of
11 the prosecution case, on the basis indeed, as my learned
12 friend Mr Altman, as I anticipated, set out: well that
13 is what Mr Fell said. He has taken the money and he is
14 also telling the Post Office that he has taken the money
15 by alerting them to that is what happened. We
16 recognise, because frankly, we are not unrealistic, that
17 we have to ask this court to accept that the points that
18 are in favour of Mr Fell, which are that the background
19 to this is unsatisfactory, the unexplained losses that
20 he had to make up, we learn nothing from the respondents
21 about that, as to whether that was Mr Fell's fault. He
22 couldn't use the system, his assistants were not doing
23 it right ...
24 We have nothing about that, all we have is evidence
25 in the background to the time whereby the audit was
45
1 made, that there were unexplained transactions in which
2 he had to make up the losses.
3 That evidence was not available to his legal team
4 and the oddity is, I agree with Mr Altman, that's not
5 an oddity, agreeing with Mr Altman, but the oddity is,
6 in agreement with the way my learned friend set out the
7 respondent's facts, his own legal team were not made
8 aware of that.
9 That is why I have prayed in aid so many times the
10 reference to the generic review. People were in a very
11 difficult position. He wasn't aware of the nature of
12 the difficulties and how they could build up. It is to
13 that that any legal team acting on his behalf, when
14 instructed and either by him or by through disclosure
15 from the Post Office, they would have been able to start
16 making their inquiries and say: what on earth was going
17 on here, what was going on in the accounts. Sums of
18 money being mentioned by my learned friend Mr Altman,
19 well, £1,000 is not similar to 19,000 -- when the
20 computer system has an unexplained loss, or
21 a difficulty, so that the sub-postmaster has to make it
22 up, the computer system doesn't decide: well, I will
23 make a small loss or a big loss, it doesn't know. Or
24 itself, it's a number. It could be £5 or it could be
25 5,000, or more, so there's no thinking involved in the
46
1 Horizon system. So the numbers not matching, £1,000
2 being only one 19th of £19,000, makes no difference.
3 The fact is there were problems before and in the
4 period after the First Choice contract was made and,
5 therefore, there were problems in the accounting system
6 in this particular Post Office and we ask the court to
7 accept that against the lack of disclosure of problems
8 with Horizon that was ongoing at this time, by the
9 Post Office, their fault, not Mr Fell's, their fault
10 entirely, there wasn't an ability for Mr Fell or his
11 legal team to put this into perspective and to ask the
12 right questions.
13 MR JUSTICE PICKEN: Mr Stein, do you say this a case where,
14 actually -- I know you say it is a limb 1.
15 MR STEIN: Yes.
16 MR JUSTICE PICKEN: But if it is not a limb 1 because the
17 duty of disclosure didn't arise, for the reasons you
18 have explained, because the reliability of Horizon was
19 not put into play by your client, then nonetheless,
20 limb 2 comes to the rescue.
21 MR STEIN: I do. I do and, my Lord, forgive me putting it
22 this way, you beat me to it because, we say, and case
23 law supports this, in the position that Mr Fell was in,
24 the abusive nature of the acts by the Post Office
25 throughout this period were an affront to justice, all
47
1 the arguments we have been hearing over the last few
2 days. And the case law supports that disclosure that is
3 necessary to assist with an application to stay is also
4 subject to disclosure rules and should have been
5 provided. We know that didn't happen. He was entitled
6 via his legal team to make that application.
7 I know that in front of a judge, a judge might say:
8 hang on, Mr Stein, look at what Mr Fell said and that
9 might go to a point that weakens such an application but
10 nevertheless, against the substantial nature of the
11 abuse that has been identified in relation to the
12 Post Office, and bearing in mind that this is not
13 a case, whilst of course serious, not a case of the
14 height of seriousness of the type that so many times
15 this court is considering, it is not at the level of
16 a murder or similar, we are looking and are entitled to
17 look into the relative position on the scale of cases,
18 not the highest or the worst or the most serious of its
19 type, as against the abuse which has been perpetrated.
20 On that balancing, those balancing factors, and with
21 enough evidence, the unexplained disclosures in the
22 background, we suggest that the fault, if you like, for
23 the problems with disclosure, there is enough here to
24 take Mr Fell's case home, we suggest, within both limbs
25 but certainly as an affront to justice.
48
1 MRS JUSTICE FARBEY: Can I just clarify, you are not saying
2 that anyone who was prosecuted by the Post Office in
3 a certain period has been subjected to limb 2 abuse?
4 Does that mean we were (Inaudible), we were not
5 analysing the facts of each case, or are you saying
6 there that, for instance, the 729 calls to the helpline,
7 the -- well, the features of his case, leaving aside
8 limb 1 abuse, where you say that -- and concentrating
9 on, as Mr Busch put it, the relationship between the
10 court and the prosecutor and features getting into
11 limb 2, that he did -- he had made 729 calls, he had
12 tried at least to pay some money back, what --
13 MR STEIN: Unexplained losses, he is in the same position as
14 other sub-postmasters, not knowing what is going on, the
15 lack of disclosure about any bugs in the system more
16 generally, he is in the same contractual position which
17 is an unequal contract, without question, with the
18 Post Office, as argued by the Post Office through the
19 civil litigation proceedings. So that we suggest that
20 all of those features allow him to, and ourselves on his
21 behalf, to put him within the categories of both abuse
22 of process limbs but if we are considering the question
23 of limb 2, then limb 2, affront to justice, because
24 whilst the point being made, as I anticipated, by
25 Mr Altman, is, it is nothing to do, he says --
49
1 MRS JUSTICE FARBEY: He says they are explained losses, not
2 unexplained losses.
3 MR STEIN: Exactly, as I anticipated earlier, that Mr Fell
4 makes certain remarks. What we are left with,
5 therefore, on behalf of Mr Fell, are indications that
6 should have allowed his legal team, if the truth had
7 been known overall about the problems with Horizon, to
8 look into this and consider: where were the problems
9 with your accounting.
10 Without that, either then or now, because we cannot
11 go back now in time, to look at his position, we cannot
12 instruct a Mr Henderson or similar to look into this
13 position, because time has gone by, through which we
14 have an ability to look into this. We cannot
15 reconstruct his position. And the point we are saying
16 is that there are indications that mean that there
17 should have been an investigation into that. The point
18 made by Mr Altman is Mr Fell didn't say it. All we say
19 on his behalf --
20 MRS JUSTICE FARBEY: I am not sure that is available. He
21 also says "and he did say other positive things".
22 MR STEIN: It is a double barrel. It is, first of all, he
23 didn't say it and secondly, he said other things.
24 But he didn't also say about the unexplained
25 repayments and what we say, therefore, is that Mr Fell
50
1 can be excused in his position. And we also, I have
2 reminded the court, as indeed my learned friend
3 Mr Altman did, Mr Fell, after the audits and after the
4 procedures fell into place, so that he was then under,
5 essentially, investigation, let's be plain about this,
6 he didn't react well. He found it very difficult. And
7 he tried to take his own life.
8 LORD JUSTICE HOLROYDE: Thank you very much, Mr Stein.
9 MR STEIN: My Lord, can I assist any further?
10 LORD JUSTICE HOLROYDE: No, thank you very much.
11 Right, then Mr Moloney, do we turn to the case of
12 Wendy Cousins?
13 MR MOLONEY: If it pleases my Lords and my Lady, yes.
14 Submissions by MR MOLONEY
15 MR MOLONEY: Sorry, my Lords for that slight delay.
16 My Lords and my Lady, we have furnished the court
17 with a very short speaking note. It is only really as
18 a aide-memoire in due course because of course, my Lords
19 and my Lady have indicated that you have read all the
20 skeleton arguments in the case but we thought, you
21 having done that, we would be able to take our
22 submissions relatively briefly.
23 LORD JUSTICE HOLROYDE: Thank you.
24 MR MOLONEY: In this speaking note, the circumstances of the
25 appellant (Inaudible).
51
1 LORD JUSTICE HOLROYDE: Can I just pause you a moment. We
2 have again got a contemporaneous --
3 MR MOLONEY: That is Mr Henderson, my Lord.
4 LORD JUSTICE HOLROYDE: Thank you very much.
5 MR MOLONEY: My Lords, just perhaps at this junction,
6 my Lords having noticed Mr Henderson, it may be useful
7 if I were to say to the court that Ms Johnson and I have
8 discussed a possible way in which this appeal might
9 proceed and see whether or not this accords with
10 my Lords and my Lady. (Inaudible) I introduce this now,
11 I then proceed to call Mr Henderson, and call
12 Mr Henderson in a way that accords with the way that
13 my Lords and my Lady would wish to call him, in that we
14 thought it may be an appropriate way would be for me to
15 introduce him and tender him for cross-examination and
16 then any questions the court may have of him and then
17 move to final submissions after Mr Henderson's evidence.
18 LORD JUSTICE HOLROYDE: Yes, that sounds very sensible.
19 Thank you very much, my Lord.
20 MR MOLONEY: My Lords, paragraphs 1 to 3 of the speaking
21 note, we set out the circumstances of the appellant's
22 pleas to theft and the disposal of her case. We
23 emphasise that in this case, my Lords and my Lady, the
24 appellant raised the reliability of Horizon and indeed,
25 whether or not the Post Office could prove any loss in
52
1 relation to these theft counts, in a defence statement
2 and proceeded to defend these charges until,
3 essentially, almost the door of the court, when there
4 was an agreed basis of plea between Post Office Limited
5 and the appellant. The terms of which my Lords and my
6 Lady will be aware of.
7 It is common ground between the parties, my Lords
8 and my Lady, that this appeal turns on whether Horizon
9 generated evidence that was essential to the prosecution
10 of the appellant. It has to. Independently of the
11 Horizon issue, the appellant has identified in her
12 skeleton argument a number of features of unreliability
13 of the case against her. We have set those out at
14 page 2 of our speaking note. They are explained more
15 fully in paragraphs 9 to 50 of the skeleton argument and
16 the individual factors which are set out herein are also
17 reproduced at paragraph 53 of our skeleton argument.
18 But essentially, no evidence that she had stolen the
19 pouch, as we say and lots of other factors there set out
20 within A to H.
21 We concede that those features are insufficient on
22 their own to render her convictions unsafe but we rely
23 on them as adding weight to her appeal, should the court
24 decide that, in fact, Horizon was in issue in this case.
25 If the court decides that Horizon was in issue in
53
1 this case, was essential to the case, I should use the
2 right terms, then we say that her convictions are unsafe
3 on ground 1.
4 We set out at paragraph 9 of our speaking note, the
5 factors which we pray in aid in support of those, but we
6 think it is best not to rehearse them before
7 Mr Henderson, as it were, before he gives his evidence,
8 and just simply to call Mr Henderson at this juncture to
9 be questioned as to the contents of his report.
10 MR JUSTICE PICKEN: Before you do that, can I ask you, do
11 you rely on ground 2 if you fail on ground 1?
12 MR MOLONEY: We don't think we can, my Lord. The way in
13 which our submissions proceeded before this court on
14 Monday and yesterday were that the ground 2 abuse
15 essentially turns on whether or not Horizon was
16 essential to the case, because, in those circumstances,
17 in short form, the respondent should not have been
18 prosecuting these cases because of its attitudinal
19 resistance to the unreliability of Horizon. And so that
20 is the focus of our submissions on ground 2, and so --
21 but it follows my Lord, I should make this clear, but in
22 her case, if we succeed on ground 1, we would say that
23 we inevitably succeed on ground 2.
24 MR JUSTICE PICKEN: I understand that.
25 MR MOLONEY: Thank you, my Lord.
54
1 LORD JUSTICE HOLROYDE: Let Mr Henderson then make his oath
2 or affirmation.
3 MR MOLONEY: Thank you.
4 MR IAN HENDERSON (sworn)
5 Examination-in-chief by MR MOLONEY
6 LORD JUSTICE HOLROYDE: Thank you, Mr Henderson.
7 MR MOLONEY: Mr Henderson, would you give the court your
8 full name, please.
9 A. My name is Ian Rutherford Henderson.
10 MR MOLONEY: Would the court require me to go through
11 Mr Henderson's expertise or may I take that as read --
12 LORD JUSTICE HOLROYDE: Ms Johnson helpfully indicated it is
13 not necessary and, of course, we have Mr Henderson's
14 report, so we will take that as read.
15 MR MOLONEY: I am grateful for that indication, my Lord.
16 Mr Henderson, may I ask you, do you adopt the
17 contents of your report?
18 A. Yes, I do.
19 MR MOLONEY: May I simply tender Mr Henderson for
20 cross-examination then, my Lord?
21 LORD JUSTICE HOLROYDE: Yes.
22 Cross-examination by MS JOHNSON
23 MS JOHNSON: Mr Henderson, can you hear me okay?
24 A. You are a little faint but I am wearing headphones, so
25 I will do my best.
55
1 Q. Mr Henderson, we have the report that you have prepared
2 in the case of Wendy Cousins before us and I hope you
3 have that too.
4 A. Yes, I do.
5 Q. And without going through any of the preamble, we remind
6 ourselves that you, along with Mr Warmington, are
7 directors of Second Sight.
8 A. That's correct.
9 Q. And as you have set out in your report -- my Lords and
10 my Lady, tab 2, page 31 -- you were the coauthor of the
11 interim report into the Horizon system, dated July 2013,
12 briefing report part 1, July 2014 and briefing report
13 part 2, the following year, April 2015; is that right?
14 A. That's correct.
15 Q. And your remit was wide, I believe, not just involved
16 with the Horizon computer system but various other
17 aspects, such as operational processes and so on and so
18 forth?
19 A. That's correct.
20 Q. So for those years you were effectively living and
21 breathing Horizon and all its variables?
22 A. Correct.
23 Q. Now, in your report, and can I invite you, please, to go
24 to page 35, you say at paragraph 17:
25 "This matter relates to cash payments associated
56
1 with pensions and allowances [P&A] vouchers, often
2 described as foils, dockets or green giros."
3 And I am sure you will accept that your report,
4 I can take you to other paragraphs if necessary, but
5 your report is predicated upon the basis that
6 Mrs Cousins' case involved pension and allowance
7 vouchers; that is right, isn't it?
8 A. I didn't quite hear the last -- pension and allowance --
9 what word did you use after that?
10 Q. Vouchers.
11 A. Vouchers.
12 That is the term I found most frequently used by
13 Post Office and as I said in my report, I therefore
14 adopted that term, even though, as I think the court is
15 aware, we are primarily talking about what is known
16 colloquially as green giros or giro cheques, in terms of
17 this particular prosecution.
18 Q. Yes, and you were using pension and allowance vouchers
19 and green giros, effectively, as synonymous?
20 A. I was reflecting the way that in my research, I had
21 found Post Office had dealt with this matter without
22 making a clear distinction between what is clearly
23 different methods of payment and different documents.
24 There does seem to be general sort of confusion between
25 what is a green giro, which is a term not generally used
57
1 by Post Office, and some of the other documents that are
2 used to facilitate payments by the Department of Work
3 and Pensions.
4 Q. Mr Henderson, I am going to suggest that is not right at
5 all, because if we look at your report, you have
6 extensively quoted from a paper prepared by Post Office
7 to assist you in your Second Sight reporting, haven't
8 you? It is your footnote (Inaudible).
9 A. Yes, footnote 1, I have referred extensively.
10 Q. Yes. And if we go to page 38, please. This is you
11 quoting the Post Office information. You start at the
12 top of the page by saying this:
13 "Post Office has previously stated the following:
14 benefit payment methods. There are various methods by
15 which benefits can be received by customers."
16 Then the first one is set out there, and it is
17 pension and allowance books. Do you have that?
18 A. Yes, I do.
19 Q. And I am not going to go through it all but it is P&A
20 books provided by DWP to customers entitled to benefits
21 and then you repeat what the Post Office informed you as
22 to the way in which that method operated; all right?
23 A. Yes.
24 Q. And then if you go to page 40, please, Mr Henderson,
25 again quoting Post Office's own information, we see
58
1 paragraph 9, an entirely separate section headed "Green
2 giros." Have you got that?
3 A. Yes, I have.
4 Q. And customers who lose their POCA card or customers who
5 are on temporary benefits may be sent green giros by the
6 DWP. These are cheques, also known as DWP cheques,
7 which set out the payment amount and can be cashed in
8 the usual way.
9 So Mr Henderson, would you accept first of all, that
10 insofar as Post Office is concerned, these are two
11 separate methods by which benefits can be received by
12 customers?
13 A. I accept that but I also note at the foot of page 40,
14 where it says "Overclaims occurred with P&A books and
15 green giros", and bearing in mind this prosecution was
16 dealing both with overclaims and reintroductions, that
17 topic, as far as it related to the Department of Work
18 and Pensions, potentially related both to P&A books and
19 green giros, although I accept that Ms Cousins was
20 prosecuted only in respect of green giros.
21 Q. Yes, and the reason why this may be significant is,
22 first of all, I am sure you would accept, that there are
23 different methods whereby the customer receives these
24 two forms of benefit. In a pension allowance they would
25 receive a book with a series of vouchers within that
59
1 book, and when they come to cash those, the book is
2 scanned by the postmaster -- I am sure you would accept
3 that?
4 A. Yes, subject to the comment that it is actually more
5 complicated than that. When I looked into this, I found
6 that there were at least 10 different sources of
7 allowance from different organisations, including for
8 example, the Ministry of Defence, the Royal Air Force,
9 and so on, all of which had slightly different systems.
10 Q. Yes, I completely agree, Mr Henderson, a pension
11 allowance book encompasses a wide spectrum of benefits
12 but the difference, or one of the differences, and I am
13 just going to go through a handful with you, whereas
14 pension allowance vouchers come in a book, green giros
15 are sent to the customer a single green giro at a time,
16 so they are not, as it were, torn out of a book; do you
17 accept that?
18 A. I do and that is also my understanding.
19 Q. And then pension and allowances, as you have indicated
20 on page 35, your paragraph 19, (inaudible) vouchers,
21 once they have been cashed at the Post Office, are sent
22 to a processing centre in Lisahally, which I think is in
23 Northern Ireland?
24 A. That my understanding.
25 Q. Yes. Whereas, Mr Henderson, the green giros are not
60
1 sent to Lisahally, they are sent to the Alliance &
2 Leicester and then it became Santander, in Bootle, in
3 Liverpool. Would you accept that?
4 A. Well, again, I think it is slightly more complicated
5 than that, because there was a predecessor organisation
6 which was Giro Bank, which is where the term giro was
7 originally derived from, as I understand it, so the
8 predecessor organisation was Giro Bank. It then became
9 Alliance & Leicester and as you will see in my report,
10 Post Office have used the term Santander to refer
11 collectively to the processing of green giros.
12 Q. Yes, but at the time with which this court is concerned,
13 would you accept that the green giros were sent to
14 Alliance & Leicester in Bootle; would you accept that,
15 Mr Henderson?
16 A. That is my understanding, subject to, you know, checking
17 particular dates and so on, but in general, I would
18 accept that.
19 Q. Well, thank you, and we have a slight difficulty because
20 we cannot hand you documents but I have shown Mr Moloney
21 one of the green giros involved in this case -- both
22 my Lords and my Lady, it is not the one in the bundle,
23 because that is the print and that is rather poor but
24 another one which we have, and you will have seen it
25 makes it clear it went to Bootle.
61
1 MR MOLONEY: I can confirm that, my Lords and my Lady.
2 MS JOHNSON: I am most grateful to my learned friend.
3 The reason why this may be relevant, Mr Henderson,
4 is this. Your report is predicated on all the cheques
5 going to Lisahally and you make criticism as to the
6 checking regime conducted there, don't you?
7 A. Well not just Lisahally and if I can just sort of step
8 back a moment, when I prepared my report, I started by
9 conducting a review of the relevant documents, the
10 relevant sort of evidence and I quoted extensively from
11 Post Office documents.
12 My expectation at the time was that we would follow
13 the procedure described in the order of the court
14 from November last year, where the respondents would
15 serve expert evidence and then would engage
16 constructively in preparing an agreed joint memorandum
17 and, as you know, that didn't happen.
18 So a number of the issues that I have raised in my
19 report, I hesitate to say that they were speculative but
20 they were designed to establish a dialogue with your
21 expert, so that we could provide a clearer explanation
22 for what is clearly a rather complex matter.
23 Q. Yes but of course you, as I indicated a little earlier,
24 you have been immersed in this subject for many years,
25 haven't you, Mr Henderson?
62
1 A. My first involvement was through the initial mediation
2 scheme which considered 150 applicants, former
3 postmasters. We analysed those cases and out of the 150
4 applicants, only 13 related to pensions and allowances.
5 Unfortunately, I don't have a breakdown of what
6 proportion of those were green giros, as opposed to
7 pension book issues, but I suspect the majority may well
8 have been green giros, but that was a relatively small
9 proportion of the overall work that I performed.
10 Q. Yes. So does it come to this, that you are still not
11 entirely clear as to the specific checking regimes
12 involved with Green giros?
13 A. Well, in my report, and I have raised this on a slightly
14 speculative basis, I am expressing opinions in terms of,
15 well, what was the reconciliation between Alliance &
16 Leicester or Santander and Post Office. We know that
17 they had a client relationship. We also know that there
18 were relatively infrequent reconciliations. We also
19 know that there were relatively infrequent transaction
20 corrections being issued as a result of errors being
21 detected.
22 I am speculating that the description that has been
23 provided by Post Office in terms of how the overall
24 system operated was perhaps -- it didn't necessarily
25 operate in the way that it was meant to operate. But
63
1 I raised that more in the expectation that I would be
2 able to have a dialogue with your expert and reach
3 an agreed position in terms of providing the court with
4 a joint memorandum.
5 Q. I see. So if I was to suggest that green giros were
6 checked more frequently than pension allowance vouchers,
7 you couldn't say one way or the other; is that what it
8 amounts to?
9 A. That is my position.
10 Q. Thank you.
11 Can I turn to a different topic, and if we go to
12 your report, please, at page 48.
13 A. Yes.
14 Q. And here we are dealing with what aspects of Horizon may
15 have been again in this particular case and in
16 paragraph 28, you set out a number of headings there,
17 and just so that the court understands, these are
18 headings which you culled from the schedules which were
19 placed before the court in Ms Cousins' proceedings?
20 A. That's correct.
21 Q. We don't need to look at the schedules but if we could
22 please go through them, just to understand what we are
23 really dealing with. 28(a), the first Horizon matter on
24 those schedules, (Inaudible), and I think that refers to
25 counter position; is that correct?
64
1 A. Yes and I don't know if this is of assistance but one of
2 the witness statements of the Post Office investigator,
3 which is at tab 32, actually sets this out in quite
4 a lot of detail. It is page 180 and 181 of the bundle,
5 so I would hope that the description is not
6 controversial.
7 Q. The description is not controversial, but I just want to
8 appreciate, through you, what it amounts to.
9 So ID is the counter position and I think you can
10 confirm that there was only one counter at this relevant
11 branch?
12 A. That's correct.
13 Q. "User", second element, that is the ID of the person
14 entering the transaction, and having read the papers,
15 you will appreciate that Mrs Cousins and her some time
16 assistant shared the same user ID?
17 A. And in fact, it may have been slightly more than that.
18 One of the issues raised at one point was whether
19 Ms Cousins' husband or indeed son, ever worked in the
20 business. But what is clear is that the same user ID
21 was used by everybody, the same user ID and indeed
22 password, so that electronically, it is not possible to
23 link that entry or any of those entries to an individual
24 person.
25 Q. Yes, well we perhaps don't need to worry about the
65
1 husband for the moment.
2 So that's user. F is shop unit and again, you can
3 confirm there was only one shop unit at this branch?
4 A. That's correct.
5 Q. Then we have the giro number and giro date which
6 emanates from the DWP. And then we have week number,
7 encashment date, day and time, so those are all, as it
8 were, mechanical features setting out the accounting
9 week number. The date, for example --
10 A. Can I just step back to the columns that are headed
11 "Giro number and giro date", which, on page 279 of
12 tab 48, the first page of this schedule, are blank in
13 terms of the first 18 items.
14 Now, what that indicates was that that entry is
15 derived from not just DWP but, actually, the giro cheque
16 itself and in circumstances when the giro cheque has
17 gone missing, it is not possible to know the relevant
18 giro number and the giro date and all of the other
19 information on that schedule, with the exception of the
20 last two columns, is derived exclusively from the
21 Horizon system, rather than from directly, DWP.
22 Q. Where the giros were retrieved, we would have the giro
23 date and giro number, wouldn't we?
24 A. Correct.
25 Q. And those matters I have just asked you about, week
66
1 number and encashment date, day and time, those are
2 mechanical features of Horizon which would pertain to
3 all Post Office business, wouldn't it?
4 A. That is correct.
5 Q. It is Thursday, 25 March. It wouldn't just apply to
6 this, it would apply to any relevant transaction on that
7 day?
8 A. That is my understanding.
9 Q. Yes.
10 And then we have "Session ID", that is the recorded
11 session number of the transaction, "Mode", which is
12 simply "Serve customer; "Product number", I think you
13 can confirm that when Mrs Cousins was engaged with this,
14 she would look at her Horizon screen and there would be
15 a particular icon which said "Green giro", and she would
16 press that green giro icon?
17 A. That's correct but can I just backtrack to the session
18 ID and highlight the point that the session ID is not
19 a unique session number. In other words, multiple
20 transactions may have the same session ID and if you
21 look in that first batch of 18 transactions, you will
22 quite readily see that that happens. There are two
23 transactions that end 40-1, and there are three
24 transactions that end 689-1, even though they clearly
25 relate to different customers. At different times.
67
1 Q. Then, let's just finish this list, if we could. The
2 quantity -- that is the amount of cheques entered, and
3 sale value.
4 So what Mrs Cousins does is she presses the green
5 giro, having done her checks to ensure it was a valid
6 green giro and then she would manually enter the amount
7 which is to be handed over to the customer?
8 A. That's correct.
9 Q. Yes. Now, insofar as the processes or procedures are
10 concerned, we have been through what happens when the
11 customer presents the giro and what Mrs Cousins does.
12 And then you will have read her interview, and I could
13 take you to it if needs be, but I am sure you could
14 confirm that Mrs Cousins said that every Wednesday,
15 which was the end of the accounting week, after she had
16 closed at 5.30, she would reconcile.
17 What that means, if we can visualise it, is that she
18 would print out her summary of green giros cashed, let's
19 say, 10 green giros cashed that week and she would
20 compare that with the physical green giros, which
21 I think she said she pinned on the wall and they would
22 match. Horizon says you have paid out 10 and here are
23 10 green giros; yes?
24 A. Ms Johnson, sorry, can we just step back.
25 I may have misheard you but did you cover the last
68
1 two columns on the schedule at tab 48? The columns that
2 are headed "Name and status" or are you going to cover
3 those later?
4 Q. Well, name and status, that just deals with the author
5 of those schedules, doesn't it, Lisa Allen?
6 A. I think it is a bit more than that. When Ms Allen
7 prepared this schedule, as you are aware, Horizon does
8 not have the facility to record the name of the
9 beneficiary, in other words the person either presenting
10 the cheque or the beneficiary of that cheque, so the
11 name was entered by the investigator, the Post Office
12 investigator, when she did this work. But, as I hope
13 you will agree, the procedure used to do that was deeply
14 flawed and at one level could be regarded more as
15 a guess than anything more definitive. I just want to
16 sort of make that point absolutely clear, that there is
17 an element of doubt as to the accuracy and, indeed,
18 completeness of the entries in the name column, within
19 this schedule -- this very important schedule.
20 Q. Well, you might not be surprised that I don't agree that
21 it is deeply flawed but perhaps a more important point
22 is that is not dependent on Horizon, is it?
23 A. No, this is dependent on the work done by the
24 investigator. The last two columns were not derived
25 from Horizon. I agree with that.
69
1 Q. Yes. So can we just go back to Horizon, because I was
2 asking you about the weekly reconciliation process, and
3 I suggested to you that if everything is going according
4 to plan, you have your 10 giros paid out, according to
5 the Horizon printout, which you would then be able to
6 compare with 10 physical giros you have pinned on your
7 wall; that is right, isn't it?
8 A. That is my understanding, yes.
9 Q. So if any duplicate transaction had crept in, that would
10 become immediately apparent to the post mistress at that
11 point, wouldn't it?
12 A. Well, bear in mind we are talking about both overclaims
13 and reintroductions. An overclaim is where there is not
14 a corresponding voucher or giro sort of cheque and
15 a reintroduction is I think what you are describing,
16 where perhaps a genuine giro cheque has not been sent to
17 the processing centre and has been held over for
18 a period of time and then resubmitted.
19 Q. Yes, but whether overclaim or reintroduction, that would
20 be apparent when the post mistress did her weekly
21 reconciliation exercise, wouldn't it?
22 A. That is my understanding.
23 Q. Yes, not least because of the formula I put to you, but
24 also, if something had crept in, suggesting that 11
25 giros had been paid out, rather than 10, that would be
70
1 reflected in the till as well, wouldn't it? Because you
2 would have (Inaudible)?
3 A. Yes. This is, again, one of the features that
4 differentiates this case from some of the others that
5 this court has considered. The overclaim or
6 reintroduction results in a surplus of cash rather than
7 a shortage of cash.
8 Q. Yes. And your words speculated, I suggest, that
9 a phantom transaction bug may have been responsible for
10 this (Inaudible)?
11 A. Yes. I have said that the new evidence of bugs, errors
12 and defects, including phantom transactions, may well be
13 an explanation for the surpluses that were found at this
14 branch or at least contributed to the surplus at this
15 branch, because on both occasions that the Post Office
16 investigator performed an audit, and I am aware that in
17 your skeleton arguments you refer to the accounts
18 balancing, in fact that is not correct.
19 If you look at the witness statement of the various
20 investigators, on the two occasions that an audit was
21 conducted, on one occasion -- and I am referring to
22 tab 24, which is one of the reports of Ms Allen,
23 page 151, a third of the way down that page, the outcome
24 of the audit, and I am quoting, "was a surplus of
25 £4.10", and then on 151 -- sorry, 153, about halfway
71
1 down, the conclusion was, "This taken into consideration
2 would make the outcome a surplus of £32.91."
3 Again, I accept that those are not the level of size
4 of surplus that I would necessarily expect for either
5 an overclaim or a reintroduction but I just wanted to
6 get that point on the record, that when the audit --
7 when both audits were conducted, rather than finding
8 a shortfall, they did in fact confirm that there was
9 a surplus on both occasions.
10 Q. But on both occasions, extremely small amounts; yes?
11 A. I would agree small amounts, yes.
12 Q. And in fact, Mrs Cousins pleaded to an amount over
13 £13,000, so nothing approaching that level.
14 A. Bear in mind that was £13,000 over something like 18
15 months.
16 If you look at the weekly cash declarations which
17 are in the bundle as well, I think, you will see that
18 the turnover of this branch was in excess of £50,000
19 every week. In some cases it was as high as £100,000.
20 So very substantial transactions were taking place.
21 I would argue that bearing in mind the volume and the
22 value of transactions, it would be relatively easy for
23 an overclaim or a reintroduction to occur and the
24 associated surplus to be lost in the overall sort of mix
25 of evidence.
72
1 In fact, this was very much the position adopted by
2 Post Office. When they first looked at the results of
3 the possible problems, they concluded, and I am quoting
4 from another document that is not in the bundle,
5 I think, which was an email from the finance centre
6 known as P and BA, regarding the missing giro pouches,
7 and I am quoting, "Hertford Heath had numerous giros
8 missing, £12,000 total this year, not consecutive weeks,
9 not frequent enough to notify security and
10 an investigation but approximately one per month."
11 In other words, it appeared to be the position that
12 this was pretty close to falling within the category of
13 business as usual, rather than an exceptional fraud
14 event.
15 Q. Well, Mr Henderson, I don't want to get diverted into
16 (Inaudible) that are not going to be essential to this
17 point but that is not how things developed. We know
18 that Giro Bank contacted the Post Office because of the
19 quantity of giros that had not been received by them.
20 And there followed, it has to be said, (Inaudible)
21 taking place which led to this confusion. That can
22 hardly be described as business as usual, can it?
23 A. I would agree.
24 Q. Can we just go back, finally, to Horizon.
25 You have speculated, haven't you, that some phantom
73
1 transaction bug may be responsible. You have no
2 evidence for that, do you?
3 A. Well, we have the evidence from the GLO trials and the
4 findings of Mr Justice Fraser, that bugs, errors and
5 defects, including phantom transactions, occurred.
6 We have got the evidence of Post Office engineers,
7 the Romec engineers of phantom transactions. If you
8 look at page 279, tab 48, and, in particular, the first
9 section, where there are 18 of those(?) cheque
10 transactions sort of listed, none of which are supported
11 by giro number or giro date, I would speculate,
12 I accept, that it would be entirely consistent with
13 a Horizon bug error defect, including a phantom
14 transaction, that if such a phantom transaction
15 occurred, it would be, in effect, identical to any one
16 of those 18 entries.
17 That is my concern about the potential impact of
18 what is now known -- and I think it is accepted as new
19 evidence -- of bugs, errors and defects.
20 Q. The phantom transaction bug, as found by
21 Mr Justice Fraser, was operative in 2001, wasn't it?
22 A. That is my understanding. But bear in mind bugs, errors
23 and defects can manifest themselves in many different
24 ways and at this stage removed, we are looking at
25 a potentially unreliable technology and, yes, it is
74
1 speculation.
2 Who knows whether such bugs, errors and defects
3 could have had the consequence that I have highlighted.
4 Q. But let's take it at its absolute highest, Mr Henderson.
5 There was some unknown bug operative here; that would
6 have been immediately apparent to Mrs Cousins, each week
7 when she had to reconcile that the printout along with
8 the giros in the pouch and that was sent off via the
9 postman the following day. It would become apparent
10 immediately, wouldn't it?
11 A. Not necessarily, and the reason why I say that is I mean
12 I have listened to the testimony of well over 100
13 sub-postmasters. A very frequent event was a problem
14 occurring and when they raised that problem with the
15 help desk, the help desk would say, "Well, don't worry,
16 it will sort itself out next week or the week after".
17 That was a very frequent response from the sort of
18 Post Office to problems.
19 So I am speculating but I could envisage a situation
20 where, if Ms Cousins found that there was a transaction
21 listed by Horizon that was not supported by one of the
22 giro cheques, she might feel, "Well, don't worry about
23 it, it is going to reverse itself or be resolved next
24 week". That was what many sub-postmasters were told
25 quite frequently.
75
1 Q. There is no evidence from the calls made by this
2 sub-postmistresses to that effect?
3 A. There may well be no calls but that may have been in her
4 mind at the time, that an apparent discrepancy would
5 resolve itself automatically, perhaps the following
6 week.
7 Q. But the difference here is not only, as I have
8 suggested, would any Horizon problems be apparent but,
9 more significantly than that, this type of overpayment
10 reintroduction fraud depends on other features, such as
11 the giro cheques, the evidence of the customers and the
12 pattern.
13 You have your criticisms of that, which we
14 appreciate, but those were all features of this case,
15 weren't they?
16 A. I am sorry, can you repeat that?
17 Q. Appreciating as we do, having read in your report that
18 you have criticisms as to the way the investigation was
19 conducted, but nevertheless it depended on the physical
20 giros and the copies thereof, the customers who said
21 "I never went in and cashed two in one go", and the
22 pattern that that demonstrated. Those were all features
23 of this prosecution, weren't they?
24 A. They were, but at the same time, and referring back to
25 page 279, the first 18 items, the first 18 entries on
76
1 that schedule are not supported by physical vouchers or
2 green giros. They are supported exclusively, or almost
3 exclusively, by information derived from Horizon.
4 What I am saying is I am quite concerned about the
5 reliability of a prosecution that is relying on, in
6 effect, a single source of evidence in relation to those
7 items. A combination of that, together with the flaws
8 in the identification of beneficiaries, causes me
9 further concern.
10 Q. Finally, as you have set out in your report, of course,
11 this type of fraud, overclaim and reintroduction fraud,
12 happened before Horizon was installed anywhere in the
13 country, wasn't it?
14 A. It certainly -- yes, I think that is correct. That is
15 not something I have addressed but Post Office in their
16 evidence certainly refers to both overclaims and
17 reintroductions as not necessarily being a new type of
18 fraud.
19 MS JOHNSON: Thank you.
20 LORD JUSTICE HOLROYDE: Yes, thank you.
21 Mr Moloney.
22 Re-examination by MR MOLONEY
23 MR MOLONEY: Thank you very much, my Lord.
24 Mr Henderson, in your experience, does Post Office
25 or does it not use P&A as a generic term to incorporate
77
1 green giro?
2 A. The research that I did showed that P&A, or P&A
3 vouchers, was often used as an overarching term to
4 include all elements of ultimately payments on behalf of
5 the Department of Work and Pensions.
6 Q. It was put to you, well, you were asked, would you be
7 able to disagree with the proposition that green giros
8 were checked more frequently than P&A, do you remember
9 that?
10 A. I remember that being put and I think my response is
11 I do not know, because I was then unable to have that
12 dialogue with an expert from the respondent.
13 Q. Have you ever seen any evidence from Post Office Limited
14 or anywhere else that green giros were checked more
15 frequently than P&A?
16 A. I think I would have to answer that, you know, the
17 absence of evidence is not evidence of that proposition.
18 So the short answer is I don't know.
19 Q. The reconciliation process described by Ms Johnson,
20 outlined to you, does that in your opinion preclude
21 Horizon having impacted the figures used for this
22 prosecution.
23 A. I am not sure we really got to the bottom of the
24 reconciliation, what was meant to have occurred. What
25 is unclear is how frequently that reconciliation process
78
1 happened, and (Inaudible) with that. I am speculating
2 that the detailed reconciliation between entries
3 generated by Horizon and transactions received or
4 processed by the Department of Work and Pensions was not
5 as frequent as it perhaps should have been.
6 I mean we were told that the so-called rota checks
7 were so infrequent that individual branches would only
8 be checked as infrequently as once per year, which seems
9 extraordinary.
10 Q. If may be that my question wasn't clear and that you
11 thought I was asking about reconciliation between
12 Post Office and DWP to Giro Bank. I was asking you
13 about the questions Ms Johnson asked you about
14 Ms Cousins' process of reconciliation each week.
15 A. Which was the matching of the printout from Horizon with
16 the physical giro cheques in her possession.
17 Q. That's it, Mr Henderson. So I will ask you that
18 question again, if I may, and ask you, does that
19 reconciliation process, as described by Ms Cousins in
20 interview and repeated before the court this morning by
21 Ms Johnson, does that preclude Horizon of having
22 impacted the figures used for this prosecution or not?
23 A. I think the answer that I gave was that Horizon was well
24 known for producing evidence or transactions that
25 resolved themselves, maybe the following week or
79
1 sometimes later. What I don't know is whether that
2 occurred with Ms Cousins or how she reacted to it, but
3 I am certainly aware from many interviews with
4 sub-postmasters that that was generally a frequent
5 experience of many of them.
6 Q. Could this court be sure, in your opinion, or not, that
7 each of the transactions in the schedule at tab 49 were
8 unaffected by Horizon?
9 A. I think the short answer is no.
10 The new evidence about bugs, errors and defects,
11 bearing in mind in particular the schedules where
12 transactions are not supported by physical giro cheques,
13 I have concern about the reliability of Horizon evidence
14 in those circumstances.
15 Q. Now, I may be in danger of asking you a question as to
16 the ultimate issue in this case by asking this question
17 and I will stop if I am asked to, but the court may be
18 assisted by your opinion in any event.
19 Was Horizon data in your opinion essential to the
20 prosecution of Ms Cousins' case or not?
21 A. I believe it was essential for the reasons I have
22 outlined.
23 Q. And what, just if I may seek the indulgence of court,
24 for you just to reiterate what those reasons were,
25 please, Mr Henderson?
80
1 A. The reasons are, I think, self-evident from the schedule
2 produced by the Post Office investigator, that almost
3 all of the entries, with the exception of giro number
4 and giro date, were derived from what is now accepted to
5 be an unreliable computer system, in other words
6 Horizon.
7 MR MOLONEY: Those are all the questions I had, my Lords and
8 my Lady, unless the court has any questions.
9 LORD JUSTICE HOLROYDE: Mr Henderson, there is one matter
10 I would just like to have your help with, to clarify my
11 own understanding.
12 As I understand it, one suggested way of
13 a sub-postmistress getting money from a Post Office
14 involved receiving a giro cheque from a customer, paying
15 out to that customer and then not remitting the giro
16 cheque to Bootle bank, but holding it back and putting
17 it through the system a second time the following week
18 in order to pay herself some money.
19 Have I correctly understood the mechanism of that
20 suggestion?
21 A. Yes, that seems to be a combination of, in the first
22 instance, an overclaim, where a payment is made to
23 a customer but without the associated document, the giro
24 cheque, being submitted to what I think Ms Johnson
25 described as Bootle, the Alliance & Leicester processing
81
1 centre; and then the second week, or subsequently, that
2 retained document, the giro cheque, being presented
3 a second time, the cash being withdrawn by the
4 sub-postmaster and it is only on that second occasion
5 that the document, the giro cheque, would be sent off in
6 the weekly bundle to Alliance & Leicester or Santander.
7 LORD JUSTICE HOLROYDE: Thank you. That is what I wanted to
8 clarify. Thank you very much.
9 Unless anybody has any questions arising out of
10 that?
11 MR MOLONEY: No, thank you, my Lord.
12 LORD JUSTICE HOLROYDE: Well, Mr Henderson, thank you. That
13 completes your evidence. You are of course perfectly
14 welcome to continue to observe and listen remotely if
15 you wish to do so.
16 A. Thank you very much, my Lords, my Lady.
17 LORD JUSTICE HOLROYDE: Mr Moloney, is that a convenient
18 point for to us break?
19 MR MOLONEY: It is, my Lord. I have less than 10 minutes'
20 submissions to conclude this appeal.
21 LORD JUSTICE HOLROYDE: Thank you.
22 Just looking ahead, in does look reasonably clear --
23 famous last words -- that we will finish the hearing
24 this afternoon. That being so, could I give a gentle
25 reminder that we await the figures for the prosecution.
82
1 MR ALTMAN: Those are in train. Ms Carey is in command and
2 she can tell your Lordship where we are -- she is always
3 in command, I have to say, together with Ms Johnson.
4 LORD JUSTICE HOLROYDE: All right, thank you very much.
5 2.00, please.
6 (12.58 pm)
7 (The Luncheon Adjournment)
8 (2.00 pm)
9 LORD JUSTICE HOLROYDE: Yes, Mr Moloney.
10 Submissions by MR MOLONEY (continued)
11 MR MOLONEY: My Lord, we respectfully submit in conclusion
12 that the court should decide that Horizon data was
13 essential to the prosecution of Mrs Cousins, for the
14 following four reasons which I will take very briefly.
15 Firstly, the procedures for processing P&A vouchers
16 were flawed. There was no evidence that they were any
17 better or that there were any more frequent checks in
18 respect of green giros and whilst Mr Henderson was ready
19 and willing to accept that that may be the case, there
20 was no expert evidence to support that assertion before
21 the court. His readiness may in fact be consistent with
22 the view taken of him by the Honourable
23 Mr Justice Fraser in the GLO proceedings, where it was
24 found that the common issues, judgments at page 472,
25 that he was a careful and honest witness and we say that
83
1 that was reflected in his evidence before the court
2 today.
3 The second reason is that the reality of those
4 procedural flaws, as far as dealing with the P&A
5 vouchers was concerned, was borne out by the fact that
6 reliance had to be placed by Lisa Allen in the schedule
7 behind tab 49 on similar amounts being attributable to
8 the same person. In fact, the same amounts being
9 attributable to the same person. That was the
10 underlying rationale for a central aspect of the case
11 and that underlying rationale is, as my Lords and my
12 Lady have seen in the skeleton argument from the
13 respondents in this case, now expressly conceded to be
14 erroneous.
15 That concession reinforces the potential for
16 duplicates to have been due to Horizon malfunction
17 within that schedule. That is our third reason, and our
18 final reason is that that becomes all the more relevant
19 in the context of the numerous other evidential failings
20 reflected in our skeleton argument, set out in our
21 skeleton argument, and then reflected in the basis of
22 plea agreed between the appellant and the respondent at
23 trial, where it was accepted that she was away for one
24 of the transactions, overseas, and that there were other
25 evidential flaws, as far as a number of the counts were
84
1 concerned.
2 In all the circumstances therefore, we respectfully
3 ask the court to quash the convictions of the appellant.
4 LORD JUSTICE HOLROYDE: Thank you very much, Mr Moloney.
5 Yes, Ms Johnson.
6 Submissions by MS JOHNSON
7 MS JOHNSON: My Lords and my Lady, in our submission the
8 appellant has not demonstrated that Horizon reliability
9 is essential to this case. Before I develop that any
10 further, it is critical to understand the nature of the
11 fraud in this case and may I invite the court to the
12 opening note, which was presented in the case. You will
13 find that behind tab 6 in our case summary and can we
14 pick it up, please, at the bottom of the first page,
15 (Inaudible). I am going to take a little time on this,
16 because this is the bed rock of the case and
17 an important plank of our argument that Horizon
18 reliability was not essential.
19 Paragraph 4, the thefts involved these giros. The
20 procedure for paying customers who presented a green
21 giro at the Post Office branch is explained as follows,
22 in counsel's opening note and over the page:
23 "Green giros are a method of payment used by the
24 Department for Work and Pensions. Giros are sent out by
25 post to customers and each giro has a date on it showing
85
1 the earliest date when it can be cashed. When a cheque
2 is presented at a counter for payment, the clerk must
3 check it is a valid claim. Cheques are valid for
4 a month. The clerk checks that the words and numbers on
5 the cheque agree and ...(Reading to the words)... proof
6 of identity, if necessary. The cheque must be signed on
7 the reverse by the payee, the agent. The clerk date
8 stamps the giro on the front and then enters the amount
9 into the office computer system by touching a green giro
10 icon on the screen and then the screen shows the amount
11 to be paid to the customer, the cash is handed over and
12 the transaction is completed. The giro is retained by
13 the clerk in their stock."
14 It then goes on to explain the Post Office's
15 accounting week ran from Thursday to Wednesday, and
16 again, we have heard from Mr Henderson, this is critical
17 in our submission, the process at the end of each
18 accounting week, that the SPM checked the actual green
19 giros physically present as against the Horizon summary
20 entered into the system. It should be the same. Once
21 the cheque was made, summary to be placed at the front
22 of the bundle, ID (Inaudible) completed and then the
23 bundle is tied up ready to be sent off the following
24 morning.
25 As the court is aware, there are two forms of fraud
86
1 at play in this case, overpaying and reintroduction.
2 Again, it is important to fully appreciate the nature of
3 those frauds. Turning to paragraph 8, please, as stated
4 in the opening note, Chesterfield data showed there were
5 a number of weeks where giro transactions were being
6 performed (Inaudible) but they had received no giros at
7 all. I underline that because that is important. This
8 is not one or two giros missing; each week when this
9 fraud was perpetrated, no giros and again, we submit
10 that is important when one considers the impact or
11 non-impact of Horizon.
12 They wanted these missing pouches to be investigated
13 and, of course, the truth was the giros were not
14 missing. Their dispatch was simply being delayed until
15 Mrs Cousins could recash them fraudulently and my Lords
16 and my Lady, that is important because in our
17 submission, both in their effective grounds of appeal
18 and indeed, repeated in their speaking note, the
19 appellant has misunderstood the nature of the Crown's
20 case. By way of example, if you have Mr Moloney's
21 speaking note in front of you, at page 2, 7(n), the
22 whole case rested on an asserted modus operandi whereby
23 the appellant stole the vouchers and reintroduced giros
24 within them.
25 That not right, as is made clear in the opening
87
1 note. They were simply not dispatched. There was
2 nothing sent to be stolen, as is made clear in the
3 opening note I have just reminded you of.
4 Then paragraph 9 of the summary, page 95, the
5 prosecution's case was that Mrs Cousins had committed
6 the theft by making some overclaims and many
7 reintroductions and then only noticed in slightly later
8 claims that the claim for a giro had never existed.
9 Elsewhere it has been described as occurring in a branch
10 with false payment on Horizon that doesn't remit the
11 associated giro. Then the example is given there. Over
12 the page and, importantly, at paragraph 10,
13 reintroductions, and that is really the focus of this,
14 were explained. A more sophisticated tactic is by the
15 reintroduction of the legitimately cashed giro. Having
16 correctly performed the giro transactions through
17 Horizon, the clerk retains the giro, rather than
18 dispatching it and then recashes it in another week.
19 The giro was date stamped when the reintroduction
20 takes place, and that is important.
21 It is then sent off with a summary and because it
22 appears on the summary and it is date stamped in the
23 appropriate week, it has a legitimate appearance, even
24 though the genuine transaction has taken place in
25 an earlier week. If a genuine mistake had occurred
88
1 where a cheque was cashed in one week but not accounted
2 for until the next, it would be expected that the
3 Horizon accounts would show a loss for the first week
4 and again in the second. This is because in the first
5 week, cash would have been given out but there would be
6 no document to account for the payment, thus producing
7 a loss. In week 2, there would be a payment document
8 but no money would have been given out, thus producing
9 a gain.
10 So, in effect, there are two sides of the same coin.
11 It is important to understand the nature of the
12 fraud, when one considers the role of Horizon within it.
13 This is self-evidently not a case involving a Horizon
14 generated shortfall, which a postmaster had to make
15 good; this is not a case in which the amount of cash or
16 stock held at a branch did not match what Horizon
17 recorded should be present. This case is dependent on
18 the physical giros, importantly with a signature and
19 with date stamp, the evidence of the customers as to
20 their usual habits and how they would not shore up giros
21 and go in and cash a number in one go. Moreover, their
22 evidence as to their regular day of the week and, from
23 those strands of evidence, the patterns that allowed the
24 prosecution to make out its case.
25 Now, in our submission, the appellant has tried to
89
1 shoehorn this case into a Horizon matrix by, as
2 Mr Henderson did, arguing that Horizon processes or
3 Horizon capability was flawed. But we would urge the
4 court to look at that with some care, because the design
5 of Horizon, the structure of Horizon, are wholly
6 different questions to the reliability of Horizon.
7 Those shortcomings, such as Horizon didn't allow
8 them to identify the individual customer, they were all
9 known at the time of these proceedings. They have
10 nothing whatsoever to do with the two judgments with
11 which this court is concerned.
12 When one actually analyses the element of Horizon
13 that is in play in this case, and in parenthesis, save
14 perhaps for a robbery or a burglary, almost any case
15 involving the Post Office is going to involve Horizon in
16 some small measure. That is not the question. The
17 question is, first of all, what was the measure and was
18 reliability essential?
19 As you heard from Mr Henderson, the Horizon elements
20 were purely mechanical.
21 Prosecution counsel, in his opening note, described
22 it in this instance as a glorified cash till and with
23 respect, we would suggest that is an accurate
24 description.
25 Accounting week number, date, day of the week, the
90
1 time, those are all mechanical features that one would
2 expect in any form of mechanism such as this, and do not
3 have any bearing on the (Inaudible) Horizon reliability
4 was essential.
5 We place great reliance on the system, the system
6 which I have intimated with Mr Henderson, that according
7 to Mrs Cousins -- and perhaps it is so important because
8 in our submission, this evidence, Mrs Cousins' own
9 evidence demonstrates Horizon reliability was not
10 essential. Let's just remind ourselves of what she
11 said. May I invite you to go behind tab 23, where you
12 will find her interview.
13 And picking it up at page 124, please, in the middle
14 of that page, Mrs Cousins is explaining the system:
15 "Most of them are the customers I know. I take the
16 giro, enter it on to Horizon, date stamp it, pay the
17 customer out and pin it to the board I have full of
18 green giros. That is where it stays all week until
19 Wednesday night, when I do the books up and they are put
20 into their envelopes.
21 "So are the giros only done up once a week?
22 "Yes, that is after I close on Wednesday night, when
23 I do all the books.
24 "So you close at 5.30 on Wednesday night, you print
25 off your final giros and then what do you do with them?
91
1 "I put them into the green pouch. I take two copies
2 off the Horizon system. One I keep in my weeklies, one
3 I put in the folder with the green giros, the green giro
4 docket, Q 6301, in there and then it is handed to the
5 postman Thursday morning."
6 Finally, if you go, please, to page 130 of the
7 interview, two-thirds down the page, Mrs Cousins says:
8 "I can say with my hand on heart, definitely I have
9 never held back on any giros in this office. I do them
10 up religiously every Wednesday and I have done since
11 I started here. I do them up, I check them."
12 At the top of the following page:
13 "I personally do them up every Wednesday."
14 So in our submission, that again is critical
15 evidence, first of all, given those elements of the case
16 that I directly outlined, that this is not a Horizon
17 essential case. The taking in of this (inaudible), even
18 forgetting the speculative phantom transaction bug
19 posited by Mr Henderson, remembering the fact it was
20 only operative in 2001, putting all of that aside, let's
21 say there was some unknown bug, it would make itself
22 manifest at this point and that is, in our submission,
23 critical; critical, given all Mrs Cousins has said.
24 There is no evidence that you have the records of
25 the call(?) log, no evidence whatsoever on that, or
92
1 indeed (Inaudible) that she ever suffered any problems
2 doing this exercise.
3 Now, criticism has been made as to certain elements
4 of the Crown's case but they are not elements that it's
5 dependent upon Horizon reliability. You might suggest
6 that Horizon could have been designed as a better system
7 in the first place but that is really not for comment.
8 They are not dependent on Horizon reliability and
9 importantly, all these criticisms were available at the
10 time. None of the evidence that has come out of the two
11 judgments affect what was available at that time of
12 these proceedings.
13 In his perfected grounds, Mr Moloney made certain
14 non-Horizon points and I want to deal with them very
15 quickly, if I may, because as you will have seen from
16 our response, we characterise that as really a question
17 of evidential sufficiency, almost akin to a half time
18 submission, and various non-Horizon questions have been
19 raised. First of all, a suggestion that someone other
20 than Mrs Cousins may have been involved in the
21 reintroduction. An assistant was mooted, but that
22 ignores the evidence that I have just taken you to from
23 Mrs Cousins' interview. It was her job. It ignores the
24 statement of her assistant, which is in the bundle.
25 I am not going to take you to it but she was clear that
93
1 she only worked three mornings a week and had nothing
2 whatsoever to do with that Wednesday evening
3 reconciliation.
4 Fujitsu logs were acquired by the prosecution in
5 this case, to ensure that they could be clear as to the
6 times of when transactions were done and importantly,
7 the proposed plea document, about which I will come on
8 to in a moment, expressly disavows any suggestion that
9 it was Mrs Cousins' assistant. So we would submit, one,
10 that has nothing to do with Horizon, all of that
11 material was available at the time.
12 Again, in his grounds, Mr Moloney relies upon the
13 collection sheets and you will have seen a selection of
14 them in the bundles. Perhaps we could just look at one
15 by way of example. It is a short point. Let me just
16 take the first one, which is behind tab 7, please. This
17 is an example of the collection sheet that was written
18 up by the postman when he came on the Thursday morning
19 to collect the various special items. This is just one
20 example and we will see here that a number of priority
21 items and then other items, you will see -- it is rather
22 faint, but it says giro vouchers and there is one
23 reported here, 26 October 2005, purportedly collected at
24 5.30. The point is made: well isn't that evidence that
25 the pouch was properly put together by Mrs Cousins and
94
1 handed over to the policeman?
2 Two points arise. First of all, all of this was
3 available at the time, but, secondly and more
4 importantly, as is made clear in Lisa Allen's witness
5 statement, again, which was available at the time, these
6 collection sheets identified giro pouches but as the
7 investigator made clear, that would mean green giros or
8 giro deposits and withdrawals which is a wholly separate
9 series of documents which has nothing to do with this
10 case.
11 So one cannot safely infer from these documents that
12 the pouch was indeed handed over and subsequently
13 stolen. As I have already said, of course, it was never
14 the Crown's case that they were stolen, but they just
15 did not (Inaudible).
16 So in our submission, all of that evidence
17 demonstrates that this case fundamentally did not depend
18 on Horizon reliability. It is for that reason that we
19 rely on Mrs Cousins' plea, because if it is not
20 a Horizon case, it is therefore not an abuse, the
21 questions of disclosure do not arise and nothing in the
22 fresh evidence viciates pleas of guilty and it is
23 important, in our submission, to remind ourselves what
24 Mrs Cousins pleaded to.
25 Can I just take you, please, to page 102, which is
95
1 again a case summary which we provided to the court,
2 where her proposed pleas are set out. It is page 102,
3 paragraph 32.
4 Now, the first point, 29 April 2009, a proposed plea
5 document was sent to the prosecution, so this is not
6 door of the court stuff, this is something that has been
7 carefully crafted by those representing Mrs Cousins.
8 Pausing there, I note there is no argument that they
9 had insufficient material, properly to advise her or
10 that this wasn't anything other than a careful,
11 considered plea.
12 In italics it says "It is proposed that guilty pleas
13 are entered on the following counts", and gives the
14 value, and then, 2:
15 "There are arguments in respect of counts 1, 3, 5,
16 10, and 17, that at least one of the suspect
17 transactions that comprise each count may have been
18 a legitimate transaction."
19 Then in respect of 7, "The defendant was on
20 holiday."
21 Pausing there, that is a carefully distinguished
22 basis of plea proposed on Mrs Cousins part.
23 Furthermore, she doesn't just enter those pleas on the
24 indictment. As we can see from paragraph 4, a schedule
25 of matters to be taken into consideration, containing 23
96
1 further charges, have been prepared and those are
2 accepted. So in the circumstances of this case, as we
3 would submit, a non-Horizon case, we pray in aid not
4 just the pleas of guilty but the way in which that was
5 crafted and the offences to be taken into consideration.
6 Mention has been made in his speaking note and
7 a moment ago, of the respondent accepting that some of
8 the investigation was flawed. That is perhaps putting
9 it a little high. What we say in our skeleton argument,
10 I only have it (Inaudible), we can find it in due
11 course, but it is page 89, paragraph 9 at the top. We
12 say this:
13 "It is accepted that there were flaws in the
14 original investigation and obvious examples are the
15 working assumption that a giro in a particular sum was
16 always attributed to the same customer."
17 And then:
18 "Importantly, however, the flaws in the
19 investigation were known to the defence at the time of
20 the original proceedings and they are not related to
21 Horizon reliability."
22 So that conception is to be understood properly.
23 LORD JUSTICE HOLROYDE: Sorry to interrupt, but why was it
24 an overstatement to say that the prosecution admitted to
25 some flaws in the investigation? I appreciate the
97
1 limitation you put upon it but why do you say Mr Moloney
2 was overstating it?
3 MS JOHNSON: I just wanted to make it clear, as we did in
4 our document, that we accept that working assumption as
5 on at least one occasion, potentially being proved to be
6 possibly wrong but it is not Horizon dependent.
7 So forgive me if I have done Mr Moloney
8 a disservice, he is the last person I would wish to do
9 disservice to, but I just simply want to put it into its
10 proper context, my Lord.
11 LORD JUSTICE HOLROYDE: Okay.
12 MS JOHNSON: Can I conclude by saying this. In our
13 submission, the CCRC's reasons do not apply in this case
14 in the way in which I have sought to explain to this
15 court. It is not a question of whether the data, the
16 Horizon data was essential, which is how it is put in
17 the grounds, it is whether Horizon reliability is
18 essential.
19 In our submission, it was not and, therefore, we
20 submit that these convictions are not unsafe on either
21 ground 1 or ground 2.
22 LORD JUSTICE HOLROYDE: Can I just ask you, Ms Johnson,
23 about page 102. We were invited to look at the basis of
24 plea.
25 MS JOHNSON: Yes.
98
1 LORD JUSTICE HOLROYDE: In fact, I don't think we have got
2 a copy of the indictment in this file.
3 MS JOHNSON: No, I think my Lord is right, yes.
4 LORD JUSTICE HOLROYDE: I don't quite understand
5 paragraph 2, but perhaps that is not important.
6 What do you say about paragraph 3, and the reliance
7 you place on (Inaudible)?
8 MS JOHNSON: In respect of the holiday?
9 LORD JUSTICE HOLROYDE: Yes.
10 MS JOHNSON: Well, my Lord, insofar as that is concerned,
11 that relates to a single count, count 7.
12 Now, I need to check this, and maybe I can come back
13 to it but I think there was some information as to the
14 relevant dates. If I may be permitted, I would like to
15 just check that, and perhaps Mr Moloney and I can submit
16 something together in relation to that because I know he
17 (Inaudible), but insofar as pattern is concerned, of
18 course, it is described as a proposed basis of plea. We
19 know that she pleaded to these counts and the
20 prosecution did not require a trial on the other counts.
21 I don't want to be too technical but whether it is
22 properly described as an accepted basis of plea, we do
23 not know one way or the other. So I take my Lord's
24 point, that on the face of it, that may seem to disrupt
25 the pattern. If it does disrupt the pattern, it begs
99
1 the question, does that bring to bear Horizon
2 reliability in any event?
3 I think beyond that, subject to one point I want to
4 check, I cannot go.
5 MR JUSTICE PICKEN: I don't know whether this provides any
6 assistance, it probably doesn't, but divider 1, the
7 provisional grounds of appeal at page 11, lists the
8 various counts by date and nature of -- count 7, which
9 is the relevant one, an overpaying rather than
10 a reintroduction. Does that help at all? I am not sure
11 it does but I just wonder.
12 MS JOHNSON: Well, thank you, my Lord, it was not the point
13 I was struggling to remember. Of course, earlier, I did
14 describe the overpayment reintroductions as effectively
15 two sides of the same coin, so beyond that, I don't want
16 to fall into speculation, unlike others.
17 MR JUSTICE PICKEN: Thank you.
18 LORD JUSTICE HOLROYDE: Mr Moloney, any reply?
19 Submissions in reply by MR MOLONEY
20 MR MOLONEY: Please, my Lord, only briefly.
21 My Lord, we made clear at the outset of our
22 submissions that unless this case was one where Horizon
23 data was essential, then the safety of conviction cannot
24 be effectively challenged. In that context, where the
25 respondent concedes, in cases where guilty pleas have
100
1 been entered in other of the cases that have been before
2 my Lords and my Lady this week, then we say that the
3 facts of the guilty pleas is only important if my Lords
4 and my Lady decide that Horizon was not essential to
5 this case, for all the reasons that my Lords and my Lady
6 have heard.
7 If my Lords and my Lady decide that Horizon wasn't
8 essential, the guilty pleas don't matter because
9 my Lords and my Lady will refuse the appeal. If
10 my Lords and my Lady decide that it is engaged, and
11 Horizon was essential, then the guilty pleas make no
12 difference either, we respectfully say.
13 We do express a degree of surprise that it is now
14 suggested without any evidence that this may not be
15 an agreed basis of plea and that the Crown may not have
16 conceded that, in fact, the appellant was away at the
17 time. That is something, when the respondent criticises
18 the appellant for not calling evidence about the
19 circumstances of the basis of plea and whether or not
20 the defence counsel advised and so on and so on, to
21 raise at this stage that it may not be agreed and they
22 may not have conceded that -- my Lord?
23 MR JUSTICE PICKEN: Only this, the same document to your
24 provisional grounds of appeal, page 13, paragraph 46,
25 explains that various counts, including count 7, were
101
1 left to lie on the file.
2 MR MOLONEY: Yes.
3 MR JUSTICE PICKEN: Therefore, it must have been accepted.
4 MR MOLONEY: It must have been, my Lord.
5 Perhaps there is a semantic distinction to be drawn
6 between being not disputed and accepted, and therefore,
7 there not being an issue of fact, necessarily, before
8 the court but that really couldn't concern this court at
9 this stage, in my respectful submission.
10 MR JUSTICE PICKEN: Just on count 7, I am so sorry to go on
11 about this, paragraph 41, I notice, of your provisional
12 grounds of appeal, explains that the Post Office
13 indicted the defendant on count 7, notwithstanding the
14 collection sheet on 26 October 2005 showed a giro
15 (Inaudible) cash that the preceding week had been
16 collected."
17 MR MOLONEY: Yes.
18 MR JUSTICE PICKEN: So it is possible, I suppose, that that
19 was just collection rather than your client having to do
20 anything on that given day.
21 MR MOLONEY: Indeed, my Lord, and we take issue with the
22 point as well, that we are unable to prove now, that the
23 contents of that pouch were green giros, as opposed to
24 any other types of vouchers. We respectfully say that
25 evidence should be put before the court, that they were
102
1 not green giros, if this court is to place any weight on
2 that.
3 But we say that we haven't misunderstood this case,
4 we haven't misunderstood the opening note, and we
5 haven't overstated that which is conceded by the
6 respondent in this case.
7 We set it out very clearly in our speaking note
8 which was given to the court this morning at
9 paragraph 9(i):
10 "There was no evidence which safely pointed to how
11 or by whom the reintroductions had been made, nor even
12 whether reintroductions had in fact occurred."
13 This is the crucial part:
14 "It is of note that reliance was placed by Lisa
15 Allen on identical sums being recorded on the Horizon
16 system. Those sums were then linked to the individuals
17 because of the sum involved. There was nothing further
18 to confirm that a sum had actually been introduced.
19 "The basis of that analysis has been fundamentally
20 and objectively undermined by the discovery examples of
21 payments being established as being to a different
22 person rather than a person assumed by Post Office
23 Limited."
24 And we have that within our skeleton argument, the
25 example uncovered by Hal(?) & Co Solicitors, which is
103
1 set out therein. We say the respondent now concedes
2 that that underlying analysis was therefore erroneous.
3 That is what we have said about that and it has to be
4 conceded that that underlying analysis of whether or not
5 it was the same person, because it was the same amount,
6 is erroneous, has objectively been established as being
7 erroneous, so that when my learned friend relies on --
8 essentially, he says this is not simply an Horizon
9 issue, this is something that involved the evidence of
10 customers as to their routine, as to when they cashed
11 these giros, then of course, that absolutely links into
12 the fundamental analysis underlying this schedule which
13 allows Ms Allen to attribute the amount to the person
14 based on the statement. And so, therefore, of course,
15 the evidence of the customers that my learned friend
16 relies on is fundamentally undermined by the concession
17 that the respondent makes as to that process underlying
18 the Lisa Allen schedule.
19 Then to say this has nothing whatsoever to do with
20 the issue before the court, we say is an overstatement,
21 my Lord, of the true position. And it is unrealistic.
22 And simply to say that all the Horizon elements were
23 mechanical in all these cases, in all the other cases
24 that have been before the court this week, the operation
25 of Horizon was mechanical, in the same way that it was
104
1 in this case.
2 As far as the system is concerned, that Mrs Cousins
3 used, Mr Henderson was very clear that the system
4 employed by Mrs Cousins did not preclude the possibility
5 of Horizon impacting on the figures which were produced
6 in the schedule.
7 My learned friend makes reference, and with some
8 justification, to the phantom transaction log not
9 applying at the time of this, but of course -- the
10 phantom transaction bug rather, not applying at the time
11 of this, but of course, that was the phantom transaction
12 bug, not all phantom transaction bugs, if I can use
13 that. And it is essentially consistent with the
14 approach taken by the respondent, which is to say that
15 bug did not apply at that time, therefore it is not
16 relevant to this case.
17 What was obvious from the terms of the judgment of
18 the Honourable Mr Justice Fraser was one could not
19 exclude other bugs being operative during the course of
20 the indictment period for each of the appellants that
21 are now before the court.
22 Ultimately, the expert evidence before this court
23 from Mr Henderson was that there was nothing before this
24 court to say that the court can rely on each and every
25 one of those entries to say that they were actual
105
1 transactions. And that is because of the inherent
2 unreliability of the Horizon software, upon which this
3 case was based, which is essentially epitomised in the
4 schedule behind tab 49 which has been shown to be
5 unreliable by the absence of Mrs Cousins from the
6 jurisdiction in respect of one count, by the fact that
7 it was shown in relation to another that it was
8 a different person than the person attributed to that
9 giro payment by Ms Allen and in other ways which were
10 ultimately conceded within the basis of plea, which we
11 say was accepted by the respondent in this case.
12 Inevitably, we say as far as that guilty plea is
13 concerned, my Lords and my Lady have seen what the
14 respondents have described as a pragmatic approach in
15 respect of their actions, taken by all of these
16 appellants in this week, when faced with custodial
17 sentences. And this is no reason to distinguish the
18 pragmatic approach taken by Mrs Cousins in this case
19 from any of the other appellants before the court, if in
20 fact, Horizon was an essential part of the prosecution.
21 The fact that all of this evidence was available at
22 the time, we respectfully say is of no import because
23 what was not available at the time was a reliable
24 evidence base, not just from the sub-postmasters which
25 we say was a reliable evidence base in any event but
106
1 a reliable evidence base beyond that which shows that
2 Horizon was inherently unreliable as an underpinning of
3 each of these cases.
4 We say that the analysis of the respondents ignores,
5 when saying that this isn't relevant because it was
6 available at the time, ignores the fact that Mrs Cousins
7 was out of the country. It relies on a Fujitsu
8 printout, as Ms Johnson states, and Fujitsu printouts
9 inevitably being produced by that very Horizon software,
10 had potential to be unreliable and so in those
11 circumstances, we respectfully say that, given the
12 contents of tab 49 and their genesis, then this case was
13 based on Horizon evidence, Horizon evidence was
14 essential to this prosecution.
15 Unless I can assist my Lords and my Lady further,
16 those are my submissions.
17 LORD JUSTICE HOLROYDE: Thank you very much.
18 MR MOLONEY: Thank you, my Lord.
19 LORD JUSTICE HOLROYDE: Now, Mr Millington.
20 Submissions by Mr Millington
21 MR MILLINGTON: Appellant number 42, my Lords and my Lady,
22 I am going to read head on, the principal contentions
23 that have been made against this appeal succeeding but
24 perhaps before I do, I didn't join in the submissions in
25 relation to limb 2, as my Lords and my Lady know but
107
1 both limbs were pleaded in the grounds of appeal,
2 paragraphs 58 and 59 refer, and if I fail to persuade
3 the court in relation to limb 1, I want to preserve
4 limb 2 as what might be described as a safety net.
5 The respondents contend that the Post Office
6 fulfilled its disclosure obligations in her case. When
7 the court comes to consider the merits of that
8 contention, I invite the court to do so against
9 a background of systematic failure by the Post Office to
10 discharge its disclosure and investigative obligations
11 over the course of somewhere between 10 and 20 years.
12 Insofar as the Post Office may have given the
13 slightest thought to its disclosure obligations, the
14 evidence suggests that if it had done so, it would have
15 deliberately disregarded them.
16 It is said that this is not a Horizon case, whatever
17 that may mean. In this case, the Post Office served
18 evidence from a Horizon witness, her name, Penelope
19 Thomas and my Lords and my Lady have a copy of the full
20 witness statement that she made. She was served as
21 a Horizon witness and no doubt the Post Office relied
22 upon her evidence. It is fanciful to suggest that this
23 is not a Horizon case. She was served as a Fujitsu
24 security analyst in order to support the suggestion that
25 there had been thefts or losses of stock. And that
108
1 witness offered a guarantee of reliability for that
2 data.
3 Had the defendant, as she was then, maintained the
4 not guilty plea, or pleas that had been offered, and
5 decided to have her trial, and had one of the lines of
6 defence to which the respondent had been alerted in the
7 defence statement, namely that the losses may be
8 attributable to computer error, had she pursued that
9 particular line through her counsel, no doubt that would
10 have been met by the evidence from this witness, who
11 guaranteed the reliability of the data that had been
12 produced in support of the prosecution case.
13 The failure to provide the facts which suggested
14 potential unreliability of the data is what was abusive.
15 The serving of that statement, that witness statement,
16 with that guarantee of reliability, called for
17 disclosure, because otherwise the prosecution would
18 potentially be relying upon a misrepresentation as to
19 the true picture, or at least depriving the defendant of
20 the opportunity to explore the question of the
21 reliability of the data. It was, in effect, withdrawing
22 that line of defence altogether.
23 That is the mischief that viciates the guilty plea
24 that was tendered and the authority that I rely on is
25 the authority in the case of Early, and in particular,
109
1 the judgment of Lord Justice Rose at page 295, in which,
2 in that well known passage, he lays out the court's
3 approach. That passage deals specifically with those
4 who have tendered pleas of guilty at an early stage.
5 So what I say, essentially, in response to what
6 I anticipate to be the respondent's contention, is of
7 course, this was a Horizon case. The Post Office made
8 it a Horizon case by serving the evidence of the Horizon
9 analyst. They did so to support their case that there
10 were thefts or losses. But they did so in fundamental
11 breach of their disclosure responsibilities by failing
12 to declare anything at all of the history of
13 unreliability of which they knew. That is what makes it
14 abusive and that is my response to the respondent's
15 contention.
16 I am going to just look at Penelope Thomas and her
17 evidence in a little bit more detail, if I may. Her
18 statement runs to many pages and it is all about the
19 Horizon system, which begins after the very first of
20 those pages. I have to say that, for the most part, it
21 reads to me like techno babble.
22 MR JUSTICE PICKEN: Just to check, I was looking for the
23 statement in the bundle but it is behind your grounds of
24 appeal, divider 1, page 21?
25 MR MILLINGTON: Yes.
110
1 MR JUSTICE PICKEN: Thank you.
2 MR MILLINGTON: It is not all together easy reading. But
3 the message in the statement is absolutely plain:
4 "The integrity of data retrieved for audit purposes
5 is guaranteed at all times from the point of gathering,
6 storage and retrieval to subsequent dispatch to the
7 requester."
8 There is reference to the ARQ data on the next page
9 of the statement, in paragraph 3 which is said to
10 support the extracted data. But for the purposes of the
11 case brought against the appellant here, it doesn't
12 appear that there was any such support for the data or
13 the audit and I have seen no evidence anywhere in the
14 papers concerning this appellant, that there was any
15 investigation or access to the ARQ data. So this appeal
16 looks very much like most of the others.
17 MR JUSTICE PICKEN: But as I understand it, the likely
18 reason for that is because a point was not raised by
19 your client, questioning the reliability of Horizon.
20 MR MILLINGTON: Can I deal with that, my Lord, head on.
21 The way that individual SPMs, managers of
22 Post Offices, reacted to what may well have been
23 shortfalls or supposed shortfalls in stock, in this
24 particular instance, it is said to have been mainly
25 cash, it varied. It varied between individuals and the
111
1 court may be attracted to favour in some way, those who
2 reacted by looking to the Post Office for help, phoning
3 the helpline and that sort of thing and maybe that would
4 be a more commendable way of reacting, but there are
5 others, and many of them have had their appeals allowed
6 in this court, who took a different route, and the route
7 that they took was to protect themselves by
8 falsification of accounts or cover up, or lies, but it
9 is a sad and somewhat ironic fact that from the
10 perspective of the individual, it didn't really matter
11 whether you took the route of looking to the Post Office
12 for help, or taking your own dishonest course of action
13 to try and cover up shortfalls. The conclusion was the
14 same. Conviction for a serious offence of dishonesty,
15 and the likelihood of a sentence of imprisonment.
16 The appellant that I represent took the route of
17 cover up, false accounting and lies.
18 But the ultimate outcome for her was no different
19 than the outcome for those who looked to the Post Office
20 for help and support.
21 MRS JUSTICE FARBEY: Can I ask a question about -- I think
22 page 23 (Inaudible), page 65, which is going back to
23 Penelope Thomas's statements and the passage that you
24 cited -- I think page 23 -- and you read out the
25 integrity of data (inaudible) purposes guaranteed at all
112
1 times. You may not be the right person to ask about
2 this but I had understood it to mean the integrity of
3 those agreeing(?) for audit purposes is guaranteed at
4 all times from the point of gathering, et cetera,
5 et cetera, and that that related to the reliability of
6 the procedures recorded on (Inaudible) on that page. So
7 we see, for instance, the first paragraph, final
8 sentence:
9 "Records of all transactions ...(Reading to the
10 words)... archive media."
11 So I had thought that, by the time you get down to
12 the paragraph you cited, Ms Thomas had been talking
13 about all the archive media. I am not going to try and
14 explain it, but I did read that as meaning the integrity
15 of data retrieval or the integrity of Horizon data is
16 guaranteed for all purposes.
17 MR MILLINGTON: I wouldn't begin, my Lady, to suggest that
18 you haven't read it in the correct way. My point is
19 that the message that goes out from this statement,
20 perhaps a little ambiguously, appears to be a message of
21 complete reliability of this system. Precisely what was
22 meant by that, I would respectfully suggest, may be
23 subject to interpretation and I am certainly not the
24 person to ask what it means. But if, as a rather idiot
25 lawyer, I happened upon those words in a statement and
113
1 I was about to advise my client about her plea, who was
2 suggesting there may be some dreadful error in the
3 accounting system, I don't think I would be very
4 confident in those instructions and I might be inclined
5 to say to her in robust terms: you can forget that,
6 madam.
7 MR JUSTICE PICKEN: Just on my Lady's point, if you look at
8 paragraph 26 which is the last paragraph of the
9 statement, it reads to me at least, as being what might
10 be described as a standard type of statement required
11 when what is sought to be done is reliance placed on
12 a computer system.
13 MR MILLINGTON: Yes. This woman was faced with an audit at
14 the branch. This seems to give the gold standard seal
15 of approval to what had taken place. There is not
16 a hint in any of this that anyone might be a little bit
17 more concerned about the question of audit.
18 MR JUSTICE PICKEN: But in fairness, the previous paragraph
19 also talks about there being no reason to believe it has
20 been improperly used, the system.
21 MR MILLINGTON: Yes, it is of some importance, I would
22 suggest, that the defence statement put the respondent
23 on notice but it may well be suggested by the defendant
24 that there's is some sort of computer error here. And
25 it may be the court will think there is no reason to
114
1 think that she should have been shut out from exploring
2 that possibility through her counsel. But I rather
3 suspect had she done so, the line that would have been
4 taken was this was an excellent and totally reliable
5 system of accounting.
6 MR JUSTICE PICKEN: You said the defence statement, that is
7 pretty much at the back of the bundle.
8 MR MILLINGTON: Paragraph 125 is the one that deals with
9 this.
10 MR JUSTICE PICKEN: Quite.
11 MR MILLINGTON: My Lord, it is a fair point that the
12 respondent makes. The focus of the defence statement
13 was upon various aspects, some of which she has
14 subsequently resiled from, such as the denial that she
15 was responsible for the creation of the transfers into
16 the GG stock account, so the focus, perhaps, of the case
17 was not going to be so much on that aspect but that
18 doesn't mean that it relieves the prosecution from their
19 obligations -- as were called for here, I respectfully
20 submit -- to tell her that maybe this particular system
21 is not quite as reliable as you may think.
22 So that is the force of the Penelope Thomas witness
23 statement, and I would respectfully submit that it is
24 reasonable for me to submit that the message to be taken
25 from this as a whole is that this is a reliable system,
115
1 Horizon. That was always the position of the
2 Post Office, because if I go back and rejoin my
3 submissions document, which I think is what we call the
4 speaking document, which is not an expression, I'm
5 afraid, I have ever heard of before, but then I come
6 from a long way away and we tend to be a bit less
7 familiar with the latest up-to date developments.
8 LORD JUSTICE HOLROYDE: The distant midlands?
9 MR MILLINGTON: Well, I'm afraid so. We have not been hit,
10 fortunately, yet, by the speaking document and I can
11 imagine one of my colleagues up there might want to say
12 in response "We have the oral tradition".
13 But that is by the by.
14 The first bit of bad press for the Post Office and
15 its IT system appeared in a publication called
16 a computer weekly, in May of 2009. I picked that up
17 from the CCRC statement of reasons. And I Googled it
18 because I was interested to see what the response of the
19 Post Office had been to that publication and not really
20 to my surprise, I read that the response was that
21 Horizon was an extremely robust system. Because that
22 was their attitude towards their system, things carried
23 on much the same as before. And there were more and
24 more prosecutions, one has to say, sadly, more and more
25 misery was caused and there was more and more disregard
116
1 for disclosure obligations and it is within all of that
2 that Ms Hussain appears at the West Bromwich branch
3 in November, about six months later.
4 At that time it was said that she had stolen mostly
5 cash to the tune of just over £100,000. The respondents
6 say that the evidence that they were able to rely on
7 showed that she had behaved deceitfully on a number of
8 occasions and I concede that she did. They say that she
9 told lies and I concede that she did. She transferred
10 mythical amounts of stock into an account that had
11 nothing in it, she says in order to falsely account for
12 the apparent very large shortfall.
13 But what happened to all of this cash? Just over
14 £100,000 apparently, although she was allowed to plead
15 guilty to a lesser amount. All of this accumulated in
16 the course of about three or four months. And
17 in October time, and I think the people in authority
18 arrived to do the audit in early November, I think
19 13 November, but in October time, she was issuing some
20 cheques. She issued one for just over £8,000, which was
21 dishonoured through lack of funds. And she issued
22 another for £1,437.40 in favour of the firm of
23 solicitors who were acting for the sub-postmistress from
24 whom she was attempting to negotiate the purchase of the
25 leasehold interest in the branch. But that too was
117
1 dishonoured through lack of funds and with all due
2 respect to the submissions made on behalf of the
3 respondent, that does not entirely support the
4 proposition that this woman was flush with lots of cash.
5 When she was interviewed by a probation officer after
6 the event, she sought to recall a story that all of this
7 cash had gone to fund medical expenses for her mother in
8 Pakistan, which, when investigated, was discovered to be
9 a pack of lies but it was offered in order to curry
10 sympathy with the sentencing judge.
11 But she is not the only one who told a similar lie
12 to explain what had happened to the money that had been
13 stolen. One appellant, entirely meritorious in the view
14 of the respondents, Margery Williams, did very much the
15 same thing and in her appeal, I believe I heard over the
16 CVP platform that that lady had told the lie that the
17 money had been used to pay off a loan.
18 One of the submissions that was made by Ms O'Reilly
19 appealed to me, and I would like to adopt it. It was
20 this. It was the effect of the pressure that was put
21 upon the appellant as a result of the failures of
22 disclosure and the failures to engage in the proper
23 investigation. And the pressure arises in this way, as
24 I understand it. If the foundation of the case against
25 you is that we have a completely reliable IT system
118
1 which can demonstrate that there is a loss of £100,000
2 in a period of three months in 2009, unless you can come
3 up with something else, you are sunk.
4 So defendants and, later as they were to become,
5 appellants, offered alternative explanations or pleaded
6 guilty to false accounting or theft because,
7 essentially, that was what they were left with, when the
8 reality was there was nothing to explain. But try
9 telling that to the jury.
10 That may well be what happened here, in the case of
11 this appellant. Who can say to be sure? But what I do
12 say is, it doesn't make this conviction any safer than
13 any of the others.
14 So the essence of how I want to finish is all of the
15 things that the respondents rely on by way of
16 circumstantial evidence making this strong case, don't
17 in fact make this particular conviction any more safe
18 than any of the others. And the fact that the
19 Post Office didn't think it important to alert anyone
20 they had prosecuted to the reality of the problems that
21 had been encountered with their gold standard,
22 infallible system, called Legacy Horizon, in my case, is
23 what makes this conviction unsafe because it is so
24 abusive.
25 They called it Legacy Horizon, but I suspect that it
119
1 is for the future to consider what sort of legacy has
2 been left by this IT system.
3 LORD JUSTICE HOLROYDE: Thank you. Yes, Mr Altman.
4 Submissions by MR ALTMAN
5 MR ALTMAN: There was a strong and compelling circumstantial
6 basis accepted against this appellant, as evidenced by
7 all the facts in combination and that case was supported
8 by her unequivocal plea of guilty and it has been
9 further supported, albeit not by evidence, but by
10 Mr Millington's acceptance on her behalf that she not
11 only created the phantom stock unit, the GG stock unit,
12 but also made the five transfers from two other stock
13 units into it, between 16 October 2009 and
14 5 November 2009, over a period of about three weeks.
15 Our contention in this case is that there is no
16 abuse of process as argued by the CCRC and not even some
17 non-specific limb 2 safety matters, because this was not
18 a case in which reliability of Horizon data was
19 essential.
20 The mere fact that Penny Thomas was asked to and did
21 serve exhibits by way of ARQ data, no more makes this
22 case a Horizon reliability one than does the absence of
23 the service of ARQ data make the case a Horizon
24 reliability one or not. In other words, it is
25 completely neutral, it makes no difference. It is
120
1 an irony that the fact that in that case, ARQ data was
2 served, is being used to suggest that her case is
3 entirely safe. The audit data which was being served
4 was the ARQ data about which Mr Justice Fraser had much
5 to say -- it may not have been the unfiltered best
6 evidence but it was clearly ARQ data and the witness
7 statements produce -- the two exhibits, PT01 and PT02
8 which are clearly two sets of data, and then must have
9 been served as part of the case.
10 I anticipate because that is why Mr Millington
11 relies on it.
12 So her case now is that she created the GG stock
13 unit and she made all five transfers, although, as we
14 know, denying responsibility for doing so in her defence
15 statement, that has subsequently changed.
16 The Horizon record, and I am going to invite the
17 court to look at what the actual Horizon record means in
18 this case, is to be found behind divider 13 at page 92.
19 There you will see -- I should have said -- and
20 there you will see where the paper clip is, there you
21 will see:
22 "16 October 2009, at 8.35 in the morning, SU [stock
23 unit] created, individual SU GG created".
24 That is the record of the creation of the GG stock
25 unit. Is Horizon reliable about that? Yes. Why?
121
1 Because the appellant admits she did it.
2 If we turn, please, to tab 17, there we will find
3 another exhibit which comes from Horizon. What that
4 shows is, in the top half of the document, because the
5 document is divided in half, we have the transfers that
6 she made from the BB stock unit to the phantom GG unit,
7 respectively on 16 October and the 17th but you will see
8 the figures in the right-hand side, £25,500, £48,500 and
9 it's notable that the larger of those figures, she used
10 Ruhila Mahmood(?), one of the assistants within the
11 branch, her user ID, to make the larger of all of these
12 transfers.
13 They totaled 74,000 from the BB to the GG unit.
14 Then you have three transfers below, the first of which
15 happens to be the 5 November one of £1,500, and then you
16 have the -- it is hard to read but the next date should
17 be 20 October, and the one beneath that, 29 October, of
18 6,000 and another £1,500 respectively. Totaling £9,000
19 made from the BC stock unit to the GG phantom stock
20 unit, totaling, I think, £18,000.
21 MR JUSTICE PICKEN: What did you say you think the first of
22 those dates is?
23 MR ALTMAN: When you say the first, do you mean the second?
24 MR JUSTICE PICKEN: The second.
25 MR ALTMAN: It is 5 November.
122
1 MR JUSTICE PICKEN: Just in reverse order?
2 MR ALTMAN: Yes.
3 So those are the records, and we know that those
4 Horizon records are entirely accurate because the
5 appellant accepts creating the unit and making the
6 transfers. They were made in the space of three weeks,
7 between the dates I have given. The appellant's case
8 before she pleaded guilty appears from the defence
9 statement to have been an acceptance that the GG stock
10 unit had been created, albeit not by her, and that the
11 five transfers had been made, albeit not by her. And
12 the defence statement, we don't need to look at it, for
13 now at least, but it is behind tab 47 at page 203.
14 I tell a lie, perhaps we ought to -- perhaps we
15 could go behind 37, because there is another passage
16 which I want to take the court to. It is on page 205,
17 out on a page at the back bundle. While you have it
18 open, let's just look. 1.3 on page 205, the defendant
19 further denies she was responsible for creating the
20 stock in this, denies that she made the five stock unit
21 transfers in the sum of 83,000, and further denies that
22 she was responsible for the stock unit transfer using
23 Ruhila Mahmood's user ID and further denies that she
24 told Ruhila Mahmood that she had undertaken this
25 transaction.
123
1 Then 1.5:
2 "The defendant maintains that any deficits may be
3 due to accounting errors or if other counter staff may
4 be responsible for these losses/thefts."
5 Because she is not giving evidence before the court,
6 I am not criticising her for it but I am stating the
7 fact, we do not know what she meant in her defence
8 statement but if the suggestion is that the assertion
9 that any deficits might be due to accounting errors was
10 an assertion that the appellant didn't accept what the
11 Horizon records show, then that is clearly no longer the
12 case.
13 That is because the admissions now made on her
14 behalf provide ample evidence, not only to support but
15 also to confirm the evidence from the Horizon record,
16 showing both that the stock unit was her doing, using
17 her user ID, and that she was responsible for all five
18 transfers made into that stock unit. What that means is
19 that the transfers were not accounting errors.
20 The CCRC's findings of abuse of process or its
21 reasons, is where, in the context of the evidence in the
22 case in question, the reliability of Horizon data was
23 essential to the prosecution and conviction of the
24 Post Office applicant. And this is, as the court well
25 knows, the fundamental premise of the CCRC's reasons and
124
1 in determining whether the appellant's conviction was
2 unsafe, as an abuse of process, in light of that basic
3 premise. Her belated admission in her grounds and
4 through her counsel, to having previously advanced
5 a false case about her responsibility for creating units
6 and making the transfers, is, we submit, highly
7 material.
8 The CCRC's reasons on non-disclosure and poor
9 investigation are necessarily contingent on the
10 reliability of Horizon data. That is because the
11 failure of disclosure on the full and accurate position
12 on Horizon was not material, where the reliability of
13 Horizon data was not essential in the context of the
14 evidence in the case. And we submit it wasn't here.
15 We also note that what Mr Millington adds, if not in
16 the speaking document before the court, in other
17 submissions, it is asserted that she, the appellant,
18 deserves the same protection against what Mr Millington
19 calls lamentable failures of disclosure, as a defendant
20 who fought the case and lost. We respectfully disagree.
21 It was immaterial because it wasn't an Horizon case
22 and, therefore, there was no requirement under the 1996
23 Act to disclose those issues. Her plea, as supported
24 now by her acceptance of what she did, shows those
25 records to have been reliable.
125
1 Now, she made a witness statement and the witness
2 statement is before the court, although it is not
3 advanced as fresh evidence, but I am going to suggest
4 a look at what she had to say de bene esse, as it were,
5 about why she pleaded as she did. Mr Millington,
6 himself, in his speaking note, advances another reason
7 and that reason being in his paragraph 4, is that she
8 pleaded guilty on the erroneous assumption that full and
9 proper disclosure had been made concerning the
10 reliability and legitimacy of Legacy Horizon and the
11 data it created. In that statement, if the court wants
12 to have it before them, or simply to remind the court
13 where it will be found, it is divider 2, at page 39.,
14 about six paragraphs down, on page 39, line 32.
15 8 November:
16 "My solicitor at the time said the case was very
17 strong against me, as my user name and password was used
18 daily and that the best thing to do was to plead
19 guilty."
20 Then, on the opposite page, third paragraph down:
21 "My lawyer said, if I pleaded guilty, the case
22 against my brother would be dropped. I felt under
23 pressure to plead, as I was older than my brother. The
24 Post Office dropped the case against my brother and
25 discontinued the case as soon as I pleaded guilty."
126
1 Then the next paragraph:
2 "I pleaded guilty because the Horizon system was
3 against me. I couldn't prove my innocence, as my lawyer
4 said the computer doesn't lie. I felt I had no choice
5 but to plead guilty, even though I was innocent and did
6 nothing wrong."
7 Well, in relation to those points, first of all, her
8 solicitor was right, because she did use her user ID and
9 password to make the transfers. So when the solicitor
10 told her it was the right thing to do, she clearly
11 accepted the advice, knowing full well that she was
12 responsible for the five transfers.
13 Second, the solicitor said the case would be dropped
14 against her brother. It is not suggested that the
15 Post Office put her under any pressure, the pressure was
16 placed upon her, perhaps, in terms of what she
17 understood would happen but the fact is, the case was
18 dropped against her brother and, thirdly, when the
19 solicitor told her that the computer didn't lie, in this
20 case it was right, because the Horizon record didn't
21 lie. It showed that she had created the GG unit and
22 that she had made those five transfers.
23 Can I now go into just some of the facts, and I am
24 afraid some of it is a little technical, so I will help
25 as much as I can. But her case now, and this is really
127
1 what the dispute descends to, is did she do as she did
2 to cover up a shortfall equating to £33,000, or did she
3 do it because she was stealing the money, wherever it
4 (Inaudible)?
5 First of all, the one point that was made by
6 Mr Millington in his grounds was that she was liable to
7 Post Office under the sub-postmaster contract. She
8 wasn't. She was a manager. Mrs Dubberth(?) was the
9 sub-postmaster and it was from Mrs Dubberth from whom
10 she was seeking to buy the leasehold of the branch
11 premises.
12 What we submit is that the facts, on the basis of
13 which she pleaded guilty to theft, provided a strong
14 circumstantial case of a woman who created a
15 sophisticated scheme to take cash from the branch, the
16 premises of which she was in the process of buying at
17 the same time as her brother, albeit unsuccessfully, was
18 buying a home. During the audit on 13 November of 2009,
19 the appellant sought to explain the shortfall by saying
20 that she had lost a cheque, not that she had suffered
21 a Horizon generated shortfall. It was for that reason
22 she wrote a cheque, not for the first time, on a work
23 colleague's cheque book for £85,000, having told the
24 colleague that a customer had come in to purchase
25 an £85,000 broke bond but that she had been unable to
128
1 put the customer's cheque through because she had lost
2 the cheque. The work colleague is Manshinder Kaur(?),
3 whose statement is behind divider 21.
4 The cheque, written out by the appellant, was later
5 found during the course of the audit. And I am going to
6 invite the court to look at this. It is behind
7 divider 9, tab 9, and you will see it is a cheque made
8 out to Post Office Limited in the sum of £85,000 but it
9 is on the account of a Mr B S Hayer(?), who was the
10 husband of Manshinder Kaur, the work colleague. The
11 date of the cheque appears to be 2 August 09 and it
12 appears as though the 9 in September has been changed to
13 an 8. Page 79.
14 LORD JUSTICE HOLROYDE: Sorry, what appears?
15 MR ALTMAN: Page 79, my Lord, the cheque, you will see the
16 date.
17 LORD JUSTICE HOLROYDE: Yes.
18 MR ALTMAN: It appears, potentially, to have been
19 2 September 09 might have been changed to 2 August 09.
20 MR JUSTICE PICKEN: The date 8, with the 8 of the 85?
21 MR ALTMAN: Yes, I am talking about the date. Whether it
22 was August or September, perhaps, whether that matters,
23 I will come to in a moment.
24 Attached to that cheque, when the auditors were in
25 the branch on 13 November, was the document behind
129
1 tab 10.
2 You will see on the first page, page 80:
3 "To put in system, sent application, growth bond."
4 And then over the page:
5 "Cheque to put in system, growth bond."
6 Later in December, the next month, the appellant
7 admitted to Ruhila Mahmood, another work colleague,
8 responsibility for making the transaction on 17 October,
9 the largest one which I was inviting the court's
10 attention to earlier, the one for £48,500, telling her
11 colleague that she had done so because she had lost the
12 cheque and that if she had not transferred the funds,
13 there would have been a shortage in the accounts.
14 That is a very different account to the unexplained
15 shortfall case now apparently advanced on her behalf.
16 Whether or not that is true, we suggest this is
17 an explained shortfall case; not an unexplained one but
18 an explained one. The appellant's case now is that she
19 created the phantom stock unit to cover up a shortfall
20 or shortfalls. It is notable that the defence statement
21 never included the assertion that she was covering for
22 any unexplained shortfall, however caused, despite
23 asserting that accounting errors might have caused the
24 deficits. Notwithstanding that the separate count of
25 money laundering, the £1,500 against the appellant was
130
1 ordered to lie on the file, in considering the
2 submission that Mr Millington makes in one of the
3 documents, that there was no corroborative or direct
4 evidence that she stole the money, and that there was no
5 proof of actual loss, as opposed to an Horizon generated
6 shortage, the evidence surrounding the payment of £1,500
7 made on 29 October, at 1726, 5.26, from BC stock unit to
8 the phantom stock unit under her user identity, is, we
9 submit, noteworthy.
10 LORD JUSTICE HOLROYDE: Well, forgive me if this is not
11 another good point to interrupt but I have been meaning
12 to ask this at some stage and it is perhaps now
13 highlighted. The documents you took us to at page 96,
14 the Horizon record of the transfers, these are transfers
15 of balances from one account to another.
16 MR ALTMAN: Yes.
17 LORD JUSTICE HOLROYDE: Did the Horizon records also show
18 cash going out of the GG --
19 MR ALTMAN: No, that is the whole point of the phantom unit.
20 It doesn't exist. The person who makes the stock unit
21 makes it so that it doesn't exist, as it were,
22 officially on the system, in the sense that the person
23 who created the phantom stock unit is the person who
24 knows about it. There can be two reasons why a phantom
25 stock unit is created. One could be to cover up
131
1 unexplained shortfalls because if they don't exist in
2 the system, the money just disappears into the ether but
3 the other alternative explanation is because the money
4 is being siphoned off without anybody knowing about it
5 and that is how phantom stock unit words.
6 MR JUSTICE PICKEN: Sorry, so the first scenario is, as it
7 were, to balance the books?
8 MR ALTMAN: Yes. What the phantom stock unit doesn't do is
9 it doesn't exist within the branch accounts. In other
10 words, you will not see it. In other words, if there is
11 a shortfall, you can hide that shortfall in a phantom
12 account that is not seen, in a sort of overarching
13 sense. But the real point of a phantom stock unit, the
14 important point, is it can serve one of two purposes.
15 It can either be used to cover a shortfall, which is the
16 appellant's case before the court or it can be used to
17 cover the theft.
18 MR JUSTICE PICKEN: So it can either be -- the former I
19 understand; the second is the ability to access the
20 cash?
21 MR ALTMAN: Yes, so the whole point is it is taking time to
22 conceal.
23 LORD JUSTICE HOLROYDE: Sorry to (Inaudible) but when you
24 say it doesn't show up in the accounts, one glance at
25 page 96 it shows it has gone from BB to GG.
132
1 MR ALTMAN: My Lord, this is the record that was created
2 during the audit.
3 LORD JUSTICE HOLROYDE: All right, (Inaudible).
4 MR ALTMAN: True, but people will create phantom accounts in
5 the hope that they are discovered. Sometimes they are
6 and this is a situation in which it was, but unless
7 an audit goes through a branch and in this case is
8 discovered, it will not be discovered. I am not
9 pretending for a second that it is foolproof but some
10 postmasters have done this in the past. I am not saying
11 it is novel. The real point is what its possible use
12 is.
13 MR JUSTICE PICKEN: At first blush, you are saying the
14 phantom thing will make it not discoverable, it has to
15 be looked for by --
16 MR ALTMAN: It has to be looked for. Yes, exactly.
17 That is why you have the other record I took you to,
18 because then, obviously, the auditors went in on
19 13 November, looked back and found the actual record
20 showing its creation.
21 So much so, my Lord, in fact, if you look at the
22 statement -- I don't invite you to now, but the
23 sub-postmistress herself, when the auditors went in and
24 said "I didn't even know we had a GG stock unit", as did
25 some of the assistants within the branch, they didn't
133
1 even know it existed.
2 LORD JUSTICE HOLROYDE: I understand anyone doing an audit,
3 seeing £28,500 going out, might be expected to follow
4 through --
5 MR ALTMAN: And also, you heard the criticism yesterday that
6 routine audits were not done. You also heard criticism
7 that audits were once in a blue moon, as it were.
8 That probably was the advantage of doing something
9 like this, in the hope of getting away with it for as
10 long as one had to.
11 LORD JUSTICE HOLROYDE: Thank you.
12 MR ALTMAN: So coming back to the point, you will remember,
13 as your Lordship may still have open page 96, the very
14 last of those transactions from BC to GG stock units,
15 which happens to be on 29 October, you will see was for
16 £1,500. It took place, you can just about make out the
17 time, 17.26, and banking evidence from the brother's
18 bank account Shahmir(?) Hussain, who also worked in the
19 branch, shows that on the very next day, the 30th,
20 £1,500 in cash was deposited into his account at the
21 Long Acre branch of Lloyds TSB in Birmingham. And if we
22 look, please, behind tab 16, there you will see the
23 printout showing on the 30th, that deposit of £1,500 in
24 cash going into the brother's account.
25 In her defence statement, to be fair, the appellant
134
1 denied giving the cash to the brother.
2 There is the other issue of the growth bond because
3 as I heard from (Inaudible) already invited attention
4 to, on the day of the audit, her reason for inviting her
5 work colleague to allow her to write a cheque for
6 £85,000 on her cheque book in the cousin's name, was to
7 cover a lost cheque in relation to a growth bond, as we
8 have just seen. What is known about a growth bond? On
9 13 August, of that same year, so a couple of months
10 before, the appellant conducted the growth bond
11 transaction before reversing it out of the system. What
12 that means is cancelling it. She cancelled it and
13 I hope the court will have seen the case summary. All
14 of this is set out in the case summary, but she
15 cancelled the transaction two hours and 10 minutes after
16 it was made. The next day, 14 August, she entered the
17 cheque, the customer's cheque, for a little over £50,000
18 into Horizon and cash to the same value was shown as
19 paid out.
20 So pausing there, the customer goes into the branch
21 on the 13th, she wants to buy a growth bond. She
22 presents the cheque for the growth bond that she wants.
23 The record shows that the transaction was paid but it is
24 then reversed, in other words, cancelled within a couple
25 of hours, the customer having left, and the very next
135
1 day, rather than the cheque being held on to, it is
2 actually inputted into the system and cash to the same
3 value is shown as being paid out.
4 Entering the cheque was a deliberate physical,
5 manual act with no explanation. The effect of entering
6 the cheque on to the system is to increase the stock
7 value. The stock is the cheque in this instance, whose
8 value is about £50,000, and so Horizon shows that the
9 stock value represented by the cheque has increased by
10 £50,000. Because Horizon, working on the double entry
11 bookkeeping system, thinks the cash to the same value
12 has therefore been paid out, the cash value decreases by
13 the same amount, £50,000, in the account.
14 If the appellant did not remove that cash when she
15 came to balance Horizon, her accounts would show
16 a £50,000 surplus that would require explanation.
17 It would need to be declared as what is known as
18 a positive discrepancy.
19 However, the records show, and this is in the case
20 summary at, I think paragraph 18 and onwards, the
21 records show there was no cash surplus in the account at
22 the relevant time. If that is right, and it appears to
23 be right because the court may remember going forwards
24 to 6 October, when the appellant chatted to
25 a Mr Fitzgerald at the Bank of Ireland, when the
136
1 customer returned to the branch, wanting to know where
2 her growth bond was, the appellant agreed that it made
3 her account go up and she said, therefore, the money was
4 in the safe all of that time -- in other words, the cash
5 had been removed, so again, the record was correct.
6 There was no surplus because the cash was removed. What
7 that means is, from 14 August onwards, she removed the
8 customer's cash, represented by that cheque, and
9 retained it without more for that period of time, until
10 the customer herself came in on 6 October, an elderly
11 lady, because she hadn't received her growth bond.
12 In the meantime, the appellant did nothing to
13 rectify the position.
14 Why did the customer know that something was wrong?
15 That was because the cheque which had been put through
16 the system on the 14th had been debited from the
17 customer's account on the 16th. She decided in due
18 time, having spoken to the Bank of Ireland which
19 facilitates growth bonds, or did at the time, she
20 decided to confront the appellant and this she did on
21 6 October of that year.
22 MR JUSTICE PICKEN: In very simple terms, the cheque was
23 debited so the customer knew -- we know the names, knew
24 that the money had left her and the question is, where
25 it then went and you --
137
1 MR ALTMAN: The money left the customer's account,
2 16 August. For whatever reason, it took time for her to
3 realise that she hadn't got the growth bond and in due
4 course she made contact with the Bank of Ireland which
5 facilitated the growth bond systems and that ended up
6 with the customer going back to the branch on 6 October
7 to deal with the appellant. At the same time, having
8 made an arrangement for the Bank of Ireland,
9 Mr Fitzgerald in Kilkenny, to speak to the appellant and
10 what we have is a transcript of that call while the
11 customer was standing there, which you will find behind
12 tab 11. You will see the date is 6 October but we shall
13 start, perhaps, on the second page, page 83, towards the
14 bottom. NH is the appellant; PF, Mr Fitzgerald, from the
15 bank.
16 Now, she says, the lady --
17 MR JUSTICE PICKEN: Sorry, this is actually some Post Office
18 investigator?
19 MR ALTMAN: No. No. What happened was --
20 MR JUSTICE PICKEN: Oh I see, sorry, I am misunderstanding.
21 Do you see the italicised bit at the beginning "This is
22 how he extracted the transcript ..."
23 Sorry, my fault.
24 MR ALTMAN: Yes, transcription of the recording.
25 MR JUSTICE PICKEN: My fault.
138
1 MR ALTMAN: On the bottom of page 83, towards the bottom,
2 half a dozen lines up:
3 "Now the lady, obviously what happened was when she
4 opened the growth bond, she provided a cheque for
5 £50,000."
6 This is the appellant speaking:
7 "Now when the lady actually opened the growth bond,
8 we opened it for her, we gave her a receipt to let
9 [something inaudible] find. I actually remember this
10 lady because we'd done a lot of growth bonds. Still
11 remember it specific because it was a large amount."
12 And so she accepts that she felt that she dealt with
13 the customer:
14 "Now what happened was, when she actually opened the
15 account, that was fine, she had sent in her form but she
16 had done it wrong. So, obviously, I took her permission
17 and said: shall I fill it in for you? And she said:
18 yeah, that is fine. So I filled in the form for the
19 lady, who processed this and gave her a receipt and
20 said: you have just got to wait for the Post Office to
21 actually send you whatever they had to send and that
22 was -- "
23 It was unclear exactly what the appellant was
24 referring to. It clearly wasn't going to be a growth
25 bond. And then when we look at the next page, page 85
139
1 at the top:
2 "So what I did was on that, what do you call it, on
3 that system, I reversed the application."
4 I think the reason she gave was because she claims
5 that the form had been incorrectly completed:
6 "So what I did was I reversed the application,
7 I read the application, and what happened was, because
8 I was on my stock unit BC and the stock unit that this
9 was done on was FF, I have got all the reversal slips we
10 put on the -- come there, we actually put everything on
11 there to say but when the lady comes back, we have got
12 to explain to her how, like many occasions, we have done
13 so.
14 "So what they have done is they put the reversal
15 slips, the branch copy, but what happened was that the
16 girl using that stock unit, she processed it, her
17 cheque, so at the end of the day, it made my till go up
18 £50,000."
19 That was the point I was making earlier, pushing the
20 cheque through made the stock increase in the way
21 I suggested. So she continues:
22 "I couldn't understand why. When I had a look in my
23 paperwork, she put the cheque through because it was
24 done on her system it had taken her cheque book with.
25 After she had taken her cheque, I took her cheque but
140
1 automatically, when I did it again, I reversed it but
2 the cheque was sent off to EDS."
3 Which I think is a reference to the clearing house.
4 So we have still got the lady who has explained to
5 the lady we have still got her application here, waiting
6 for her to come and ...(Reading to the words)... We've
7 got her money as well in the 40-minute safe with the
8 application form."
9 And she is asked the question:
10 "Hold on, so you actually had everything in the
11 safe?
12 "Yeah."
13 So the suggestion is, as I indicated, that the
14 cheque had been put through. She says in this phone
15 call, "it was my assistant", she put the cheque through
16 removed the cash and according to what she said in this
17 phone call, put it in the safe.
18 The records actually show that it was the appellant,
19 her user identity, no one else's, that entered the
20 cheque on to the system. So what she was telling
21 Mr Fitzgerald was not true. Whereas she was blaming
22 an assistant for putting the cheque through, in fact it
23 was her.
24 LORD JUSTICE HOLROYDE: What is the aim of this whole
25 account, Mr Altman, does the lady get her bond,
141
1 a different issue of the bond?
2 MR ALTMAN: I am coming to the punchline, if you will just
3 give me a few moments.
4 LORD JUSTICE HOLROYDE: Ah.
5 MR ALTMAN: For your reference, that little history that
6 I just went through is paragraph 18 of the case summary,
7 the bundle at page 55. In concluding it was her ID that
8 was used and no one else's, to make the transaction.
9 Because, on 6 October, the customer had clearly lost
10 interest over all of those weeks, the appellants agreed,
11 at the suggestion of Mr Fitzgerald, to pay a sum of
12 about £70 by way of interest to the customer, to make
13 sure she had not lost out in by the delay in getting
14 what she had bargained for on 13 August.
15 Now, to answer your Lordship's question, when the
16 transaction was put through Horizon again on 6 October,
17 when all this was going on, the system showed that
18 transaction had been settled to cash. The system has
19 different ways of showing method of payment, for
20 example, credit card, cheque, cash. The system showed
21 that on 6 October, the transaction was settled to cash.
22 So the suggestion is that on the 6th, the customer
23 left the branch with her growth bond, or at least
24 content that she had got her growth bond, but what is
25 equally clear is that she didn't give the appellant
142
1 another £50,000, other by way of cash or a cheque for
2 the bond, because she had paid for it with a cheque
3 drawn on her building society back on 13 August.
4 She had done that two months before.
5 So if there was no cash to pay for it, in the
6 system, it would have created a shortfall of £50,000,
7 unless, as the appellant told the Bank of Ireland, she
8 held the £50,000 in cash in the safe and used it against
9 the bond on 6 October. In other words, put back the
10 cash that she had held on to for all of those weeks. In
11 that case, the branch would balance and there would be
12 no shortfall.
13 If that is what happened, then the growth bond
14 cannot explain -- this is what I am driving at -- if
15 that is what happened, then the £50,000 growth bond
16 simply cannot explain any shortfall that required
17 covering up and certainly not a shortage of £83,000.
18 If, however, she had used the cash, then any
19 shortfall it created in the accounts was of her own
20 making and not due to any Horizon generated shortfall,
21 as is now claimed.
22 MR JUSTICE PICKEN: That is, in a nutshell, because we are
23 talking about real money?
24 MR ALTMAN: Yes.
25 MR JUSTICE PICKEN: The lady's money, the £50,000?
143
1 MR ALTMAN: Yes, we are talking about absolute --
2 MR JUSTICE PICKEN: We are not here talking, you say, about
3 system monies or system faults, this is real money that
4 has come in and it has only been in briefly, as it were,
5 and then it has popped out.
6 MR ALTMAN: Yes, and the whole point though, is it links,
7 this growth bond and how, having dealt with the matters
8 at the point of audit on 13 November, it all links
9 circumstantially because her whole account to everybody
10 around her on the 13th, when the auditors walked in, was
11 "I lost a cheque in relation to a growth bond", although
12 she put the amount of that growth bond at £85,000, hence
13 the amount on the cheque. It is not -- without
14 interest -- the amount she was suggesting represented
15 the loss of the growth bond cheque was a couple of
16 thousand pounds different to the amount that she had
17 been guilty to, in other words, the sum total, five
18 transfers linked to the GG unit. The other point, the
19 cheque which was written on Mr Hayer's cheque book, the
20 one that I showed the court for £85,000, that is why she
21 dated it when she did, 2 August of 09. Or 2 September.
22 Maybe she couldn't remember the date but it relates back
23 to this transaction in relation to which these things
24 were done.
25 MR JUSTICE PICKEN: When do we think, in fact, that cheque
144
1 was written?
2 MR ALTMAN: Forgive me, my Lord?
3 MR JUSTICE PICKEN: Sorry, when do we think that cheque was
4 actually written?
5 MR ALTMAN: The £85,000 one?
6 MR JUSTICE PICKEN: Yes, in October?
7 MR ALTMAN: No, it was actually written on 13 November --
8 MR JUSTICE PICKEN: Sorry, November, yes, that's right.
9 MR ALTMAN: -- because when one looks at the statement of
10 Manshinder Kaur, she says it, "She came to me, she says
11 'I have lost the cheque book, I'm in trouble," in
12 effect. "Give me your cheque book and I want to write
13 a cheque."
14 MR JUSTICE PICKEN: The one thing that was not done was
15 written on the date it (inaudible), whether in its
16 original form or an altered form.
17 MR ALTMAN: No.
18 MR JUSTICE PICKEN: Yes.
19 MR ALTMAN: Let's not forget the notes that accompanied the
20 cheque which the auditors found, for a growth bond to
21 put through the system.
22 So we suggest that you can wrap it around, as
23 Mr Millington suggests, that there is no relevance to
24 any of this. It is highly relevant because one can join
25 the dots, as it were, between all of these currencies.
145
1 They are not the only dots to be drawn, the banking
2 evidence, something to which Mr Millington has already
3 adverted.
4 MR JUSTICE PICKEN: Sorry, again, to interrupt but leave
5 aside the extra 33,000 or whatever that she pleaded
6 guilty to, you are saying the 50,000 or so is hard
7 money?
8 MR ALTMAN: Yes.
9 MR JUSTICE PICKEN: And clearly hard money rather than some
10 fictional or some possible fictional.
11 MR ALTMAN: As I hope I have demonstrated, yes.
12 MR JUSTICE PICKEN: Yes.
13 MR ALTMAN: My Lord, can we go in the bundle, please, to
14 tab 7. This is a few pages from the brother's account.
15 We really only need go to the final page, page 77. If
16 one looks, you seem familiar with, paid out and paid in
17 columns. On 14 August, you have a deposit in
18 Perry Barr, that's the name of a branch in Birmingham.
19 The paid in was £8,000 on the 14th and paid out on the
20 19th, an unpaid cheque of £8,000.
21 If you keep, please, a finger in tab 7 and flick
22 over --
23 MR JUSTICE PICKEN: You said August, do you mean October?
24 MR ALTMAN: I do.
25 MR JUSTICE PICKEN: It may be that you said October.
146
1 LORD JUSTICE HOLROYDE: He said August.
2 MR ALTMAN: I am sure you are right but, keeping a finger in
3 page 77, go over to page 93, behind tab 14, and there
4 you will find a cheque written on the same account,
5 Mr Hayer. It is dated 13 October, because it wasn't the
6 first time the appellant had asked her colleague to
7 supply her with a cheque but, interestingly, it is
8 written to Shandir(?) Hussain, the brother, who was in
9 the process of buying, or trying to buy, a property at
10 the time and, as you can see, the stamp, with which some
11 people may be familiar, "refer to drawer" and if we look
12 over into tab 15, you see a letter from the bank
13 effectively saying unable to pay the cheque because of
14 insufficient clear funds.
15 Mr and Mrs Hayer, or Mr Hayer and Mrs Kaur, who are
16 the addressees of this letter, didn't have the funds to
17 justify a cheque for that amount which the appellant
18 sought to be paid and therefore the cheque was bounced.
19 Then, if we go back to tab 7, page 67, on 20 October
20 you will see an amount of £8,565, being paid out, to
21 Wilding Solicitors. They were the solicitors who were
22 transacting on the brother's behalf, they
23 were conveyancers who handling his property purchase.
24 If you go, please, behind divider 28, this is
25 a letter, it is dated 27 January 2010, in relation to
147
1 an inquiry but the main paragraph shows:
2 "We confirm that on 22 October 09, there was
3 credited to our client account a cheque for £8,565, paid
4 in respect of a deposit of the purchase of the property
5 at an address in Birmingham. The client in this matter
6 was Mr Shandir Hussain, who instructed us (Inaudible)
7 the purchase of this property in April of 2009. A
8 mortgage offer was made in connection with the purchase
9 and subsequently withdrawn and the matter didn't
10 proceed."
11 What we suggest overall, and when one looks at all
12 of this evidence, is that the appellant's dealings with
13 the growth bond in August and October 2009 for hard
14 cash, as it were, her requests to work colleagues, the
15 ability to use them, as it were, to write cheques, the
16 returned payment into her brother's account of a cheque
17 for £8,000 and, it is suggested, the £1,500 cash deposit
18 into the brother's bank account the very day after the
19 transaction made by her into the GG account showed the
20 very same sum being transferred into GG, all during the
21 very same period when the appellant was making those
22 transfers into that phantom stock unit is strong
23 circumstantial evidence consistent with an urgent need
24 for cash and liquidity by the appellant and/or her
25 brother and with the theft to which she ultimately
148
1 pleaded guilty.
2 During this period, as has already been accepted,
3 she was attempting to buy the branch premises. Now, the
4 purchase was due for completion on 20 October 2009.
5 Sorry, my Lords, I am just going to try and find
6 a statement I want to take my Lord to. It is
7 divider 20, page 114.
8 This the statement of the postmistress, Baljinder
9 Nader(?), and it is really the final paragraph on 116,
10 because the point is made by Mr Millington that she
11 managed to bounce a cheque of £1,437 and that is not
12 consistent with somebody who has her hand in the till;
13 but one has to read a little more carefully what
14 Mrs Nader had to say. She said:
15 "I confirm that I was in the process of transferring
16 West Bromwich Post Office over to Neelam Hussain on
17 27 October ..."
18 So all this is happening at the very time we are
19 seeing all of those transactions.
20 "... for a purchase price of £175,000, leasehold.
21 The sale was not completed because the lease assignment
22 had been delayed because of a bounced cheque that my
23 solicitors had received from Neelam for £1,437.50, drawn
24 on her mother's account, Ms Golam(?)."
25 Sure enough the sale was delayed but what Mrs Nader
149
1 doesn't say is when that cheque was in fact written and
2 bounced. So we don't know from her and how relevant it
3 is to the period that we are examining.
4 So, my Lord, for these reasons it is submitted that,
5 in addition to the direct evidence of her unequivocal
6 plea, the case for theft was circumstantially strong.
7 This was simply not a case, despite Mr Millington's
8 suggestions -- the mere fact of the service of a
9 statement from Fujitsu made it so -- in which the
10 reliability of Horizon evidence was essential at the
11 time and in particular it is now shown not to have been
12 a Horizon case in light of the admissions now made by
13 and on behalf of Ms Hussain by Mr Millington.
14 As such, there is nothing to viciate her plea which,
15 as I say, remains strong direct evidence of her guilt,
16 in addition to what we submit is a compelling
17 circumstantial case.
18 That is all I need to say.
19 LORD JUSTICE HOLROYDE: Thank you very much, Mr Altman.
20 Mr Millington.
21 Submissions in reply by MR MILLINGTON
22 MR MILLINGTON: Three very short responses.
23 If it is accepted, as it seems to be, that
24 an explanation for the creation of the GG account was to
25 cover unexplained losses, then that called for
150
1 disclosure, because of the background evidence of the
2 system creating unexplained losses.
3 Secondly, in relation to the growth bond, it hasn't
4 been suggested in the past that that was direct evidence
5 of the theft of hard cash. The submission in the
6 document was that it was circumstantial evidence, the
7 potential theft of cash, but of course if there was
8 an unexplained loss, so to speak, in the accounting
9 system which was the result of the creation of the loss
10 by the Horizon system itself, then that would swallow up
11 the amount that was shown on the cheque, in the same way
12 that an overdraft would swallow up the payment into the
13 account of a cheque of that or some lesser account.
14 MR JUSTICE PICKEN: But how does it explain the cashing bit?
15 MR MILLINGTON: My Lord?
16 MR JUSTICE PICKEN: How does it explain the reversal of the
17 transaction half an hour later and the cashing of --
18 MR MILLINGTON: My Lord, the only explanation that I can
19 offer, which is the explanation we have offered in our
20 documents, is that this whole transaction from beginning
21 to end was an attempt to show and account for all losses
22 in the system.
23 MR JUSTICE PICKEN: But, for that, the money then would have
24 to be cashed and paid back in, but it wasn't.
25 MR MILLINGTON: Well, she as saying that there was a surplus
151
1 shown after payment of the cheque, which there plainly
2 wasn't, and that lie must have been a lie told, we would
3 submit, to account for the loss that she knew about.
4 That is the only way that I can put that.
5 MR JUSTICE PICKEN: Right.
6 MR MILLINGTON: Finally this. In relation to payment into
7 the brother's account of £1,500 or thereabouts, that was
8 denied. It formed a specific count of money laundering
9 and the prosecution did not proceed in relation to that
10 count which was ordered to lie on the court file, and it
11 was the subject of a denial by her that she was
12 responsible for that transaction.
13 Finally, to conclude, I have seen a schedule of
14 appellants, which was amended I think as a result of the
15 service of our submission documents, to the extent that
16 she served an additional sentence of nine months'
17 imprisonment as a default sentence.
18 This case, we submit is all about unexplained
19 losses. It was a case that was subject to the ordinary
20 rules of disclosure and in that the respondent fell
21 dramatically short.
22 Those are my submissions.
23 LORD JUSTICE HOLROYDE: Thank you very much indeed,
24 Mr Millington.
25 I think at 4.17 on Day 4, we have concluded a case
152
1 which was given four-day hearing estimate, which is in
2 itself a small triumph for all concerned.
3 Either Mr Altman or Ms Carey, the outstanding
4 inquiry?
5 THE CLERK OF THE COURT: It has been received and sent to
6 the judges.
7 LORD JUSTICE HOLROYDE: I gather it has been sent to us
8 electronically. Thank you very much for that. Does
9 anybody want to say.
10 Does anybody want to say anything about what has
11 been sent.
12 MS CAREY: It has been sent to all juniors and agreed by
13 them and I will forward the final version out to the
14 (Inaudible).
15 LORD JUSTICE HOLROYDE: There we are, those in the front
16 row, it has been dealt with behind you so that is the
17 end of that then. Our thanks to everyone who assisted
18 with that.
19 Is there anything else that remains outstanding or
20 that might have been overlooked?
21 MR MOLONEY: Not for our part, my Lord. No -- we,
22 obviously, perhaps I should have said this, that we ask
23 the court to admit the evidence of Mr Henderson. We
24 have sent the form W but the court has to make that
25 decision.
153
1 LORD JUSTICE HOLROYDE: The form W is there. I think we
2 have all understood that that is the application.
3 MR MOLONEY: Thank you, my Lord.
4 LORD JUSTICE HOLROYDE: Mr Altman, anything we have
5 overlooked?
6 MR ALTMAN: Those behind me tell me no, so it must be no.
7 LORD JUSTICE HOLROYDE: Can I just spell out what follows.
8 We of course are acutely conscious that there are
9 many people who are very anxious to know the outcome of
10 these appeals as soon as possible but we regret that it
11 simply is not practicable for us to proceed immediately
12 to judgment in these 42 cases. There are very important
13 matters, important in relation to the individuals but
14 also important matters of principle, have been raised in
15 the submissions and the court needs some time to think
16 about it.
17 We have indicated to counsel, but it may not be
18 known to everyone who is attending remotely, that the
19 date on which we will be in a position to give our
20 decisions is Friday, 23 April. That will be in this
21 building at 10.00 am. We do need, please, at least one
22 counsel from each team to attend either in person or
23 remotely to deal with any consequential matters which
24 may arise.
25 No appellant of course is required to attend but
154
1 they are all perfectly entitled to do so, again, either
2 in person or remotely, but subject of course to the
3 present constraints of social distancing and any
4 technical difficulties that may arise in access.
5 What we will do on 23 April is that we will hand
6 down a written judgment, inevitably it will be of some
7 length, too long sensibly for us to read the whole thing
8 out, but we will give a brief oral summary. We do not
9 propose to circulate any draft for assistance with
10 corrections, or anything like that. So that will be
11 handed down and orally summarised on Friday, 23 April.
12 Before finishing, I am conscious that 23 April will
13 be devoted to the giving of our decisions and the
14 handing down of judgments, we would like to take the
15 opportunity to record our gratitude to really three
16 groups of people.
17 First of all, we repeat the thanks we expressed
18 yesterday to all counsel. Today's submissions have
19 maintained the high standard of the preceding three
20 days. It may not always be obvious to those who are not
21 daily involved in this system, but the submissions of
22 counsel are genuinely of the greatest assistance to the
23 court in coming to a just conclusion in the case in
24 which we are considering.
25 I am sure other counsel will forgive us if we just
155
1 mention Mr Baker, Queen's Counsel, to offer our
2 congratulations, Mr Baker, on your very recent receipt
3 of your letters patent as one of Her Majesty's counsel.
4 It is a cruel irony that your first case after receiving
5 your letters patent is one in which you have been
6 condemned to almost complete silence, but greater
7 demands will be made of our oral advocacy skills in
8 future.
9 MR BAKER: I fear so, but thank you.
10 LORD JUSTICE HOLROYDE: Congratulations to you.
11 Secondly, sitting behind counsel there are many who
12 have helped in preparation, presentation of cases. We
13 extend our thanks to them. There are not many times
14 when this court deals with 42 cases simultaneously.
15 There has been a mass of documentation. The paper
16 documents and electronic copy documents provided to us
17 have been admirably prepared and greatly assisted the
18 court.
19 The third group we want to thank are those in the
20 Criminal Appeal Office in this courtroom, and to all
21 those behind the scenes in this building who have been
22 involved in the complex arrangements for a hearing which
23 has been spread over two courtrooms and has involved
24 a good many people attending remotely.
25 Just finally, as to that group, we would not want to
156
1 end the proceedings without mentioning this. We don't
2 know precisely which appellants have been listening
3 remotely -- for us, it is just a screen with icons of
4 muted cameras and microphones on it -- but we do of
5 course know three appellants who have not listened in:
6 Julian Wilson, Peter Holmes and Dawn O'Connell.
7 Whatever may be the outcome of their respective appeals,
8 they have not lived to see it. We extend our
9 condolences and our sympathy to all those bereaved by
10 the deaths of those three appellants.
11 Thank you very much. We will rise.
12 (4.25 pm)
13 (The hearing concluded)
14
15
16
17
18
19
20
21
22
23
24
25
157
1 INDEX
2
3 Submissions by MR STEIN ..............................1
4 Submissions by MR ALTMAN ............................19
5 Submissions in reply by MR STEIN ....................44
6 Submissions by MR MOLONEY ...........................51
7 MR IAN HENDERSON (sworn) ............................55
8 Examination-in-chief by MR MOLONEY ...........55
9 Cross-examination by MS JOHNSON ..............55
10 Re-examination by MR MOLONEY .................77
11 Submissions by MR MOLONEY ...........................83
(continued)
12
Submissions by MS JOHNSON ...........................85
13
Submissions in reply by MR MOLONEY .................100
14
Submissions by Mr Millington .......................107
15
Submissions by MR ALTMAN ...........................120
16
Submissions in reply by ............................150
17 MR MILLINGTON
18
19
20
21
22
23
24
25
158