Wednesday 24 March 2021

Day 3: Grounding it out

There were no staggering revelations today - instead there was the thread of compelling legal argument being wound around personal stories which hinted at the deeper tragedies beneath.

The court heard about Peter Holmes, a former police officer who, after 12 years on the force, chose to serve his community as a Subpostmaster. This he did diligently for 13 years before being accused of false accounting. A £46,000 shortfall appeared on the Horizon terminal of his Jesmond post office in Newcastle. 

"Horizon let us down" Mr Holmes said to the Post Office. He pleaded guilty in December 2009 and died of a brain tumour six years ago.

Mr Holmes' wife Marion says she has “no doubt” his conviction for false accounting “contributed to his untimely death”.

Sam Stein QC spoke on behalf of Marion today, saying Peter's latter years were spent 

“largely at home whilst his wife worked long hours in her business, delaying her retirement in order to support them. He was unable to volunteer in the community as a driver for a cancer charity because of his conviction."

A friend of mine once went to interview Peter Holmes. He told me Peter only found other Subpostmasters were having problems with Horizon the day after his conviction, when he googled it.

Mr Stein said of Mr Holmes: 

"All he wanted the rest of his life was to prove that he was innocent and have it reported in the paper that he was innocent.”

Around the grounds

This week, the Court of Appeal is hearing the cases of 42 former Subpostmasters (or managers, counter clerks etc). They were given criminal convictions after being prosecuted by the Post Office between 2000 and 2013. 

This is the third of three days of legal argument taken up with the 39 Subpostmasters whose convictions are unopposed (4) or opposed on the Criminal Cases Review Commission's "second limb" argument that their prosecution was an "affront to the public conscience" (35). 

Early on we were informed the Post Office had resisted the appellants' requests for statements from Simon Clarke (author of the now infamous Clarke Advices) to explain more fully the concerns he laid out in his advices in 2013.

We also discovered the appellants' requests for the Post Office to seek information from Adam Crozier (Royal Mail Group CEO from 2003 to 2010) and Moya Greene (Post Office MD between 2010 and 2012) were deemed "irrelevant". 

Mr Justice Picken suggested the relevance of Adam Crozier and Moya Greene was debatable given "they were at the top of the tree and would be unable to cast much light on anything."

Still - would have been nice to hear what they had to say.

Whistle-stop tour

We went from the general to the specific as the appellants' barristers argued the case for their clients to have their convictions quashed on limb/ground/category 2. Given the number of appellants it became something of a whistle-stop tour of why each (or each group) of the 35 appellants were entitled to argue that they were victims of ground/limb/category 2 abuse (affronts to the public conscience), not just ground 1 (failure to disclose/investigate).

Around this was (what felt like) a co-ordinated assault on the Post Office argument (articulated at length yesterday) that for the judges to agree Ground 2, the appellants needed to successfully prove something beyond Ground 1.

Lisa Busch, a constitutional lawyer representing Janet Skinner, Seema Misra and Tracy Felstead, said this was the wrong approach. Ground 1 was about the relationship between the Post Office and the people it was prosecuting. Ground 2 was about the relationship between the Post Office and the courts. eg a lack of disclosure to the appellants abuses the appellants, but it also abuses the court as the court is not able to make a just decision on their cases. Therefore some elements of abuse admitted in Ground 1 were directly applicable to Ground 2. As Ms Busch said:

"These convictions were not just secured on the back of unreliable data, they actively misled the courts... [the Post Office] seems to think that category two abuse is a hyper category one and seems to think there is something extra that needed to be drawn out to succeed on category two grounds. That’s not right."

This Ground-2-is-Ground-1-with-a-different-hat-on approach was developed by Sam Stein.

"this is an appeal whereby the extent of the prosecution failures in disclosure is the starting point. That is number 1. Then the number of times that failure is repeated, number 2. Over the number of years in which that behaviour was exhibited by the Post Office, number 3.  And number 4 is the years of denials that followed, right the way through to 2019 through the civil proceedings."
And so on. This is legal argument, and there are those who might say it is pointless legal argument. After all - the 35 appellants whose cases were being heard over the last three days are almost certain to have their convictions quashed anyway. But it's what the judges make of what they heard that matters. If the appellants' Ground 2 arguments succeed, and the judgment is strong, it might lead to more information about this scandal being uncovered.

The court might suggest there is more to be done to find out who was actually responsible for all this, something the Prime Minister said should happen today, in parliament.

Also, every appellant who gets an "affront to the public conscience" slapped on their conviction presumably has a stronger hand when it comes to seeking compensation.

When all the appellants' barristers had finished, Brian Altman, the Post Office QC, said he wished to make a brief statement. He said:

- the Post Office accepted both Mr Justice Fraser's judgments.
- the CCRC have conducted the investigations in these cases leading to the referrals the CCRC has made, the Post Office has not sought to go behind those investigations to do its own.
- if this did, it could undermine Fraser J which the Post Office has no desire to do.
- the Post Office has embarked on a post-conviction disclosure exercise almost unprecedented in size which has allowed the appellants to make the arguments they are making.

The disclosure exercise is extraordinary, between three and four million documents have been examined and released to the appellants. I think they should be available for journalists, too.

Mr Altman finished by saying: 
"We as counsel on behalf of the Post Office have placed before the court what we have submitted are points and arguments regarding the legal approach to second category abuse of process.  But given the very clear public interest in these appeals, which this court has stated before and with which we agree, our approach is that the determination whether or not these prosecutions leading to these convictions amounted to an affront to the public conscience as to render them limb 2 unsafe, which is a matter for this court to judge."
At the end of the day, the Lord Justice Holroyde confirmed there will be no convictions quashed this week - a judgment on all 42 cases can be expected in April. Tomorrow we start on the three former Subpostmasters whose appeals are wholly opposed by the Post Office. 

Proceedings begin again at 10.30am, Thursday 25 March.


I am currently running a crowdfunding campaign to ensure I can attend all relevant appeal court, high court and government inquiry hearings related to the Post Office Horizon IT scandal. Reward levels include access to the secret email, and a forthcoming book. Please click here for more information, and if you would like to support my work.