Wednesday 28 April 2021

Page and Marshall in the clear

Flora Page with her legal team (posing like seasoned Eurovision entrants) outside court

One of the most extraordinary sideshows to the recent Court of Appeal proceedings came to a close yesterday with Lord Justice Fulford deciding that barristers Paul Marshall and Flora Page had no case to answer on the issue of contempt of court, which had been raised, but then not pursued, by the Post Office.

On 18 November last year, the Post Office barrister, Brian Altman QC, implicated both Page and Marshall in a possible contempt, due to the leaking of the now infamous Clarke Advice to a journalist. Flora Page 'fessed immediately, saying she had handed the document to her brother Lewis, a freelance hack. Ms Page apologised, referred herself to the Bar Standards Board and resigned her brief.

Mr Marshall, who was embroiled in a separate leaking of the Clarke Advice to the Metropolitan Police, walked soon after the Court of Appeal decided both he and Ms Page had a potential contempt case to answer. As he departed, Mr Marshall fired off a strongly-worded salvo

The pair had been representing Tracy Felstead, Seema Misra and Janet Skinner, and were early, at times lone proponents of asking the Court of Appeal to consider limb 2 of the CCRC's referral. 

Limb 2 argued that not only was the prosecution of several dozen Subpostmasters an abuse of process (through failure to properly investigate and/or disclose material) it was also an affront to the conscience of the court and therefore justice itself. 

Flora Page
As everyone now knows, the Court of Appeal decided, in the case of 39 appellants before it last Friday, the Post Office's prosecutions were an affront to the public conscience. This decision almost certainly led to the immediate departure from public life by former Post Office CEO, Paula Vennells. 

Reacting to the Court of Appeal's decision that she had no case to answer, Flora Page said: 

"I welcome today’s decision. Had I been given the opportunity, I would have given the same explanation and apology to the Post Office legal team as I gave to the Court: I provided the Clarke Advice to my brother, a responsible member of the press, with Paul’s agreement, because we expected it to be dealt with in court the following day, having appended it in full to our skeleton argument for that hearing. There was no question of Lewis or the Telegraph publishing anything from the document unless and until it was in the public domain. The Court ultimately found that I had been acting honourably.   
This was a diversion from the main issue. The fight for justice for up to 900 sub-postmasters wrongly convicted of theft, fraud and false accounting continues. It is vital that the Post Office is held to account for the devastation it has brought on so many people’s lives and livelihoods and does not do anything else to hinder any future investigations into what went so horribly wrong."

Shortly afterwards, Ms Page revealed that the Bar Standards Board "decided to close my self referral file in February. No further action."

Paul Marshall gave a lengthier, juicier, statement, laying into the Post Office's tactics:

"I remain troubled by the way that counsel for the Post Office raised the issue of contempt before the court of appeal on 18 November 2020 without giving reasonable notice to me of the intention to do so.

The Court of Appeal elicited acceptance that the provision of the Clarke Advice was an ‘error of judgment’ and that being done it was determined no further action was to be taken.

As is now clear the ‘Clarke Advice’ was pivotal in the Court of Appeal’s finding that for almost 15 years’ the Post Office was engaged in conduct that constituted an abuse of the process of the court and calculated to subvert the integrity of the criminal justice system or undermine public confidence in it.  Its disclosure resulted in the much later disclosure of the “shredding” Clarke advice.

Paul Marshall
Between 18 November 2020 and today, no one has identified to me a proposition of law that establishes (or supports) that disclosure of a document that casts serious doubt upon the safety of a convicted defendant’s conviction, which on highest authority it is a prosecutor’s duty to disclose when it comes to their attention even when all legal processes are exhausted, is disclosed subject to any restriction or inhibition upon use by them of such material. 

There is in my view a compelling public policy reason for there being no such inhibition or restriction - the public interest in identifying and correcting miscarriages of justice. Documents of this kind are different in kind to ordinary disclosure. 

The way in which this matter was first raised on 18 November 2020 had the effect that Flora Page and I felt unable to continue to represent our clients. That consequence was possibly an outcome not wholly unanticipated by the Post Office. One only needs to look back at the Bates litigation to see that the Post Office had a propensity to play ‘hardball’. Most obviously in its attempt to secure the recusal of the trial judge. But by the time I withdrew in December 2020 I had drafted a skeleton argument on ‘second category’ abuse of process, and reasons why the court should hear it, that my able successor Ms Lisa Busch QC was able to use on the hearing on 17 December 2020. 

The Post Office’s failure to disclose material in the Clarke Advice until 2020 was in violation of my clients’ rights under Article 6 of the ECHR which guarantees to them a trial, that extends to an appeal hearing, within a reasonable time. My three former clients collectively had to wait 44 years to have their convictions quashed. Material in the Clarke Advice ought to have been disclosed in 2013, specifically to Mrs Misra because it was at her trial in 2010 Mr Jenkins gave live oral evidence as an expert for the Post Office.

I am confident that, but for inquiries about circumstances in 2013, that I caused to be made by Aria Grace Law in November 2020 that elicited the Clarke Advice, it would not have
been disclosed by the Post Office in 2020. Without Flora Page’s and my efforts none of the 39 appeals would have been quashed on the basis of second category abuse of process. The importance of the Court of Appeal’s decision on second category abuse is that it carries the corollary that the appellant is wholly exonerated and ought never to have been prosecuted. 

Importantly, the finding also exposes the mendacity of the Post Office prosecution policy, contaminated as it was by its improper defence/protection of its Horizon system. That is a source of considerable satisfaction to me and also testimony to the intellectual capacity, moral courage and public-spirited contribution of Flora Page who was the only lawyer, other than our instructing solicitor Nick Gould at Aria Grace, who prior to my withdrawing from the case in December 2020 concurred with my analysis as later accepted by the Court of Appeal by its 23 April judgment."

I think he's a bit pissed off.

The appellants' success on limb 2 will have far-reaching implications - one suspects the CPS might take a closer interest in the activities of Post Office executives, and Professor Richard Moorhead, the legal world's well-regarded ethics guru, has already had a thing or two to say on the activities of the Post Office's internal and external lawyers throughout this scandal. 

The limb 2 success also rather strengthens the hands of now 45 Subpostmasters whose convictions have been quashed, and who will now be seeking some life-changing compensation as a result.

As an aside, when Mr Altman stood up on 18 November and told the court (out of what he said was his "duty") about the leaking of the Clarke Advice, casually mentioning it might be a criminal offence, a chill went down my spine. When I saw the court's reaction, I felt sick. I can only do this job if people give me documents, and journalists rely on good people attempting to do the right thing. 

Seema, Janet and Tracy

For just one brief moment, as I saw the government-owned Post Office colluding with the justice system to potentially rub out the careers and livelihoods of two well-meaning individuals, I got the tiniest flavour of what it must have been like to be a helpless Subpostmaster on their way to a criminal conviction and a ruined life, with not even the slightest chance of changing the outcome.

I am very glad, in this instance, good sense prevailed.


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.