Saturday 23 January 2021

CCRC letter to the Court of Appeal about the Clarke Advice

The Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office Horizon scandal, lay undisclosed by the Post Office for more than seven years. It was written in July 2013. 

In it, the barrister Simon Clarke noted that evidence given during the prosecution of Subpostmasters by the Fujitsu engineer Gareth Jenkins was not the complete picture. Mr Jenkins is currently under investigation by the Metropolitan Police.

The Post Office sat on this document until 12 November 2020. 

In response to a query raised by the legal team working for Tracy Felstead, Janet Skinner and Seema Misra, the Clarke Advice was handed over to all the current appellants' legal teams. The contents of the Clarke Advice were sent to the Metropolitan Police by the barrister Paul Marshall and the barrister Flora Page sent it to a journalist.

The Post Office became aware of Ms Page's actions and raised them in court on 18 November 2020. As a consequence of this, the Metropolitan Police alerted the court to its receipt of the document on 19 November and destroyed it.

The same day in court Mr Marshall expressed his concern that the Criminal Cases Review Commission might not have seen Clarke Advice, basing that concern on the lack of any reference to it in the CCRC's Statement of Reasons, which led to the appeal proceedings we had all gathered to witness.

Shortly afterward the Sally Berlin, Director of Casework Operations at the CCRC sent the letter below to the Court of Appeal stating:

"We take the view that the contents of the Clarke advice are of potential relevance to ongoing CCRC reviews of Post Office cases. For that reason we have today written to Post Office Limited (‘POL’) - via their criminal law representatives, Peters and Peters Solicitors LLP - enclosing a statutory notice, issued under S17 Criminal Appeal Act 1995, formally requiring POL to provide us with the Clarke Advice. For the avoidance of any doubt, we also consider that the advice was of potential relevance to Post Office cases which have already been referred to the Court of Appeal."


"as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and perverting the course of justice in respect of particular expert witnesses, one of whom is the subject of the Clarke advice. We understand that the parties may wish to consider whether the Clarke advice – either in whole or in part - ought to be disclosed to the MPS investigation team. You may already have that in hand."

In her letter below, Ms Berlin states she wasn't sure if the CCRC had been disclosed the Clarke Advice in its five years of looking into Subpostmaster cases. It has subsequently been confirmed that the Post Office did not disclose the Advice, though it had given the CCRC the Altman review, which apparently refers extensively to the Clarke Advice.

I made a written application to the Court of Appeal to be disclosed the Clarke Advice, and even though the Post Office didn't seem that bothered in its written response, the Court of Appeal denied it to me. You can read the Court's reasoning and some commentary on that reasoning here.

The full letter from the CCRC follows...

CCRC Letter Re Clarke Advice Redacted by Nick Wallis on Scribd


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