This is the unperfected transcript from Court 4:
1 Monday, 22 March 2021
2 (10.33 am)
4 THE CLERK OF THE COURT: The observers on the CV platform
5 are reminded that no recording of these proceedings are
6 allowed to take place.
7 My Lord, there are participants on the platform who
8 are from the media.
9 LORD JUSTICE HOLROYDE: Thank you very much. Can I just
10 express, for those who are attending remotely, that we
11 hope you will be able to sufficiently observe and hear
12 proceedings. We are aware that there have been one or
13 two aspects of the arrangements which are not as ideal
14 as we would wish, but everyone will have appreciated the
15 constraints of social distancing and it imposes
16 practical limitations on what can be achieved.
17 We are grateful for all that has been done to enable
18 proceedings to be conducted in this court, with
19 an overflow court, and also the people who are attending
21 Mr Moloney, I wonder if I can address counsel
22 through you. We should, at the very outset, address the
23 position of those who are interested in reporting
24 proceedings. The court alerted counsel, I think last
25 week, to our preliminary view, which is: we don't think
1 there will be any need for reporting restrictions now
2 that we are at the final hearing of these appeals, but
3 we indicated that if anybody wished to make any
4 submissions to the contrary, that they should be ready
5 to do so at this stage of the proceedings.
6 MR MOLONEY: No.
7 LORD JUSTICE HOLROYDE: Are you able to assist us in
8 relation to your position or the position of --
9 MR MOLONEY: We have no submissions, my Lord, and I know of
10 no others amongst the appellants.
11 LORD JUSTICE HOLROYDE: Does anybody think there is going to
12 be any need for any reporting restrictions?
13 Very good, then we will confirm that we see no need
14 for any reporting restrictions. Those who, in their
15 roles as journalists, wish to live tweet the proceedings
16 may do so in accordance with the usual principles.
17 Really, the only other matter to mention,
18 Mr Moloney, to all counsel through you, before we start
19 submissions is this: it can be assumed that the court is
20 familiar, of course, with the CCRC references and with
21 the relevant judgments from the civil proceedings. But
22 there are a lot of papers in the case, and anyone who
23 wishes us to take note of any particular document
24 should, please, identify it and give us time to find it
25 in our hard copies, so that we all know exactly what --
1 MR MOLONEY: Of course, my Lord, yes.
2 LORD JUSTICE HOLROYDE: All right?
3 Very good. Thank you very much, Mr Moloney.
4 MR MOLONEY: Thank you, my Lord, and my Lady.
5 As your associate has just said, this is of course
6 a reference from the Criminal Cases Review Commission.
7 There is a draft order of proceedings; would it be of
8 assistance to the court if I was to introduce
9 representation, to begin with?
10 LORD JUSTICE HOLROYDE: It would indeed.
11 MRS JUSTICE FARBEY: Apologies, you are probably not sitting
12 where you would have been according to social
13 distancing, and I am having a little bit of trouble
14 hearing on this side.
15 MR MOLONEY: I will speak up, my Lady, and thank you for
16 that indication and help.
17 My Lords and my Lady, I appear on behalf of the
18 appellants represented by Hudgell solicitors, along with
19 Ms Raghallaigh.
20 For the appellants Misra, Skinner and Felstead,
21 Ms Busch, Queen's Counsel, with Dr Sam Fowles and Olivia
23 For the appellants Fell, Darlington, Shaheen, Holmes
24 and Lock, Mr Stein, Queen's Counsel, and
25 Mr Lynton Orrett of counsel appear.
1 For the appellant Mr Parekh, Mr Sandip Patel,
2 Queen's Counsel, appears.
3 For the appellant Carl Page, Mr Saxby, Queen's
4 Counsel, appears. I have not been able to see him this
5 morning, but I know he represents Mr Page.
6 LORD JUSTICE HOLROYDE: I think also Mr Owen, perhaps.
7 THE CLERK OF THE COURT: Mr Saxby and Mr Owen will be on
9 MR MOLONEY: Thank you.
10 For Mr O'Connell, it is Mr Ben Gordon of counsel.
11 THE CLERK OF THE COURT: By CVP, also.
12 MR MOLONEY: For the respondents, we have Mr Brian Altman,
13 Queen's Counsel, Ms Zoe Johnson, Queen's Counsel,
14 Mr Simon Baker, Queen's Counsel, and Jacqueline Carey.
15 LORD JUSTICE HOLROYDE: Yes. Would you deal with the
16 representation of Mr Hussain?
17 MR MOLONEY: I thought I did. It is Mr Millington Queen's
18 Counsel and Mr Ragveer Chand. I apologise.
19 LORD JUSTICE HOLROYDE: Thank you very much. Thank you,
21 MR MOLONEY: Thank you.
22 My Lord, the order of proceeding anticipates, this
23 morning, general submissions in relation to grounds 1
24 and 2, and with me leading off in relation to those
25 general submissions. But it is anticipated that there
1 would be additional general submissions on ground 2 from
2 Mr Stein Queen's Counsel and Ms Busch Queen's Counsel.
3 LORD JUSTICE HOLROYDE: Yes.
4 MR MOLONEY: My Lord, we -- Mr Stein, Ms Busch, and I --
5 have been liaising for the last past week or so in
6 relation to submissions. We are mindful of the need to
7 avoid repetition whilst ensuring the points relied on by
8 each appellant is put before the court in order that
9 justice may be done to their cases. So, Ms Busch and I
10 have produced speaking notes in order to try and do the
11 best to ensure those points are available to the court.
12 Given that the court will not deliver judgment until
13 23 April, we also thought the notes would be a useful
14 aide-memoire for the court going forward. I hope
15 my Lords and my Lady have our speaking note in relation
16 to both grounds 1 and ground 2.
17 LORD JUSTICE HOLROYDE: Yes, thank you, Mr Moloney. We
18 received your note and some associated documents
19 electronically, earlier this morning, and hard copies
20 have helpfully been provided. We have also received
21 Ms Busch's speaking note, although, certainly speaking
22 for myself, I have literally only picked it up, I
23 haven't been able to read it.
24 Our thanks to everyone for the preparation of those
25 and, more generally, can I say that we are very grateful
1 to all counsel for the obvious cooperation which has
2 gone into making these proceedings run as efficiently as
4 Submissions by MR MOLONEY
5 MR MOLONEY: Thank you, my Lord.
6 Might I then turn, my Lord, to the general
7 submissions and my speaking note in relation to ground
8 1, abuse of process.
9 LORD JUSTICE HOLROYDE: Yes.
10 MR MOLONEY: I hope we can take these relatively shortly and
11 focus our main submissions on ground 2 during the course
12 of this morning.
13 The appellants before this court were prosecuted by
14 the Post Office Limited between 2000 and 2013. There
15 are some 42 appellants before the court. Five were
16 convicted by a jury following trial. Of those four, one
17 had pleaded guilty to false accounting before their
18 trial, ten pleaded guilty to theft and 27 pleaded guilty
19 to false accounting or fraud.
20 Of those 42, the respondent concedes that 39 of
21 their appeals should be allowed on the basis of
22 ground 1. Ground 1 of the two grounds of appeal
23 referred by the commission. Ground 1 is, in essence,
24 a limb 1 abuse of process, which means essentially the
25 appellants' convictions were unsafe because they could
1 not or did not have a fair trial.
2 The general basis for the concession made by the
3 respondents in relation to those 39 appeals is found at
4 paragraphs 9 to 10 of the respondent's consolidated
5 respondent notice and is summarised at paragraph 10 in
6 the following way:
7 "In those cases set out below where the reliability
8 of Horizon data was essential to the prosecution and
9 conviction of the appellant; where there was inadequate
10 investigation and/or, and full and accurate disclosure
11 was not made, the respondent does not resist the appeal
12 on the grounds that the non-disclosure amounted to first
13 category abuse of process."
14 In that respondent's notice, the respondent has
15 summarised, essentially, the factual basis for why the
16 reliability for Horizon was in issue in each case,
17 accepted that there was a failure to investigate, and
18 accepted that the absence of disclosure prevented the
19 proceedings from being fair.
20 We say that the 39 cases bare out a similar and
21 often identical picture. In some cases, the respondent
22 has been able to point to particular investigative
23 failings relating to accounts given in interview,
24 failures to investigate helpline calls, or failure to
25 investigate ARQ data. They have accepted that the
1 respondents could not prove that there had in fact been
2 a shortfall or real financial discrepancy. We say that
3 the lowest common denominator is that, in these 39
4 cases, there has been material non-disclosure which
5 rendered proceedings unfair and the convictions are
6 thereby unsafe.
7 The court then has to decide what to do with those
8 concessions. We adopt them, but the court is not bound
9 by them.
10 It is a matter for the court to decide whether, on
11 the basis contended for the appellants' convictions are
13 My Lords and my Lady are familiar from earlier
14 arguments in this court as to the importance of
15 McIlkenny and Maguire in the decision the court has to
16 come to in relation to these grounds, but we submit the
17 concessions made by the Post Office Limited are adequate
18 in order to make out a limb 1 abuse of process.
19 The court will be addressed on the material before
20 it and, of course, the submissions in relation to
21 ground 2 will be developed to the new material before
22 the court found an abuse of process on the basis that
23 these prosecutions were an affront to justice. There is
24 of course a factual overlap between the two grounds.
25 To that end we don't rehearse the details of the
1 concession which unpin ground 1, but simply emphasise
2 those matters that are set out at paragraphs A to I, on
3 pages 3 and 4 of our speaking note, that the focus of
4 ground 1 is fairness to the accused; that the centrally
5 important factor in the analysis of whether or not there
6 would be an unfair trial is the relationship between the
7 prosecutor and the defendant; the foundational features
8 of the relationship are the prosecutor's obligations to
9 investigate reasonable lines of inquiry, and to disclose
10 to the defendants that which undermines the prosecution
11 case or assists the defence.
12 If Horizon was essential to the allegations against
13 the 39 appellants for whom concessions have been made,
14 those concessions are correct, we say, and the basis of
15 them was shortfalls and discrepancies recorded by the
16 Horizon system. The integrity of that system was in
17 fact determinative of whether or not those things
18 existed in fact.
19 Appellants had raised issues with Horizon during
20 their interviews with Post Office Limited, and some of
21 them were simply at a loss to explain how the
22 discrepancies had occurred.
23 Post Office Limited was in control of that Horizon
24 data, which was essential to the prosecutions of these
25 people and could determine the extent to which that data
1 was obtained, investigated, and disclosed. The extent
2 to which Post Office Limited in fact did any of those
3 things was determinative of whether the appellants would
4 be in a position to defend themselves in any meaningful
6 There are, we say, from the 39 cases dealt with in
7 the consolidated respondent's notice, real difficulties.
8 There is an absence in many cases of any investigation
9 into Horizon, let alone one which conceivably could be
10 considered adequate.
11 Many appellants in these cases pleaded guilty in the
12 face of the difficulties that they faced in defending
13 themselves, being deprived of any meaningful way of
14 defending themselves, and the combination of those
15 factors, at A to H, caused unmitigated prejudice to each
17 That all being before the court, we say there is no
18 reason for this court to doubt those concessions or the
19 bases for them and we submit therefore that ground 1 is
20 made out.
21 If I could now respectfully turn to ground 2.
22 LORD JUSTICE HOLROYDE: Yes.
23 MR MOLONEY: It is just said the Post Office concedes that
24 the prosecution of 39 of these appellants constitutes
25 an abuse of process.
1 We just outlined the basis on which those
2 concessions were made: inadequate investigation; lack of
3 full and accurate disclosure; non-disclosure.
4 Within that context where the respondent now
5 concedes that these appellants could not have a fair
6 trial, or have the shame and humiliation of arrest and
7 prosecution, all experienced the enormous psychological
8 toll associated with that process. A large number
9 received a custodial sentence. Many immediately went to
10 prison, some saw their marriages break up, others
11 suffered bankruptcy, and some are dead having gone to
12 their graves with their previous convictions still
13 extant. One of these appellants has spent the last nine
14 years being of bad character and now is suffering from
15 terminal brain cancer.
16 Those cases are not before the court, but it is
17 plain there has been more extensive damage caused to
18 people who were of previous good character, working as
19 sub-postmasters in these branches for the respondent.
20 All of that damage, we say, was caused by unfair
21 recovery of alleged debt and unfair trials stemming from
22 defective software and an abject failure on the part of
23 the respondents to effectively assess, let alone
24 effectively address, the defects in that software and
25 their implications for so many blameless individuals.
1 We have identified five main themes in which that
2 approach from the respondent can be demonstrated.
3 Firstly, the recovery of money from those who were
4 not prosecuted through the aggressive enforcement of
5 unfair contract terms.
6 Secondly, the failure to properly investigate
7 whether or not the complaints about Horizon had any real
9 Thirdly, the failure to disclose who was known about
10 the inadequacies of the Horizon system.
11 Fourthly, the improper conditions placed on plea
12 deals, which, because they effectively absolved Horizon
13 of responsibility for the cases, cannot be divorced from
14 the failure to properly investigate whether or not the
15 complaints about Horizon had any real substance, nor
16 indeed the failure to disclose what was known about the
17 inadequacies of the Horizon system.
18 Finally, the collateral motives in prosecution.
19 MR JUSTICE PICKEN: Can I just ask a question?
20 MR MOLONEY: My Lord, yes.
21 MR JUSTICE PICKEN: In the first case, recovery of monies
22 from those who were not prosecuted, just help me with
23 where that fits in with (Inaudible) in relation to
25 MR MOLONEY: Absolutely, my Lord.
1 MR JUSTICE PICKEN: If you are coming on to it, don't worry.
2 MR MOLONEY: I am coming on to it, but I will flag it now,
3 if I may, my Lord?
4 Essentially, we say the approach of the respondents
5 was unitary. There is a term that is used -- and I will
6 come on this -- that is: the respondent is the business.
7 My Lords may have seen that reference to that term
8 within the skeleton argument of the respondents.
9 That approach, that problem in relation to
10 investigative failings and disclosure failing was as
11 present in the prosecution of the unfair contract terms
12 as it was in the prosecutions, we say, and the court
13 should consider this as a unitary process, a unitary
15 We take each in turn. Before we do, my Lords, may
16 we first alight upon how it is that the first signs of
17 Horizon's unreliability emerged? Because what we now
18 know is that there were concerns about Legacy Horizon,
19 that software system, from the very outset.
20 We apologise for not being able to get these into
21 the bundles before now, my Lords and my Lady, but we
22 have put before the court this morning recently
23 disclosed minutes of a board meeting, or a number of
24 board meetings, of the respondents which took place in
25 1999 and 2000, as Legacy Horizon was being "rolled out",
1 as the term is used, across the branches of the Post
3 This is a disclosure note given to the appellants by
4 the respondent, on 11 March of this year. It is some
5 six pages.
6 If I could start on page 1, with the minutes of the
7 Post Office board meeting of 20 July 1999. That is at
8 the bottom of page 1, but over on to page 2.
9 We can see in those minutes, towards the top of the
10 second page, there is a description of the incidents
11 which have been occurring with Legacy Horizon in
12 preparation for its roll out across the branches.
13 Underneath (v), we see that system roll out was
14 scheduled for 23 August 1999, with acceptance needed by
15 18 August. There were three categories of acceptance,
16 each with a threshold which would determine whether or
17 not roll out could proceed: high, medium and low.
18 One incident within the high category or more than
19 20 incidents within the medium category would result in
20 the system not being accepted. Currently, there were
21 270 incidents of which one was high and 29 were medium.
22 Going then, if I may, to the same meeting at (xii),
23 which is at the top of page 3. Members were concerned
24 that a number of technical issues remained unresolved
25 and that the BA contract position was still unclear.
1 These were two critical issues and needed to be
2 progressed further before the board would be content for
3 the contract with ICL to be signed. ICL, of course, was
4 essentially bought out by Fujitsu around this time.
5 An update on the negotiating position with BA would
6 be provided to members who were content that the final
7 decision on whether or not to sign the contract be
8 remitted to the chairman and chief executive.
9 LORD JUSTICE HOLROYDE: Forgive me, BA, what does that stand
10 for in this paragraph?
11 MR MOLONEY: May I come back to my Lords on that? I might
12 seek the assistance of the respondents on that,
14 LORD JUSTICE HOLROYDE: All right.
15 MR MOLONEY: Thank you, my Lord.
16 Then we have the minutes of the board meeting of
17 14 September 1999, where we see at (iii) that Horizon,
18 when the board last met in July, the Horizon programme
19 director had been confident that system acceptance would
20 occur as planned, on 18 August. Unfortunately, three
21 high priority acceptance incidents around training, and
22 then stability of the system, lock ups and screen
23 freezes, and the quality of accounting data remained
24 unresolved. Whilst ICL did not accept the
25 categorisation of these incidents, they had nevertheless
1 resulted in acceptance being deferred until
2 24 September.
3 Then at (v), progress on training had gone well and
4 the incident had now been downgraded to medium priority.
5 However, system stability and accounting was still being
6 analysed and rectification was not expected
7 before December.
8 Over the page, if I may, please, my Lords and my
9 Lady, to page 4, where it is revealed that a report was
10 given to that board meeting, which was the Post Office
11 Counters Limited monthly performance report. Within
12 that report, under the heading, "Management Technology",
13 was the following:
14 "At the (Inaudible) acceptance board, on 18 August,
15 ICL were advised that because, in POCL's view, [Post
16 Office Counters Limited] there were three high severity
17 acceptance incidents and 12 medium to severity
18 acceptance incidents, six of which had no agreed
19 rectification plan, the contractual acceptance condition
20 had not been met."
21 Then, over to page 5, if I may, please,
22 paragraph 3.4 reveals that there was a board meeting on
23 30 November 1999, which had the benefit of a report from
24 the chief executive. Again, under "Harnessing
25 technology", it reads:
1 "The traffic light for this milestone has changed to
2 amber this month to reflect the current uncertainty
3 around Horizon meeting the acceptance criteria."
4 It goes on to say there will be a formal review on
5 7 January. We then see that, on 11 January, there is
6 another board meeting, that is 11 January 2000, where
7 the board received an update on the Horizon programme.
8 The minutes of that report, as far as they are material,
9 provide at (i):
10 "The roll out of Horizon was due to commence on
11 24 January. A great deal of work had been undertaken to
12 rectify difficulties identified in three areas: system
13 stability, accounting integrity, and the provision of
14 support to offices. Although as yet uncertain, it was
15 anticipated that these issues would not prevent roll out
17 So, we say it is plain, my Lords and my Lady, from
18 the very outset that there were difficulties with the
19 integrity of Horizon, which were obvious at the highest
20 levels of governance in the Post Office.
21 LORD JUSTICE HOLROYDE: Sorry to interrupt, Mr Moloney, but
22 I would just like to clarify this issue before we move
24 The paragraph 3.5, 11 January (Inaudible).
25 MR MOLONEY: Yes.
1 LORD JUSTICE HOLROYDE: Reference to recommencing the
2 rollout, or commencing -- are we to infer that something
3 happened (Inaudible).
4 MR MOLONEY: Yes, think what happened, my Lord, perhaps
5 characteristic of any roll out, was that a certain
6 number of branches were, as it were, pilot studies for
7 the use of it. Then, whether or not acceptance was
8 achieved within those branches, then there would be full
9 roll out. So --
10 MR JUSTICE PICKEN: I think, in fact, that is the point made
11 at the top of that page (Inaudible).
12 MR MOLONEY: Indeed, my Lord, thank you.
13 LORD JUSTICE HOLROYDE: (Inaudible).
14 MR MOLONEY: We actually see, my Lords and my Lady,
15 a replication of those difficulties, when, 10 years
16 later, the Post Office adopts Horizon online as its new
17 software system, and Mr Justice Fraser dealt with those
18 difficulties in detail, at paragraph 455 of his
20 I won't take my Lords and my Lady to it yet, but we
21 will come back to it when dealing with Horizon online
22 and the ISME(?) report and what happened around 2010.
23 MR JUSTICE PICKEN: But this material, which has been
24 recovered from the Post Office Museum not disclosed in
25 the civil proceedings?
1 MR MOLONEY: It seems not, my Lord.
2 What we can see is that the roll out of Horizon was
3 substantially delayed because of concerns about its
4 reliability, and the board of the Post Office sanctioned
5 that course.
6 So, we say that this is not a situation -- when we
7 see sub-postmasters reporting inexplicable problems with
8 their accounting software from almost the moment that
9 Horizon is rolled out. This is not a situation where
10 difficulties with Horizon were a dawning realisation for
11 the institution, a realisation that developed over
12 a number of years.
13 Instead, the very highest levels of management and
14 governance in the Post Office were on notice as to the
15 very real potential for Horizon to malfunction, to
16 misfire before it was fully implemented. We
17 respectfully say that fact is fundamentally important
18 for any assessment of the adequacy of the reaction by
19 the institution to those who did experience difficulty
20 with the operation of Horizon, because far from
21 recognising that sub-postmasters may be genuine in their
22 complaints about the operation of Horizon, which we say
23 would be a natural reaction to an institution that was
24 aware that there had been difficulties with Horizon
25 prior to implementation. What this institution did,
1 what this business did, was that it chose to disbelieve
2 each of the sub-postmasters of previous good character
3 who complained of the faults in the operation of
5 It chose to ignore the distress that was being
6 suffered by those sub-postmasters when the Post Office
7 alleged that they were responsible for the shortfalls,
8 and it demanded that they repay every penny of the
9 apparent shortfalls or face legal action, whether that
10 be civil action or prosecution.
11 In fact, on many occasions, even repaying what was
12 owed would not prevent prosecution.
13 May we then just deal very briefly with the
14 relationship between ground 1 and ground 2, before
15 moving on to the specifics that we have already
16 outlined, the five factors?
17 Because we need to do so, we submit, because there
18 is overlap between limbs 1 and 2, both legally and
19 factually, but there is also a distinction between
20 limb 1 and limb 2 abuse between ground 1 and ground 2 in
21 these appeals.
22 The distinction between fair trial abuse and
23 essentially it being unfair to try a defendant found
24 early expression in Bennett. I know my Lords and
25 my Lady will be familiar with the principles of abuse of
1 process, so I intend to take this very shortly, at this
2 stage, and return to it towards the end of my
4 But, essentially, what was said in Bennett, as far
5 as ground 2 abuse is concerned, is that because the
6 judiciary accepts a responsibility for the maintenance
7 of the rule of law, that embraces a willingness to
8 oversee executive action and to refuse to countenance
9 behaviour that threatens either basic human rights or
10 the rule of law.
11 Whilst the two bases can be considered
12 disjunctively, the overlap between the two bases is
13 countenanced and we see that in the dictum of
14 Lord Justice Neill in the case of Beckford, which we set
15 out at paragraph 19 of our speaking note, where
16 Lord Justice Neill said that in some cases of course the
17 two categories may overlap.
18 Whilst the rationale for limb 2 abuse ordinarily
19 assumes the ability of the State to hold a fair trial,
20 as can be seen in the formulation of Lord Lowry in Hui
21 Chi-ming v The Queen, where the test that is articulated
22 was that something so unfair and wrong that the court
23 should not allow the prosecution to proceed with what
24 is, in all respects, a regular proceeding. There can
25 be, in essence, both grounds of abuse, both limbs of
1 abuse, within a single set of proceedings as is before
2 the court today.
3 We rehearse that background because these are not
4 regular proceedings. This is essentially the essence of
5 our argument going forward: there is a concession on
6 fair trial for particular reasons. We say there is
7 a close relationship between those particular reasons
8 which underpin limb 1 and the particular reasons which
9 underpin limb 2.
10 In particular, we say that there should not be
11 an artificial relationship between the facts which found
12 the concession on limb 1 and the facts which found the
13 concession on ground 2 because those concessions in
14 ground 1 have implications for the issues in ground 2.
15 Now turning to the specifics of the abuse and coming
16 essentially to the point that my Lord, Mr Justice Picken
17 raised, about why it is that the recovery of money from
18 those who were not prosecuted through the aggressive
19 enforcement of unfair contract terms is relevant to this
20 court's consideration.
21 It might be argued that contractual oppression
22 should be divorced from the consideration of any
23 prosecutorial unfairness. In the ordinary run of
24 events, such a distinction might well be appropriate.
25 If these cases had been prosecuted by the Crown
1 Prosecution Service, then such a distinction would very
2 likely be appropriate, because the prosecutorial
3 decisions taken by the Crown Prosecution Service would
4 properly be regarded as independent of any contractual
5 enforcement taken by the Post Office.
6 But, in circumstances where the prosecutor is also
7 the complainant, when the complainant is pursuing civil
8 recovery against the postmasters, as well as pursuing
9 prosecutions of sub-postmasters on essentially the same
10 facts, then the distinction is, we say, entirely
11 inappropriate and effectively illusory.
12 A heavily resourced institution of national stature,
13 like the Post Office, which commanded the trust of the
14 public, its employees and the State, might have been
15 expected to mitigate the tension between being
16 complainants and being prosecutor. (Inaudible) the
17 prosecutor of crimes it alone decided it was the victim,
18 as complainant and prosecutor.
19 We submit the evidence in this case is consistent
20 with the respondent, as an organisation, having made
21 decisions to resist any suggestion that Horizon was
22 compromised. We say those decisions were arguably borne
23 of a precedence which has been afforded to the
24 institution's imperative of protecting Horizon and
25 thereby its own reputation.
1 We say, and we take some assistance -- and we hope
2 this is not in any way underhand, but we take assistance
3 in this submission from the respondent's skeleton
4 argument, as we said. Because, at paragraphs 81 and 82
5 of the response to the skeleton arguments on behalf of
6 the appellants, the respondent addresses our skeleton
7 argument and states, at paragraph 81, that reference is
8 made to the content of a document within the disclosure
9 which is said to demonstrate the prosecution being, or
10 not being, in the business interest of Post Office
11 Limited, leading to the argument that there is no
12 apparent lawful basis on which the respondent could have
13 decided to prosecute individuals based on their own
14 business interest. It is said that this is
15 a misquotation and a misreading of the memo from
16 Jarnail Singh to Martin Smith of Cartwright King, on
17 10 December 2012. In fact, the document reads:
18 "It is not in the business or public interest to
19 proceed with the prosecution of a sub-postmaster, not
20 among the referred appellants."
21 It is explained that "business" is used internally
22 to describe Post Office Limited.
23 It is clear the use of the term in the email, in
24 combination with the term "Public interest" is not about
25 a commercial decision whether or not to prosecute.
1 In seeking to draw a distinction between business
2 interests in a more general sense and the interests of
3 the business, then even if -- which we don't accept --
4 that distinction is tenable for a commercial
5 organisation like Post Office Limited, the respondent
6 has only highlighted that the interests of the Post
7 Office Limited business were at the heart of the private
8 prosecutorial decision-making in these cases, and that
9 the business has a unitary nature.
10 May we take my Lords and my Lady to the first
11 document that we wish to draw your attention to? Which
12 is found at page 769 of bundle C.
13 This is a page from the schedule of disclosable
14 extracts, which we received from the respondent at
15 different stages of the disclosure process. It is
16 an extract from the Post Office Limited board minutes
17 for the meeting of 12 January 2012. This is when
18 concern is developing internally as to the media around
19 the issue of the reliability of Horizon and the
20 challenge to the integrity of the Horizon system by
22 We know, of course, this had in fact been going on
23 since 2003 at the very latest because all the other
24 disclosable extracts that we have received in this form
25 show complaints of this nature, right the way through
1 from 2003 through to 2013. But, here, we have the
2 minutes of the board meeting, where the quote is that
3 the business has also won every criminal prosecution in
4 which it has used evidence based on the Horizon system's
6 We respectfully say that the business interest,
7 which motivated the contractual dispute, was the same
8 business interest which motivated prosecution, or they
9 cannot be separated out. There could be no clearer
10 statement of the unitary nature of this entity when it
11 was conducting prosecutions than the statement that the
12 business has also won every criminal prosecution in
13 which it has used evidence based on the Horizon system's
15 In each contractual dispute, what the Post Office
16 did was to assume that the sub-postmasters were
17 responsible for the shortfalls, even though they
18 couldn't establish the shortfalls. They assumed that
19 the sub-postmasters were responsible and then they
20 sought to recover from them and/or prosecute them unless
21 they could prove their innocence. That attitude
22 persisted, we respectfully say, even through the GLO
23 litigation, and that much was found by Fraser J at
24 paragraph 462 of the common issues judgment, when he
1 "In any event, the evidence of Ms Dickinson does
2 demonstrate the Post Office's default position regarding
3 their SPMs. This is that shortfalls and discrepancies
4 are not caused by the Horizon system. Therefore those
5 that do occur can only be the responsibility of SPMs."
6 This conclusion means that the Post Office fraud
7 prevention and debt recovery procedures will be used
8 against sub-postmasters in this position, unless
9 a sub-postmaster can show that the shortfall or
10 discrepancy was not their fault.
11 Mr Justice Fraser illustrated that approach later
12 on, in the common issues judgment, when dealing with the
13 potential for dispute between a sub-postmaster and the
14 Post Office to be resolved. At 566 of that judgment, he
16 "However it remains the case that there was no
17 separate mechanism established at any stage to resolve
18 the disputed shortfalls and discrepancies. As the
19 flowchart at appendix 5 demonstrates, unless the
20 sub-postmaster could identify with precision the day and
21 time of the fault he or she alleged, the Post Office
22 will not assist. This is clear from the entry:
23 "'Can agent provide specific day and timeframe for
24 alleged fault?'.
25 "Where, if the answer is no, the following entry
2 "'Advise, unable to progress further until can do
4 That is the practical manifestation of the attitude.
5 That document emanated from 2012 to 2013. But
6 demonstrating the enduring, pervasive and ultimately
7 unjustified approach of the respondent at fault
8 throughout the period of the prosecution before this
9 court, Fraser J made a specific finding that, as far as
10 the document is concerned, that is mentioned at
11 paragraph 566, he found that this correctly identifies
12 the Post Office's approach to this issue raised by
13 sub-postmasters from the introduction of Horizon
15 We say that approach reflected, and arguably stemmed
16 from, the apparent refusal on the part of the respondent
17 to countenance the potentiality unless it was proven by
18 the sub-postmaster that the Horizon software system
19 might be responsible for the shortfalls being discovered
20 in the sub-Post Offices the length and breadth of the
21 United Kingdom. It was for the sub-postmaster to prove
22 that this was Horizon or it was their fault.
23 That approach then infected each and every stage of
24 the prosecutorial process.
25 Now, at this point in our speaking note, we divert
1 slightly just to mention the case of Tague v Governor of
2 HM Prison, Full Sutton. We will not go to into it at
3 this stage. But, in order to develop or alight upon the
4 fact that this is not a public prosecutor, and this is
5 not the Crown Prosecution Service, where -- because the
6 president, Lord Justice Leveson in this case, identifies
7 that one has to be careful about what might be described
8 as "mere State incompetence". We say that we can firmly
9 distinguish the actions of the respondent from the mere
10 State incompetence that is observed by the President in
11 case of Tague v Full Sutton.
12 MR JUSTICE PICKEN: Before you do, Mr Moloney, coming back
13 to the question I raised about the (Inaudible), if you
14 go back to paragraph 5, do you find that the issue is
15 recovery of money from those who work not (Inaudible)?
16 What I think you are actually saying is the recovery
17 is done between the (Inaudible) contract terms. You
18 don't need (Inaudible) and in fact (Inaudible) focus
19 primarily at least on those who were prosecuted,
20 otherwise noting that those (Inaudible) pursuit of
21 public money.
22 MR MOLONEY: With respect I entirely agree, my Lord, and
23 I suppose the refinement of what I am saying is that
24 a unitary approach --
25 MRS JUSTICE FARBEY: Are you saying that in effect there is
1 a pincer effect, because on one hand you are reporting
2 unfair contract terms, and on the other hand you have
3 the criminal justice procedure and the business, as it
4 is referred to in the notes, whether that means the
5 commercial side or the Post Office side, internal
6 phraseology, the business is front and centre of
7 that pincer effect?
8 MR MOLONEY: My Lady, yes, and that the same attitude
9 pervades all of the operations of the business. That
10 attitude is one of institutional resistance to the idea
11 that Horizon may be to blame for what is being seen in
12 the branches across this country.
13 MR JUSTICE PICKEN: The business, with a capital B or little
14 b, doesn't matter because the Post Office is a business.
15 MR MOLONEY: Absolutely, my Lord.
16 MR JUSTICE PICKEN: It is not therefore a purely
17 prosecutorial function.
18 MR MOLONEY: Yes, my Lord.
19 MR JUSTICE PICKEN: Coming back to (i), I put it in square
20 brackets because (Inaudible), it would suggest in light
21 of (Inaudible) further definition.
22 MR MOLONEY: I will put those square brackets there myself,
23 my Lord, thank you.
24 LORD JUSTICE HOLROYDE: Just before you move on, Mr Moloney,
25 simply as a matter of interest, because I don't think
1 I've seen the answer to this in the papers, does POL, or
2 the modern successor body, it may be, still conduct its
3 own prosecutions?
4 MR MOLONEY: My Lord, no.
5 LORD JUSTICE HOLROYDE: I didn't think it did. Thank you.
6 MR MOLONEY: Having set that context of the overall
7 approach, may I turn now to the failure to properly
8 investigate whether widespread concerns about Horizon
9 had any substance? This is at page 10 of our speaking
10 note, at paragraph 44.
11 What we say is: just as the consideration of the
12 overall conduct of prosecutions by POL cannot be
13 artificially separated from consideration of the overall
14 conduct of the response as a whole, because the cases
15 before the court were private prosecutions and the
16 business was acting in a unitary way, and in effect the
17 respondent was complainant, investigator, and
18 prosecutor, then investigative failings by the Post
19 Office in the prosecutorial context cannot be divorced
20 from the institutional failure of Post Office Limited to
21 investigate the shortcomings of Horizon. So, we set out
22 the more general investigative failings to begin with,
23 and then go to failings of a specific nature in
25 As we have said earlier, the board was on notice
1 from before the roll out of Horizon of its potential to
2 seriously malfunction and that board knew it had
3 commissioned a software programme, which it had been
4 unable to implement as planned and had been required to
5 delay its implementation whilst reliability issues were
6 addressed, and even proceeded with some outstanding.
7 We say what follows shortly thereafter, with peak
8 number, PC-006-5021 is, we say, genuinely extraordinary
9 because the background to that peak is set out at
10 paragraphs 208 to 212 of the Horizon issues judgment of
11 Mr Justice Fraser when dealing with the evidence of
12 Mrs Van Den Bogerd.
13 What Mr Justice Fraser does is describe that phantom
14 transactions noted in this matter peak in April 2001
15 which is a matter of months after roll out had been
16 authorised, and that Royal Mail's own engineering
17 personnel had been able to confirm the phantom
18 transactions -- reported by sub-postmasters after making
19 site visits to witness them for themselves.
20 We set out the judgment of Mr Justice Fraser between
21 paragraphs 209 and 211 to begin with, where he recounts
22 that, at paragraph 209:
23 "She gave evidence about out of hours transactions
24 and so-called phantom sales, the latter of which she
25 explained in her written evidence as follows:
1 "'I am informed by Post Office's solicitors that, in
2 the course of investigating this matter, Fujitsu have
3 advised phantom sales were reported in around 2000,
4 which appeared to be caused by hardware issues.
5 "'There is a master peak in relation to this in
6 2001, and even though Mrs Van Den Bogerd was very
7 closely involved in the issues on Horizon, she had not
8 known about this until some time later, and indeed she
9 could not even remember the approximate year she had
10 become aware of it and did not recall in the witness box
11 having seen the master peak before.'"
12 Mr Justice Fraser said:
13 "I am most surprised Mrs Van Den Bogerd could not
14 remember seeing this peak before she was shown it in
15 cross-examination. It is a very important peak. It is
16 peak number [number is given, dated 17 April 2010].
17 "The reason it is important is as follows: it
18 relates to multiple branches. It concerns phantom
19 transactions, it identifies dissatisfaction from more
20 than one sub-postmaster as to how phantom transactions
21 are being investigated and resolved. Or, more
22 accurately, how they are not being. It shows calls
23 being closed, ie brought to an end, without the
24 permission of a sub-postmaster, even though that should
25 not be done. It also shows at least one sub-postmaster
1 threatening not to comply with their contractual
2 obligations due to lack of confidence in the system and
3 also threats of legal action.
4 "Further, in one branch, where items have been the
5 subject of phantom transactions according to the
6 sub-postmaster, Romec, the Royal Mail's own engineers,
7 attended that branch to fit suppressors and other
8 equipment in an effort to rectify this.
9 "The peak plainly records the involvement of Romec,
10 the Royal Mail's own engineering personal as follows:
11 "'Romec had been to site and state they have
12 actually seen the phantom transactions, so it is not
13 just the PM's [that's postmaster's] word now. The
14 significance of this entry is obvious and notable.
15 Mrs Van Den Bogerd agreed this was independent site
16 visit corroboration of the problem by Royal Mail's own
17 engineers at the branch. She also agreed that this was
18 clearly not user error anymore.'.
19 "I do not understand how the master peak containing
20 such information could not have been at the forefront of
21 Mrs Van Den Bogerd's mind. It is, in my judgment,
22 important corroboration from those with experience of
23 Horizon, Royal Mail's own engineers, who stated that
24 they had actually seen the phantom transactions."
25 That is in 2001.
1 LORD JUSTICE HOLROYDE: Presumably the phantom sales had the
2 effect, at the end of the day, of (Inaudible). It is
3 (Inaudible) had been made and there is no money in the
4 till for the appropriate amount.
5 MR MOLONEY: I think I might be straying into technical
6 areas where I am not particularly competent, but I think
7 it may be as well, my Lord, that in fact the phenomena
8 nature of the transaction can work in both directions.
9 I think we see that in the payment and receipt mismatch
10 book later on, that I will come to.
11 But, certainly as far as one possibility of that
12 transaction is that it would show things to be shorter,
13 and that certainly what we see during the course of
14 a number of these cases which are before the court
16 But Fujitsu discounted any problem independent of
17 user error. Mr Justice Fraser continues:
18 "However the conclusion reached by Fujitsu and
19 recorded in the peak was as follows:
20 "'Phantom transactions have not been proven in
21 circumstances which preclude user error. In all cases
22 where these have occurred, a user error related cause
23 can be attributed to the phenomena. The peak also
24 includes no fault in product.'"
25 Mr Justice Fraser, we say with the greatest respect,
1 was rightly withering in his criticism of that
2 conclusion. He found:
3 "This conclusion by Fujitsu is not only not made out
4 on the factual evidence, including the contemporaneous
5 entries in the peak itself, but it is in my judgment
6 simply and entirely unsupportable. It wholly ignores
7 the independent support of the Romec engineers who
8 reported that they have actually seen the phantom
9 transactions, and it arrives at a conclusion that in my
10 judgment entirely contradicts the evidence available to
11 Fujitsu at the time and indeed contradicts common sense.
12 "Given the entry, that it is not just the PM's word
13 now, this conclusion ignores two entirely different
14 sources of actual evidence, (1) what the SPM reported
15 and (2) what the Romec engineers and employees of Royal
16 Mail visiting the branch actually saw."
17 MR JUSTICE PICKEN: I think BA might be Benefits Agency.
18 I get that from page 721.
19 MR MOLONEY: Thank you, my Lord.
20 We say that given this peak occurred only a matter
21 of months after implementation of Legacy Horizon, in
22 a context where Legacy Horizon had been delayed because
23 of concerns about its unreliability. Given that
24 sub-postmasters were reporting phantom transactions, and
25 given that Royal Mail's own engineers corroborated those
1 phantom transactions after making site visits, we say
2 that the conclusion of Fujitsu is extraordinary and it
3 is also extraordinary that it appears to have been
4 accepted by the respondent without more, and that no
5 independent investigation of the reliability of Horizon
6 was undertaken.
7 We say it is supportive of a conclusion that there
8 was a wilful failure on the part of the respondent to
9 admit the failings of Horizon, to face up to the fact
10 that it had commissioned this software programme and it
11 was not fit for purpose.
12 From then, of course, my Lords and my Lady know that
13 problems mounted for Horizon and more concerns as to its
14 reliability were raised, and we see those all the way
15 through the disclosed summaries, from pages 722 on, of
16 bundle C. The lives of sub-postmasters were irreparably
17 ruined. Some took their own lives, but still the
18 respondent did not commission an external, independent
19 investigation into the reliability of Horizon.
20 Instead, as part of its internal review of
21 challenges to Horizon, in August 2010, the respondent
22 discussed in the ISME report its ultimate refusal to
23 order an independent review of the system's integrity.
24 MR JUSTICE PICKEN: Mr Moloney, can I ask you, do you place
25 any reliance in the context of paragraph 43(?) on the
1 scale the apparent problems with such postmasters and
2 mistresses? Do we know what proportion were being
3 (Inaudible), it was suggested that (Inaudible) bad
5 MR MOLONEY: In terms of proportion --
6 MR JUSTICE PICKEN: Was it out of proportion to
7 pre-Horizon --
8 MR MOLONEY: Yes, there were maybe two or three prosecutions
9 pre-Horizon, and it went up to between 40 or 50 once
10 Horizon came in.
11 MR JUSTICE PICKEN: That is the question I am getting at.
12 Do you place reliance on that in and of itself in any
13 shape or form?
14 MR MOLONEY: It is a point we make during the course of this
15 speaking note, my Lord, that essentially the
16 Post Office, in the face of all the evidence, was
17 prepared to accept that sub-postmasters of previous good
18 character, who had hitherto run decent, responsible,
19 profitable businesses became criminals overnight. Alarm
20 bells should have rung.
21 LORD JUSTICE HOLROYDE: Speaking for myself, Mr Moloney,
22 I think the point you are making goes a little bit
23 further than that, because the sub-postmasters and
24 sub-postmistresses are not simply people of good
25 character, but they are people whom POL has itself
1 chosen to appoint in that position, so we lock our doors
2 when we go out, (Inaudible) vaguely somebody dishonest
3 out there, and if we run a shop, we take precautions
4 against shoplifting because we recognise that there may
5 be somebody dishonest coming in. But it is perhaps
6 unusual for an organisation to say: the very people we
7 have selected and put in a position of trust have
8 suddenly lost that trust en masse.
9 MR MOLONEY: Indeed, my Lord.
10 LORD JUSTICE HOLROYDE: Thank you.
11 MR MOLONEY: Thank you.
12 But, of course, far from seeing that it was
13 necessary to commission an independent investigation,
14 they discussed the pros and cons, as it were, of such
15 an independent investigation. Not something that they
16 didn't give thought to, but we set out at paragraph 54
17 the quote from the ISME report, which reads:
18 "It is also important to be crystal clear about any
19 independent review if one were commissioned. Any
20 investigation would need to be disclosed in court.
21 Although we would be doing the review to comfort others,
22 any perception that the POL doubts its own systems would
23 mean that all criminal prosecutions would have to be
24 stayed. It would also beg a question of the Court of
25 Appeal over past prosecutions and imprisonments."
1 So, the concerns expressed there were that the
2 review might lead to state prosecutions and the
3 examination of the safety of convictions by this court.
4 It appears that a great many heads of department in
5 POL had sight of that report, including the head of
6 criminal law, Rob Wilson, and the principal lawyer
7 civil. We say the failure of the respondent in all the
8 circumstances to commission such an independent report
9 is shameful and culpable.
10 There was substantial and mounting evidence of the
11 unreliability of Horizon. The respondent was pursuing
12 debt recovery and prosecutions against sub-postmasters
13 who were denying misusing funds and raising concerns
14 that any discrepancies were due to the malfunctioning of
15 Horizon. The lives of sub-postmasters were lost and
16 ruined as a result of the approach of the respondent.
17 Personnel at Post Office Limited were of the view
18 that Fujitsu regarded its contract with the respondent
19 as a cash cow. We see that at paragraph 920 of the
20 Horizons judgment, but yet we say, as it were, Fujitsu
21 was allowed to mark its own homework.
22 We do submit that any institution behaving
23 rationally would have commissioned an independent
24 review. But, of course, the respondent refused to
25 believe what was self-evident, namely that Horizon was
1 faulty. There is the point we make, my Lords, that all
2 of the sub-postmasters who had previously been of good
3 character, they refused to believe that they had not
4 overnight become devious thieves and fraudsters, and
5 they refused to believe that despite having all the
6 necessary evidence before them.
7 The problems continued and the concomitant
8 resistance to investigation continued. In 2013, as is
9 set out from paragraphs 216 of the Horizon issues
10 judgment, an internal Post Office email reported that
11 a sub-postmaster had found sensitive issue with Horizon
12 when the system put a phantom check on the check line in
13 July 2013. Claims to have evidence to support his
14 claim. Although he himself did not suffer a loss,
15 thinks that Horizon is flawed. Did not ask to be
16 contacted about this. Just wanted to say he had this
17 information and threatened to go to his MP as a result."
18 That report led to the question being raised at the
19 Post Office as to whether:
20 "Given the current media, and in particular the
21 BBC's attention on Horizon, do you think it is
22 worthwhile looking into this alleged flaw with Horizon
23 that this sub-postmaster has highlighted? To pre-empt
24 any enquiries from his MP."
25 It was Andrew Wynne of the Post Office who answered
1 that question, and this was the same Andrew Wynne who
2 was present at the receipts and payments mismatch bug
3 meeting, which I will come on to, as an example of
4 an instance of the respondent's failure on disclosure.
5 But, here, in terms of investigation, he said that the
6 claim could not be investigated without further details
7 and Fujitsu involvement. He also said he didn't
8 understand the purpose of the call by the sub-postmaster
10 "My instinct is we have enough on these people
11 asking to us look at things."
12 MR JUSTICE PICKEN: Sorry, the ISME report you rely on the
13 passage you quoted at page 27.
14 MR MOLONEY: Yes, my Lord.
15 MR JUSTICE PICKEN: Looking at page 26, under the heading
16 "Independent review and audit". It says:
17 "POL has actively considered the merits of
18 an independent review. This has been purely from the
19 perspective that we believe Horizon but that a review
20 could help others get the same confidence that we have.
21 Our decision between IT, Legal (Inaudible) and the
22 security in question has continued to be that no matter
23 what opinions we obtain, people will still ask what if
24 and the defence will not ask questions that require
25 answers beyond the roll out."
1 MR MOLONEY: Yes.
2 MR JUSTICE PICKEN: I assume you rely on that, of course --
3 MR MOLONEY: I do, my Lord, and I was going to come to that
4 later on, but, entirely, my Lord, yes. Yes.
5 Underpinning that attitude, my Lord, we say it is
6 clear that they have a belief in Horizon which they
7 refused to be shifted on, despite all the evidence
8 before them and that it must be (Inaudible) of the
10 MR JUSTICE PICKEN: There is also reference there in the
12 MR MOLONEY: Indeed, my Lord, yes.
13 What Mr Justice Fraser said -- and we respectfully
14 say this is an important passage from the Horizon issues
15 judgment, which effectively analyses the approach and
16 motivations of Post Office when considering this type of
17 issue. Because when Mr Wynne said that we have enough
18 on with people asking us to look at things,
19 Mr Justice Fraser was equally withering, as he had been
20 before, that response -- and he found:
21 "In my judgment, the stance taken by the Post Office
22 at the time, in 2013, demonstrates the most dreadful
23 complacency and total lack of interest in investigating
24 these serious issues, bordering on fearfulness of what
25 might be found if they were properly investigated."
1 We say that appears to be a motivation for the Post
2 Office. This SPM, whose branch was known to the Post
3 Office, should obviously have been asked for further
4 details if further details were required for the
5 investigation, and the Post Office or Fujitsu should
6 plainly have investigated the matter as a matter of some
8 By 2013, Horizon was an extraordinarily
9 controversial subject. There can simply be no sensible
10 excuse for the Post Office's failure to try and
11 understand this particular subject. This is
12 particularly reprehensible given that an internal Post
13 Office document, in August 2013, showed that Mr Wynne's
14 involvement in this was because his area of
15 responsibility was as follows:
16 "Also responsible for resolving specific branch
17 accounting issues."
18 It was his specific job to resolve specific branch
19 accounting issues, yet he decided at the time that "we
20 have enough on". I agree with Mrs Van Den Bogerd, this
21 is inadequate; that is putting it at its most favourable
22 for the Post Office, somewhat stronger terms are also
24 Mr Wynne had key responsibility in the structure of
25 Post Office Limited, and we say his dreadful complacency
1 directly reflects the dreadful complacency of the
3 We see, as I said earlier, my Lords and my Lady,
4 that this institutional denial of any problems with the
5 integrity of Horizon, which ensured that there was no
6 independent investigation of Horizon in its various
7 manifestations, continued long after the last of the
8 prosecutions with which this court is concerned.
9 Following a 2015 Panorama, the Post Office sent the
10 following messages to sub-postmasters:
11 "The Post Office wholly rejects the extremely
12 serious allegations repeated in the BBC's Panorama
13 programme of 17 August 2015. The allegations are based
14 on partial, selective and misleading information. The
15 Post Office does not prosecute people for making
16 innocent mistakes and never has. There is no evidence
17 that faults with the computer system caused money to go
18 missing at these Post Office branches. There is
19 evidence that user actions, including dishonest conduct,
20 were responsible for missing money."
21 There quite plainly was evidence with those faults
22 with the computer system. The respondent's
23 institutional attitude of denial manifested itself in
24 the conduct of prosecutions. We set out, just very
25 briefly, a couple of examples of the way in which there
1 was resistance to investigations. I know others have
2 identified other examples in written skeleton arguments
3 before the court, and I will not spend too much time on
4 that, but we see at (i) of paragraph 68 the suggestion
5 that securing data which might be relevant to the
6 defendant's position was expensive and a complete waste
7 of time and money. We say that is symptomatic of the
8 attitude which was seen in response to requests. Then
9 the refusal of the provision of ARQ data at (ii).
10 If I can now move on, my Lords and my Lady, to the
11 failure to disclose what was known about the
12 inadequacies of the Horizon system. Just as with their
13 investigative duties, the respondent failed in its
14 disclosure duties, we say.
15 We say they are exemplified, those failings, by what
16 emerged during the GLO about the receipts and payments
17 mismatch book.
18 It was a book that resulted in a branch having
19 an apparent balance when this is to essentially return
20 to the point, my Lord, Lord Justice Holroyde, made about
21 it showing a lack of cash because what this book could
22 do is show a balance when in fact there had been a loss
23 or a gain. So, it is either a loss or a gain.
24 A meeting was convened to discuss that book and
25 Mr Justice Fraser set out the material parts of the memo
1 of that meeting at paragraph 428 of his Horizon issues
2 judgment. Part of that memo reads, and we have set it
4 "The impact of this is the branch has appeared to
5 have balanced where in fact it could have a loss or
6 a gain. Our accounting systems could be out of sync
7 with what is reported at the branch, but most
8 importantly, in 2010, if widely known could cause a loss
9 of confidence in the Horizon system by branches and
10 potential impact upon ongoing legal cases where branches
11 are disputing the integrity of Horizon data. It could
12 provide branches ammunition to blame Horizon for future
14 The implications of that document are extremely
15 serious and we say that there is a fearful attitude
16 there, my Lords and my Lady, which is reflective of that
17 fearfulness identified by Mr Justice Fraser in the
18 passage I read out to you earlier.
19 It is a fearful attitude which underlays that
20 resistance to invest in independent investigation found
21 in the ISME report.
22 The implications are extremely serious because the
23 Post Office was a public body that had assumed the role
24 of prosecutor in respect of the alleged offences
25 committed by sub-postmasters.
1 MR JUSTICE PICKEN: I think Mr Justice Fraser described it
2 as a "most disturbing" document.
3 MR MOLONEY: He did, my Lord.
4 As an institution, it was aware of the potential for
5 Legacy Horizon to malfunction even prior to its roll out
6 in 2000 existed, and hence the delay in roll out. It
7 was aware of the problems of the roll out in respect of
8 Horizon online as well.
9 If I could just take my Lords and my Lady back to
10 paragraph 10 of our speaking note now to see what
11 Mr Justice Fraser said about the problems with Horizon
12 online. This is at page 3 of our speaking note,
13 paragraph 10, and it is the third line of that paragraph
14 in which we quote from his judgment:
15 "Horizon online also did not have a happy birth.
16 The pilot for it had to be stopped and Fujitsu put it on
17 what was called red alert. Mr Godeseth described this
18 as very serious. The biggest issue was with oracle,
19 which was what Mr Godeseth was working on and hence knew
20 the most about, but he explained there were other
21 problems going on at the same time. Some of these
22 problems were put to him, and it must be remembered that
23 this was a pilot scheme with some problems to be
24 expected, and they included cash being short on one day
25 but £1,000 because a transaction for £1,000 did not show
1 up on the online report facility. Cash withdrawals
2 being authorised on screen, yet the printed receipt
3 being declined. The customer very honestly brought the
4 cash back next day having noticed the receipt wording.
5 A similar problem with the cash deposit and remming in
6 figures all being doubled up. These are all somewhat,
7 and indeed markedly, similar to some of the problems
8 alleged by the different claimants' witnesses in this
9 litigation and this all occurred during the pilot
11 So, we see those problems not just with the pilot
12 scheme for Legacy Horizon, but also for Horizon online,
13 and we see problems being caused with the receipts and
14 mismatched payments book.
15 As matters developed, the Post Office was aware that
16 sub-postmasters have been attributing losses to Horizon
17 and that schedule of disposable extracts across tranches
18 1 to 4 demonstrate through records of taped interviews,
19 defence statements, and so on and so on, how these
20 issues were being raised from 2003 all the way through
21 to 2013, when the prosecutions stopped.
22 As matters developed, the Post Office was aware that
23 people were being prosecuted and going to prison, while
24 still protesting that the shortfalls that had been
25 discovered must be attributed to Horizon. Those people
1 were sent to prison despite that.
2 This institution, we say, that had assumed the
3 mantle of prosecutor, should have been fulfilling its
4 prosecutorial responsibility and ensuring that adequate
5 mechanisms were in place to identify and disclose any
6 information that might undermine the prosecution case
7 that Horizon was reliable. It should identify any
8 material reasonably assisting the defence case that the
9 sub-postmaster had taken no money and that shortfall
10 may -- because that is all that is necessary, my Lords
11 and my Lady will be aware, within the context of the
12 burden and standard of proof in a criminal trial -- may
13 be due to Horizon.
14 The Post Office employee, Andrew Wynne, mentioned
15 earlier, was at that meeting, as was Gareth Jenkins,
16 a prosecution witness who has been relied on by the
17 respondents at times to attest to the robust and
18 reliable nature of Horizon. The implications of that
19 meeting for Post Office Limited's prosecutorial duties,
20 referred to by Mr Justice Fraser at paragraph 430, and
21 we see that, rather ironically, at 443 of the Horizon
22 issues judgment:
23 "Post Office Limited expressed dissatisfaction with
24 Fujitsu having failed to disclose the receipts and
25 payments mismatch book for some four months, but
1 extraordinarily there were not associated concerns about
2 making sure that this saw the light of day as soon as
4 We say that an institution that assumed the mantle
5 of public prosecution in these cases should not be
6 proceeding on the basis of fear of cases being
7 undermined by material that they were in possession of.
8 Mr Justice Fraser, as my Lord, Mr Justice Picken,
9 observed, described this document as:
10 "A most disturbing context in the context of this
11 group litigation". It is a 2010 document and issues
12 between the Post Office and many sub-postmasters
13 concerning the accuracy of Horizon had, for
14 Legacy Horizon, gone on for a decade, 2000 to 2010.
15 These continued under Horizon online, introduced in
17 Those remarks again, we say, illustrate and
18 reinforce the enduring and unaddressed nature of the
19 abuse of process which underpin these prosecutions.
20 As Mr Justice Fraser continued that, to see
21 a concern expressed that if a software bug in Horizon
22 were to become widely known about, it might have
23 a potential impact upon ongoing legal cases where the
24 integrity of Horizon data was a central issue, is a very
25 concerning entry to read and in a contemporaneous
2 "Whether these were legal cases concerning civil
3 claims or criminal cases, there are obligations upon
4 parties in terms of disclosure. So far as criminal
5 cases are concerned, these concern the liberty of the
6 person and disclosure duties are rightly high. I do not
7 understand the motivation in keeping this type of matter
8 recorded in these documents hidden from view, regardless
9 of the motivation, doing so was wholly wrong. There can
10 be no proper explanation for keeping the existence of
11 a software book in Horizon secret in these
13 We say that there can be no valid excuse for that
14 document not seeing the light of day in the schedule of
15 unused material, in each case prosecuted by the
16 respondents where the defendant sub-postmaster at any
17 stage of the investigation and prosecution raised the
18 reliability of Horizon as a possible reason for the
20 We know it came through to some senior managers, as
21 can be seen at bundle C, page 48, but the respondent had
22 assumed the responsibility of prosecuting
23 sub-postmasters, and instead of the state it was
24 incumbent on it to ensure that adequate mechanisms were
25 in place to ensure fair trials, and if such mechanisms
1 were in place and honestly adhered to that document
2 would have emerged.
3 At paragraph 83, we set out what Fraser J concluded
4 about the calendar square bug:
5 "Fujitsu knew to take calendar square as an example
6 that this bug existed in Horizon. They knew it had
7 affected branch accounts. It was not, as the Post
8 Office put it 'unnecessary and inappropriate to notify
9 SPMs of this'."
10 I have listed the point on this bug at 425. They
11 are both admitted by Mr Godeseth in his written
13 "Those same points all lead to the same conclusion
14 in my judgment, namely that the Post Office ought to
15 have notified, at the very least, all those
16 sub-postmasters whose branch accounts had been impacted
17 by this bug that this had occurred and it had occurred
18 as a result of a software bug.
19 "The fact that the integrity of Horizon was a live
20 issue at this time, should not have influenced the
21 decision to notify sub-postmasters of the software bug."
22 We suggest, with the greatest of respect to
23 Mr Justice Fraser, that he could reasonably have gone
24 further because the fact that the integrity of Horizon
25 data was a live issue at this time should have
1 influenced the decision to notify sub-postmasters of
2 a software bug. It would have influenced the decision
3 of any responsible prosecutor in this area, because that
4 is to say, in circumstances where Horizon was a live
5 issue, it became all the more imperative that this
6 disclosure was made by this prosecuting body.
7 MR JUSTICE PICKEN: Reference at C/48, the criminal law
9 MR MOLONEY: Yes.
10 MR JUSTICE PICKEN: I note in the email of 8 October 2010
11 from Mr Simpson, (Inaudible) he states:
12 "The above (Inaudible) initial analysis of
13 (Inaudible). My concern is around the proposed solution
14 (Inaudible) repercussions in future prosecuted cases and
15 on the integrity of Horizon on our system."
16 MR MOLONEY: Absolutely, my Lord, and that is one of the
17 passages that we refer to in our disclosure failings,
18 specific -- yes, indeed.
19 What we see, there my Lord, if I may, is a good
20 example of the unitary nature of the business because we
21 see, at the higher level, the discussion of the receipts
22 and payments mismatch book, and at the higher level,
23 which involved all the heads of department, the concern
24 about how this might affect prosecutions, how it might
25 affect branches, how it might affect civil actions.
1 We then see it move down and the same concerns
2 reflected in within the criminal prosecutions
3 department, as evidenced by the contents of the email
4 that my Lord has just alighted.
5 MR JUSTICE PICKEN: Yes.
6 MR MOLONEY: Then we see Mr Justice Fraser dealt with other
7 bugs and had similar criticism. We say that resistance
8 to disclosure and the failure to disclose was systemic
9 and consistent for the reasons I have just outlined. It
10 applied to all aspects of the operation of Post Office
11 business, and was not confined to the employees and
12 agents that were tasked with the prosecution of
14 I am conscious of the time that I am taking, but we
15 have set out in the speaking note specific examples of
16 failings in disclosure, which we say are important to
17 considering the role of the Post Office in prosecuting
18 these cases. They are set out in paragraph 91, from A
19 through to G.
20 Essentially, just to outline them in very short
21 form, there was a reluctance to disclose, and indeed
22 a failure to disclose, reports that were relevant to
23 other cases, even though they affected the case in hand.
24 But, really importantly, my Lord, perhaps, an extreme
25 example of the approach to disclosure is set out at B,
1 when there was a schedule of sensitive material created
2 by an employee of the prosecution department for the
3 purposes of withholding one item, which was namely
4 a letter from a sub-postmaster raising concerns about
5 Horizon. The rationale for including this letter on
6 a sensitive schedule was that the letter could be used
7 as mitigation, ie to blame Horizon for loss.
8 We say there could be no clearer misuse of the power
9 to allocate an item to a sensitive schedule and thus
10 obscure it, in effect, from scrutiny by the court, as
11 well as the defendant. No clearer manifestation of the
12 apparently systemic resistance to any suggestion that
13 the malfunction of Horizon might be relevant to the
14 issues in the case.
15 Paragraph (c), my Lord, Mr Justice Picken, has
16 already mentioned. It is Rob Wilson told by
17 Alan Simpson about the payments and mismatch. We see,
18 of course, that was copied into that and it was
19 forwarded to Mr Jamail Singh, who was very prominent
20 within the prosecutions of the sub-postmasters all the
21 way through the prosecutions, it seems.
22 We see other matters going through from E, which is
23 about disclosure of an item to a defendant. It is
24 Jacqueline McDonald, that they were not going to tell
25 the defendants about an expert's report they had in one
1 case; they can find that out for themselves. Advice
2 from Martin Smith of Cartwright King to Jamail Singh
3 that he would instruct to tell the Crown Court that
4 Horizon works perfectly. That email was sent long after
5 Jamail Singh was aware of the problems with the receipts
6 and mismatch book.
7 Then a section 8 application served on the
8 Cartwright King, where a schedule was not disclosed in
9 response to that section 8 application because it
10 contained personal opinion.
11 We say that those failures are rendered all the more
12 egregious, as was noted by Mr Justice Fraser, by the
13 inability of the defendants to make their own
14 investigations, their own investigations of the reasons
15 for apparent discrepancies. Mr Justice Fraser dealt
16 with it at paragraph 1000 of the Horizon issue judgment,
17 essentially saying because the reports and data
18 available to SPMs was so limited, their ability to
19 investigate was itself similarly limited:
20 "The expert agreement, to which I refer at paragraph
21 998 above, makes it clear in IT terms that SPM simply
22 could not identify apparent or alleged discrepancies and
23 shortfalls, their causes nor actions, nor properly
24 identify transactions recorded on Horizon themselves.
25 They required the cooperation of the Post Office."
1 So, defendants who were forced to resist serious
2 allegations against them were unable to make their own
3 enquiries about Horizon and were reliant for disclosure
4 on a business that was the complainant as well as the
5 investigator, as well as the prosecutor, which
6 demonstrated an enduring institutional resistance to
7 disclosure in all aspects of its business.
8 Put simply, the business was resistant to disclosure
9 of anything which undermined the reliability of Horizon
10 and, accordingly, no such disclosure was forthcoming.
11 That was even though a wealth of material that should
12 have been disclosed was available to the business. As
13 Mr Justice Fraser observed, at paragraph 946 of his
15 "A theme contained within some of the internal
16 documents is an extreme sensitivity seeming to verge on
17 occasion to institutional paranoia concerning any
18 information that may throw doubt on the reputation of
19 Horizon or expose it to further scrutiny.
20 "One entry in a document which makes it clear that
21 the Post Office itself had already recognised this is
22 contained in the document authored by Mr Justice Van Den
23 Bogerd, entitled "Extracts from lessons learned log",
24 and dated 11 November 2015. One entry, under "Issues
25 identified", was as follows, in respect of the
1 Post Office's behaviour up to that date:
2 "'Failure to be open and honest when issues arise,
3 eg roll out of Horizon. Horizon online, migration
4 issues and issues affecting few branches not seemingly
6 "We say the specific failures identified in
7 paragraph 91, that I just mentioned, cannot be viewed in
8 isolation from each other, nor from the prevailing
9 attitude from the Post Office institution. They could
10 reflect and are entirely consistent with the attitude to
11 disclosure in relation to Horizon which pervaded all
12 aspects of the operation of the business."
13 We say this, perhaps importantly: what that meant
14 was that attitude of the Post Office institution to
15 Horizon meant that in cases where the reliability of
16 Horizon was in issue, the prosecution could never be
18 MRS JUSTICE FARBEY: Do you say that because when one looks
19 at your submission, and indeed the submissions of
20 Ms Busch, and when one looks at that failure to
21 disclose, the failure to investigate, and under which
22 (Inaudible), it is not a matter of us saying, well, in
23 case A, it's bug A; in case B, it was bug B. Perhaps
24 (Inaudible) didn't know about that, and, in case C, not
25 at all (Inaudible). It is attitudinal.
1 MR MOLONEY: Yes.
2 MRS JUSTICE FARBEY: Therefore, on any account, in any cases
3 in the relevant time period, there is a risk of
4 a miscarriage of justice and that is diametrically
5 opposed to a fair prosecution and therefore it would be
6 (Inaudible); is that it?
7 MR MOLONEY: My Lady, yes, that is the essential thrust of
8 it, my Lady, yes, absolutely.
9 Perhaps as a further illustration of that, my Lady,
10 if we may, our (iv) is that there were conditions
11 imposed on plea deals which were, we say, essentially
12 with the objective of -- or certainly they achieved this
13 anyway, whether it was a conscious intention or -- it
14 would surely be because there are so many instances of
15 it, but the plea deals secured the institutional
16 objective of convicting sub-postmasters and acquitting
17 Horizon in effect. We give examples that, on
18 25 February 2013, the respondent stated it would only
19 accept a guilty plea from the defendants in defence of
20 false accounting if the defendant confirmed in writing
21 that "there is no criticism made towards the functioning
22 and reliability of the Horizon system."
23 That condition of the plea is a common thread within
24 the generic disclosure, and it is a feature in fact of
25 the four cases where the Post Office has conceded on
1 both ground 1 and ground 2. But it occurs in many of
2 the cases that are before this court; that there has to
3 be an acceptance that Horizon was not to blame for the
4 apparent shortfalls. Thus we say that not only did the
5 respondent fail in its investigative duties, both in
6 general terms and in prosecutions; not only did it fail
7 in terms of its disclosure duties, both in general and
8 in the prosecutorial process; the respondent used the
9 leverage of plea negotiations which I would ask my Lords
10 and my Lady to bear in mind took place in the context
11 where the defendant's objective -- in these cases where
12 the respondent has conceded ground 1, the defendant's
13 objective was to remain at liberty when the proceedings
14 concluded. We see that as a common feature of these
16 So, that imperative, that institutional imperative
17 of acquitting Horizon and convicting the
18 sub-postmasters, what took place in that context, it was
19 in order to protect Horizon and protect their own
20 commercial reputation.
21 MR JUSTICE PICKEN: That reference at 98 is to the ISME
23 MR MOLONEY: My Lord, yes.
24 MR JUSTICE PICKEN: The sentence after that goes on to say:
25 "However, it does not stop the speculation about the
1 system. It is not possible (Inaudible) saying what if."
2 MR MOLONEY: Exactly.
3 MR JUSTICE PICKEN: "(Inaudible quoting)."
4 MR MOLONEY: Indeed, my Lord, yes. Thank you.
5 But we also say this approach enabled it to be
6 said -- going back to where we started in many
7 respects -- to the board meeting of 12 January 2012,
8 that the business has also won every criminal
9 prosecution in which it has used evidence based on the
10 Horizon system's integrity.
11 Those plea deals secured that institutional
13 Again, that institutional objective meant that the
14 prosecutions of sub-postmasters could never be impartial
15 if the reliability of Horizon was in issue.
16 Accordingly, the Post Office should never have been
17 prosecuting these cases, and it is an affront to justice
18 that they were doing so.
19 Then, finally, our (v), where we set out what we say
20 are collateral motives for prosecutions. They are not
21 as important as the previous factors that we have
22 identified, but perhaps the institutional objective of
23 securing what were perceived to be losses through the
24 confiscation process, and asset recovery process, is one
25 example that does link into that which has gone before.
1 There were other examples where a sub-postmaster was
2 prosecuted despite evidence that had been assessed as
3 lacking in merit, and there was an express intention to
4 add charges of theft to an indictment alleging false
5 accounting if those charged with false accounting did
6 not plead guilty. We have passed up to the court this
7 morning that one example, which says, "If any seeks
8 a trial, then I will add charges of theft", it was
9 provided to the court this morning.
10 We turn, if we may, to almost the conclusion, just
11 to deal with the law. I know that my Lords and my Lady
12 will be familiar with it, but we set out the law and
13 then seek to apply it to the facts before the court.
14 There is a theme which emerges in discussing the
15 ground 2. There are various bases of the ground 2
16 abuse, there are various different definitions that set
17 out between paragraphs 103 and 106. Those which are
18 contained in Maxwell, in Warren, in Latif, in Mullen.
19 But, plainly, the themes that do emerge is that ground 2
20 abuse would offend the court's sense of justice and
21 propriety and, in Mullen, finally, it could lead to the
22 degradation of the law for administration of justice.
23 There is a balancing of interests to be conducted in
24 deciding whether a stay is required in respect of
25 ground 2, which there isn't in relation to ground 1, and
1 the various factors in this case where the court has
2 enormous discretion in determining whether or not there
3 has been a ground 2 abuse.
4 Various factors are potentially extensive, and here
5 we list them, at paragraphs 111 on, and seek to say why
6 it is that the court should decide that ground 2 abuse
7 is made out. But, at paragraph 111(i), it is of
8 particular significance that the respondent's conduct
9 has been explored in judgments following extensive
10 litigation. There is no need to assess the veracity of
11 the appellant's assertions in this case. The court can
12 confine itself to the findings of fact and the bases of
13 the concessions made in relation to ground 1.
14 As far as the offences are concerned, they were
15 offences of theft and false accounting, said to have
16 been committed by people of positive good character. It
17 cannot be said this was the grave offending identified
18 by Lord Kerr in Warren, for example. Grave offending,
19 it cannot be argued this criminality involved in these
20 cases was sufficiently serious to weigh against a stay
21 on the basis of ground 2.
22 In each case, before the court, the convictions are
23 accepted to be unsafe by reason of material
24 non-disclosure, but these aren't simple cases of
25 non-disclosure; there is a systemic underlay to this
1 which matters.
2 The enduring nature of the conduct, at (v), is
3 something that the court should take into account. It
4 is a powerful factor. It is not an isolated incident.
5 Therefore it doesn't represent a single instance of
6 finely balanced law enforcement.
7 But, moreover, at (vi), the respondent has thus far
8 failed to point to any feature in the case which
9 adequately mitigates the conduct of the respondents in
10 prosecution the appellants while simultaneously failing
11 to investigate relevant lines of enquiry and make
12 crucial disclosure which would have protected the
13 appellants from conviction and imprisonment. There was
14 no urgency to these cases which might mitigate the
15 nature or gravity of the non-disclosure and, in
16 assessing the balance between the public interest in
17 prosecuting those accused of serious crime and the
18 public interest of ensuring the prosecutorial misconduct
19 doesn't undermine public confidence in the criminal
20 justice system, we say that the facts weigh firmly in
21 favour of the latter, and especially when this is
22 a private prosecutor, rather than a public prosecutor.
23 In these cases, we say whilst a fact specific
24 analysis of each case would be necessary to secure
25 a full appreciation of the true extent of ground 2 abuse
1 in each of the cases, it is not necessary to examine the
2 facts of each case, given the circumstances of these
3 cases, given the enduring nature of what has gone on,
4 and the systemic nature of what has gone on, in order to
5 establish that ground 2 abuse is made out in respect of
6 all the cases.
7 The private prosecutions of all these appellants
8 constitutes an affront to justice and so, to conclude,
9 we say that the respondent has conceded that each of
10 these appellants was the victim of an abuse of process
11 when they were prosecuted. They could not and did not
12 have a fair trial because of the inadequate
13 investigation and/or lack of full and accurate
14 disclosure and/or non-disclosure. But the respondent
15 has given no explanation of why it is that the warning
16 signs of the potential unreliability of Horizon, which
17 became apparent during testing and roll out, had little
18 or no impact on their attitude to Horizon after
19 (Inaudible); why they were justified in adopting the
20 default position that SPMs were responsible for losses,
21 unless they could prove that Horizon was responsible; no
22 explanation of why it was that they ignored the widely
23 expressed concerns of sub-postmasters, people of good
24 character, who had previously unblemished records as
25 sub-postmasters; why it was that they didn't commission
1 an independent investigation of the reliability for
2 Horizon, and why it was that there were such fundamental
3 failings in disclosure.
4 The reality is, we respectfully submit, that the
5 Post Office Limited institution, the business, could not
6 act impartially in criminal proceedings when the
7 reliability of Horizon was in issue. They should not
8 have assumed and retained the responsibilities of the
9 prosecution of such cases. A number of lives have been
10 ruined as a result. The respondent's behaviour, as
11 an institution, does, we say, constitute an affront to
12 the justice system of England and Wales that the court
13 should find did constitute an affront to the justice
14 system of England and Wales.
15 LORD JUSTICE HOLROYDE: Thank you, Mr Moloney.
16 MR MOLONEY: My Lady, yes.
17 MRS JUSTICE FARBEY: Paragraph 114.
18 MR MOLONEY: Sorry, my Lady, which paragraph?
19 MRS JUSTICE FARBEY: 114, in (Inaudible).
20 (Inaudible) Mr Johnston.
21 MR JUSTICE PICKEN: Paragraph 114.
22 MRS JUSTICE FARBEY: Paragraph 114, in the citation of
23 Professor Smith, this says:
24 "Guilty or not guilty, their rights to have
25 (Inaudible) had been impaired."
1 Some of these defendants pleaded guilty. How do we
2 look at what Professor Smith said (Inaudible) in this
3 case? Is it a fact that goes to the balance, is it a
4 but for test, or a but for a failure to disclose
5 (Inaudible), or is it a matter which we should take into
6 account in exercising our judgment and discretion?
7 MR MOLONEY: We would argue for the former, my Lady, but it
8 is certainly the latter. It is a factor -- one should
9 not take it into account against the appellants. We say
10 that the nature of the concession by the respondents is
11 that these -- in limb 1, these prosecutions constituted
12 an abuse of the process because of, essentially,
13 failings in the investigation, failings in disclosure.
14 In those circumstances the appellants' pleas were hardly
15 unsurprising, particularly when they could not carry out
16 their own investigations, as was noted by
17 Mr Justice Fraser.
18 So, we say that there is a "but for" element to
19 this, which is that, but for the failings which amounted
20 to an abuse of process on ground 1, these appellants
21 would not perhaps find themselves before this court. It
22 is not necessary for us to show that, we say, but the
23 facts of the guilty pleas and the specific circumstances
24 of these cases where in effect the defendants had no
25 choice, and one sees that throughout a number of these
1 cases, then the facts of their guilty pleas should not
2 be held against them.
3 MR JUSTICE PICKEN: I think it is instructed that the court
4 in economy(?) goes on at paragraph 127 to refer to:
5 "The reasons (Inaudible) scope of finding
6 unequivocal intention (Inaudible) can lead to an unsafe
7 conviction ... However undue pressure or errors of law
8 or unfairness in the trial process may well be of such
9 an important (Inaudible) impact on the decision to plead
10 guilty that the conviction which follows on from such
11 a plea can in an appropriate case be described as
13 I think you would probably say that is the decision
15 MR MOLONEY: My Lord, yes, and that sentiment of course is
16 repeated in loosely in Maxwell and so on.
17 LORD JUSTICE HOLROYDE: Thank you very much.
18 Submissions by MR STEIN
19 MR STEIN: My Lord, yes. May I deal with a point that has
20 just been raised? In our submissions on behalf of the
21 five appellants that we represent, I also remind the
22 court that of course referred to in Togher 
23 1 Cr App R 33, the Court of Appeal referred then to the
24 question of failure to disclose material that is
25 relevant to an abuse of process.
1 So, where we are considering the points that relate
2 to a guilty plea, we also have to bear in mind that the
3 failures in disclosure can go, and would go in the hands
4 of any defence counsel or solicitor instructed on behalf
5 of an individual, to the fact that those disclosure
6 points could have been used and prayed in aid of
7 an application to stay.
8 My Lord, as you know, myself and Mr Orrett appear on
9 behalf of five appellants, Mr Darlington, Mr Holmes,
10 deceased, Ms Shaheen, Ms Lock and Mr Fell.
11 In dealing with our submissions today, we address
12 the court in relation to -- obviously supported by my
13 learned friend Mr Moloney's Queen's Counsel's
14 submissions -- limb 1, and also of course limb 2 in
15 relation to abuse of process.
16 We have discrete submissions that will refer to
17 Mr Fell. They are scheduled for this week on Wednesday,
18 so I will not be dealing with Mr Stanley Fell matters
19 individually today.
20 Can we first of all, therefore, thank my learned
21 friend Mr Moloney Queen's Counsel who has borne the
22 brunt of the submissions being made today. The Post
23 Office has turned itself into the nation's most
24 untrustworthy brand. It has done so through its own
25 behaviour and its own fault over many years. We submit
1 that the evidence that we have had before this court and
2 disclosed to us tells us that we will never in fact now
3 know the nature and full extent of the Horizon system
5 We do ask this court though to recall that not only
6 have these very high number of appellants suffered under
7 the Post Office system and the Horizon faults, but have
8 also had so many sub-postmasters up and down the
10 There is a cut-off within the disclosed material
11 which has been applied to the material supplied to this
12 court through the disclosure process. That is because
13 the respondents have argued -- and that argument has
14 been accepted by the court -- that by and large,
15 material should only be disclosed relevant to the
16 disclosure relevant to the prosecution years to 2013.
17 We also know that there is missing material, due to
18 a handover from RMG to the Post Office, the Post Office
19 Limited, and therefore some documents are not available
20 because of that.
21 What this means, collectively, is that this court
22 cannot in fact consider all of the material that takes
23 matters through from the earliest days of the operation
24 of the Horizon system right the way through to the
25 judgments of the High Court.
1 It means, in effect, that there will be, at this
2 court, no full examination of all documents at all
3 times. May we therefore just observe that the
4 Post Office Horizon IT inquiry is of itself limited. It
5 is limited through its own terms of reference to
6 excluding the Post Office Limited's prosecution function
7 or matters of criminal law. That means, sadly, that the
8 Post Office IT inquiry, a non-statutory inquiry, will
9 not be examining the matters that are before this court.
10 Now, sub-postmasters, and indeed the many
11 appellants, are dismayed at the fact that there will not
12 be a rounded examination but our respectful submission,
13 in agreement with my learned friend Mr Moloney, is that
14 there is a wealth of evidence that he has examined in
15 his submissions that there was a general hostility
16 towards sub-postmasters, the people who are, for the
17 rest of us, at the heart of the community, and that
18 manifested itself in the failures to act, the failures
19 to put in place procedures and provide and preserve
20 material which would assist sub-postmasters and those
21 who the Post Office decided to prosecute.
22 It is an important factor to note that
23 Mr Justice Fraser did not have all of the material that
24 this court has. He had six sub-postmasters before him
25 upon which he could make his judgments and also, clearly
1 and obviously, the use of the material that had been
2 disclosed in the civil hearings. The reason why that is
3 important is that Mr Justice Fraser's comments and his
4 rulings therefore were drawn from a lesser subset of
5 material than this court has.
6 Can we deal with some relative speed with some
7 quotes from Mr Justice Fraser from judgment number 3.
8 My Lord, I noted earlier that you have stated that the
9 court is familiar with the judgments. I will refer
10 therefore to the paragraphs and, unless you wish me to,
11 I will not take you to the bundles themselves.
12 LORD JUSTICE HOLROYDE: It depends on what weight it is
13 being asked to be given to them. I am not sure that the
14 paragraph references are necessarily going to be
15 (Inaudible) in your submissions.
16 MR STEIN: In that case then, can I take you first of all to
17 bundle A, page 95, judgment number 3, paragraph 8.
18 I refer to the relevant parts.
19 "The different claimants all had different
20 experiences with Horizon over different periods of time.
21 However, there is at least one common theme. At the
22 time these accounting shortfalls that came to the notice
23 of the Post Office were pursued as exactly that,
24 shortfalls, with relevant claimants, the Post Office's
25 stance both then and now was and is that the claimants
1 were responsible for these shortfalls and that the
2 shortfalls represented actual amounts of money missing
3 from the claimant's accounting. An alternative way of
4 putting what may amount to the same point, but using the
5 approach of the pleadings, is that the Post Office
6 maintains it is for individual sub-postmasters to prove
7 that the shortfalls were not their individual
8 responsibility. Failing proof of that by an individual
9 sub-postmaster, then the shortfalls were their
10 individual responsibility and the sub-postmaster in
11 question would have to pay the relevant sum to the
12 Post Office and face the consequences."
13 Judgment number 3, paragraph 222, bundle A, 169:
14 "There can be no excuse in my judgment for an entity
15 such as the Post Office to misstate in such clearly
16 expressed terms, in letters that threaten legal action,
17 the extent of the contractual obligation upon a SPM for
18 losses. The only reason for doing so in my judgment
19 must have been to lead the recipients to believe that
20 they had absolutely no option but to pay the sums
21 demanded. It is oppressive behaviour."
22 Judgment number 3, paragraph 564, bundle A, 264,
23 and, my Lady, this may assist in the point that was made
24 earlier regarding the pincer movement effect:
25 "These problems led to what Mr Green described as
1 a debt trap. The sequence would go as follows: the
2 Horizon system would show that there was a discrepancy
3 at the branch, which, so far as the SPM was concerned,
4 would have arisen through unexplained shortfalls and
5 discrepancies. These were challenged through the
6 helpline. That SPM disputed that the sums were due
7 because of the way that the Post Office approached such
8 disputed matters. These were treated as due and owing
9 by the SPM to the Post Office in any event; in other
10 words as non-disputed debts. The most that a SPM could
11 expect from the Post Office was time to pay off the
12 amount over 12 months, deducted from their future
13 remuneration. The only alternative the SPM would have
14 would be giving notice themselves, which would bring
15 an end to their appointment as an SPM and they would in
16 any event, so far as the Post Office was concerned,
17 still owe the disputed sum."
18 These points set out by Mr Justice Fraser describe
19 the overall working of the system and in a moment I will
20 go to the material that we have disclosed in the generic
21 reviews where you will see those points echoed by
22 individuals that are prosecuted, because it is the
23 effect of the overall system upon individuals that were
24 then suspected and then prosecuted that we suggest is of
25 assistance to this court.
1 One individual(?) point is the question of whether
2 there was assistance that could be provided
3 independently; same judgment, number 3, paragraph 591,
4 bundle A, 279. This is a reference to the National
5 Federation of sub-postmasters and the evidence given by
6 Mr Beale(?) during the High Court action:
7 "Mr Beale accepted that supporting the litigation
8 could affect the reputation of the Post Office. It is
9 therefore the case that, were the NFSP [National
10 Federation of sub-postmasters] to decide to support the
11 litigation, which undoubtedly risks damaging the
12 Post Office's reputation if the claimants were to win,
13 the NFSP would not only put itself in breach of the
14 terms of the GFA [the Grant Framework Agreement] but
15 face having grants clawed back, that is repaid by the
16 NFSP by the Post Office."
17 The potential therefore of a union providing
18 assistance had been fettered by the Post Office. What
19 we have, in echo of the comments made by
20 Mr Justice Fraser, are consistent complaints about the
21 same type of issues.
22 Can we go to bundle C, the generic disclosure
23 reviews. Bundle C, part 2. Forgive me.
24 My Lord, at 722, the generic disclosure reviews,
25 schedule of extracts of disclosable material, referring
1 first of all to tranche 2, we will see as we go through
2 some, but certainly not all, of these entries that the
3 findings of Mr Justice Fraser regarding the effect of
4 the system, as my learned friend Mr Moloney put it, the
5 business, is profound upon the individuals I have spoken
6 to. For certainty, to make sure we are referring to the
7 same, it is bundle C, part 2, page 722 onwards.
8 The dates are important. As, as we go through the
9 particular entries that I will be referring to, the
10 dates in terms of the years take us through the time of
11 the operation from early days through to later on
12 through the years. So the first entry -- and, my Lord,
13 you will see the references to the CCRC document and the
14 extracts disclosed -- is in 2003:
15 "We have been running a few small discrepancies of
16 balance and I haven't been knowing where they have been
17 going, where they have gone or where they have come
18 from. I have been getting error notices left right and
19 centre which have confused me because I thought that
20 I was doing everything correctly."
21 The effect of these issues are then mentioned at the
22 bottom of the same page, 722:
23 "What are you trying to say there?"
24 "That there is 7,800 missing and it is not all made
25 up of discrepancies. I have actually lost some money.
1 This is why over the last few weeks I have been
2 absolutely out of my mind. I haven't been eating,
3 I haven't been sleeping because of ..."
4 Page 723, reference to the left-hand side column,
5 the last three figures, hopefully which should suffice,
6 the second entry on that page, 848, and the date is now
7 2004. This is a memo from Julia McFarlane, case front
8 memo, regarding a particular case:
9 "In my opinion the evidence is sufficient to support
10 a realistic prospect of conviction of the above named on
11 the charges set out on the attached schedule. I have
12 charged the theft as one matter as it cannot be said
13 with certainty when the defendant reintroduced orders
14 and stole the money."
15 The difficulty, it seems accepted, is there is
16 a problem which the prosecution have in fact in proving
17 particular items.
18 Page 725, second to last paragraph, reference
19 in March of 2005:
20 "You said to me obviously though it is going to be
21 around £12,300 short. Can you at this stage -- do you
22 want to talk about why that situation has arisen?"
24 "Yes, either people or persons or other people
25 unknown have either been stealing money from the till or
1 the Post Office. My balances were never that bad and
2 then started quite suddenly to go £200, £300, £400 down
3 and we couldn't understand why. It could have been
4 incompetency of myself or/and staff or it could have
5 been just theft."
6 Page 726, May of 2005, the main entry, I will only
7 read part -- the first paragraph of that page:
8 "When it came to the balance, it was wrong. I just
9 couldn't believe what had happened to it. I have
10 cleared the whole office out, tried to find if there
11 were cheques missing. You know, worrying there might be
12 something that had gone astray. I was just hoping that
13 some error notice would come back and show the loss,
14 because I have never had a loss like that in my whole
15 life. I have been with the Post Office for 17 years and
16 so many audit with just a pound each way. I have never
17 had a loss like that. I had a loss about five years
18 ago, I think it was about £3,000. I reported that
19 straight away and it turned out that eight weeks later
20 some cheques turned up that had not been listed
21 evidently. So that is the only time I have come to it."
22 Page 727, the second to last entry, June of 2005:
23 "Because I had done it for the balancing out there,
24 so that I know roughly because I owed more money that
25 I am losing every time we lost money."
1 "Are you saying you had a loss yesterday?"
2 "Yes, not yesterday only, always we had a loss."
3 He explains that every week there is a loss. He
4 doesn't know who is making mistakes, confirms that
5 losses have accumulated over months."
6 My Lord, I will read one more but otherwise can
7 I ask that the court considers the overall impact of
8 these entries.
9 LORD JUSTICE HOLROYDE: Certainly.
10 MR STEIN: Because otherwise they go to page 820 and
11 I suspect that you would not be assisted by my
12 persistent reading of them.
13 Page 728, September 2005, roughly the middle entry,
14 starting with page 4 of 9.
15 "What is the explanation of that money being
17 "The only explanation what I have told everybody
18 every time, that on a weekly basis either the money was
19 short -- I used to put the money in and it kept growing
20 every time. I put money in and it got shorter every
21 week and it built up on a weekly basis. That is the
22 only explanation I've got, because that is how it
23 happened. The only thing I regret now is that I wish
24 I would have told somebody that this is happening, and
25 I don't know why."
1 So we have the overall circumstances as described by
2 Mr Justice Fraser as he found them, that effectively
3 a system had been set up to blame sub-postmasters for
4 losses. We know that in the comments made by
5 Mr Justice Fraser that the helpline was not a helpline
6 in truth, it was a "get the money" line, and that
7 because the blame was on the sub-postmasters to rectify
8 any fault and to pay up, that the individuals left in
9 this trap -- we know through those comments, and as
10 I ask and pray that you will go through the rest of
11 those comments, you will see repeated references to
12 "What could I do?" "I didn't know what was happening,
13 I thought it was somebody working with me." Family
14 members blamed family members, partners blamed each
15 other. They did not know what was happening within
16 these Post Offices and that is a repeated and constant
17 seam seen throughout those years.
18 Those same issues were also brought to the attention
19 of the Post Office by MPs. For your note, bundle C2,
20 page 1096 and -- 1095 and 1096. Letters sent onwards by
21 Mr Binley, Member of Parliament, to the Post Office.
22 A similar letter from Dr Laydim(?) MP bundle C2, page
24 So the issues and themes that existed throughout
25 were themes that were brought to the attention of the
1 Post Office by individuals that they were seeking to
2 prosecute or considering the prosecution of. They are
3 the same themes that were discussed and discovered by
4 Mr Justice Fraser, even though he only had a limited
5 sample of individuals before him, the civil litigants,
6 and these issues were also brought to the attention of
7 the Post Office by Members of Parliament.
8 Those issues amount then cumulatively to ignorance
9 and confusion and a lack of understanding of what is
10 happening on behalf of sub-postmasters. The fear of
11 losing their Post Office contract, the automatic
12 assumption of sub-postmaster fault, a helpline designed
13 to recover money, irrespective of fault, a union
14 contracted to the Post Office and not to the support of
15 the sub-postmasters. No access to material that might
16 help an individual sub-postmaster investigate,
17 a Post Office "don't tell" secrecy policy, a culture
18 which we say infected the entirety, as my learned friend
19 put it, of the business.
20 These failures and the failure of disclosure and the
21 emphasis through their contractual obligations to the
22 Post Office meant that individuals were led to cover up
23 for apparent losses that they could not explain and
24 indeed led to people not only not being able to
25 understand what was going on but not telling, not saying
1 what has happened.
2 Collectively, before this court, a number of us have
3 had years of experience of dealing with applications to
4 exclude evidence and dealing with applications to stay
5 cases. I doubt if any one of us has ever seen an entire
6 system which embodies the victim, the brand and the
7 prosecutor warped against its users and those it
8 prosecuted to such a degree.
9 I now turn to the Simon Clark advices and the
10 assistance they may provide to this court in analysing
11 what has happened.
12 My Lord, I note the time. It is coming up to 1.50.
13 If I may stop at 1.00, unless you wish me to complete
14 this particular section, I imagine I will be 20 minutes
15 in all.
16 LORD JUSTICE HOLROYDE: Well, see how we get on, Mr Stein.
17 We need to make good use of the time.
18 MR STEIN: By 2013, as stated by Mr Justice Fraser, the
19 press had been reporting on Horizon bugs, flaws and
20 questions, questions were being asked by MPs since 2009
21 and the Post Office was firmly aware that they were
22 going to be exposed.
23 I have mentioned before, it is key to the
24 understanding of this court that Mr Justice Fraser did
25 not have the wealth of material that this court now has.
1 He didn't, as an example, have the CCRC analysis, and
2 the numerous appeals. In that sense, we submit that the
3 rulings of Mr Justice Fraser are in fact a masterclass
4 of understatement, given that, if he had the material we
5 have, his comments already demonstrating an elegant and
6 descriptive damning of the Post Office would have
7 spirited him into a further call for those responsible
8 for concealing the true extent of the faults of the
9 Post Office to go into a handy police station as quickly
10 as possible.
11 Now, my learned friend has already examined, and
12 therefore I will not repeat, some of the documentation
13 that arose for consideration in 2013 within the
14 Post Office. I will therefore just very briefly refer
15 to a document to be found at bundle A, 476. Sorry, it
16 is within the judgment of Mr Justice Fraser at A, 476.
17 This is the part of the judgment where
18 Mr Justice Fraser is referring to the comment made by
19 Mr Wynne, already examined by my learned friend
20 Mr Moloney, this is the "My instinct is that we have
21 enough on without people asking us to look at things."
22 Now, at paragraph 219, we see then there is
23 a reference to Mrs van den Bogerd, sorry, agreeing in
24 evidence that this was an inadequate response and then
25 reading through there, we see that Mr Justice Fraser
1 deals with it this way:
2 "By 2013, Horizon was an extraordinarily
3 controversial subject. There can simply be no sensible
4 execution for the Post Office's failure to try and
5 understand this particular subject. This is
6 particularly reprehensible given that an internal
7 Post Office document in August 2013 showed that
8 Mr Wynne's involvement in this was because his area of
9 responsibility was as follows, resolving specific branch
10 accounting issues."
11 So we know, through this period of time, that by the
12 time we get to the middle of 2013 the entire issue was
13 under examination in public, or at least started to be
14 fuller under examination in public at that time.
15 Mr Justice Fraser did not have the Simon Clark advices,
16 nor the surrounding material that we asked for and
17 pressed for disclosure of in our disclosure management
18 document at paragraph 36(2). In our submission, the
19 Simon Clark advices are helpful in understanding what
20 the attitude of the Post Office was and its facility
21 towards sub-postmasters. It provides one further part
22 of the story of assistance, as a litmus test on the
23 consummate failure of the Post Office to consider
24 anything like a proportionate, fair and honest system of
1 So the clock has now ticked to 2013. The
2 respondents state as regards these appeals that any
3 fault and any omission is only limb 1 abuse of process,
4 not for everyone but the generality is that that is the
5 way that respondents answer these matters, and the
6 respondents say certainly not limb 2 in the vast
7 majority of cases. The respondents also say that, as
8 regards the appeal, that because various bugs and issues
9 occurred at different times, the appellants can be
10 criticised for taking a whole case stance to the
11 attitude of the Post Office and the failures in
12 disclosure and investigation. Yet the Post Office knew,
13 hence its reluctance, to have the consideration of bugs
14 and problems within the Horizon system, if widely known,
15 would give rise to the wider suggestion that, if this
16 bug exists, then the system is flawed.
17 My Lady, in your discussions with my learned friend
18 Mr Moloney Queen's Counsel, this was referred to as the
19 attitudinal point.
20 Within the statements made by Mr Jenkins or
21 Ms Thomas, who were Fujitsu experts called by the
22 Post Office to present the "no problem with Horizon"
23 evidence, those witnesses said at the close of their
24 statements, generally, that:
25 "There is no reason to believe that the information
1 in their statement is inaccurate because of the improper
2 use of the computer. To the best of my knowledge and
3 belief at all material times the computer was operating
4 properly and, if not, any respect in which it was not
5 operating properly or was out of operation was not such
6 as to affect the information held on it."
7 So it was known and understood that there was a need
8 within criminal cases to make general comments about the
9 operation of the system, the computer system.
10 There are two Simon Clark advices. Can I take you,
11 please, first of all to bundle C, page 81. Bundle C,
12 page 81, this advice deals with the use of expert
13 evidence in relation to the integrity of the Fujitsu
14 Horizon system, and we will call this for the moment the
15 integrity advice, as that is part of its title.
16 Bundle C2, and the second advice is at page 1198.
17 In order of context, the disclosure advice, the
18 second advice, needs to be considered first. As you
19 will see, paragraph 1 refers to 3 July 2013, whereby the
20 reference is made by Mr Clark to his attending the
21 Post Office in conference at Post Office head office to
22 consider issues relating to the Horizon computer system
23 and the prosecution of criminal offences committed
24 against POL by sub-postmasters and clerks. Paragraph 2:
25 "One of the topics considered by the conference was
1 of that disclosure and he advised that there ought to be
2 a single central hub, the function of which was to act
3 as the primary repository for all Horizon related
4 issues. The hub would collate from all sources into one
5 location all Horizon-related defects, bugs, complaints,
6 queries and Fujitsu remedies, thereby providing a future
7 expert witness and those charges charged with disclosure
8 duties with recourse to a single information point."
9 So we know by this stage that no system had been
10 established, as by 2013, when matters had been reported
11 in the press, there were growing concerns, the problems
12 with Horizon were coming out into the open, and there
13 was a recognition by Mr Clark that there was no such
14 system. So despite the fact that we don't have all
15 material, we know in fact here the description of what
16 there wasn't within the prosecution of individuals that
17 the Post Office had decided to bring before the courts.
18 So we read on that, paragraph 3:
19 "POL accepted that advice and, accordingly, a weekly
20 conference call meeting was established so as to meet
21 the requirement of the central hub. Participants were
22 informed that they should bring all Horizon-related
23 issues they had encountered to the meeting, minutes were
24 taken, retained and disseminated to those who required
25 the information. So far, to that extent, so good.
1 A late recognition of a failure of a system, the attempt
2 to say this is what should happen in the future."
3 Paragraph 4, therefore, refers to three such
4 conference calls, each conducted on a Wednesday morning
5 with a representative of Cartwright King solicitors
6 attending each meaning, a minute-taker appointed for
7 each call and I understand that each of the minute
8 takers retained their own handwritten minutes. By this
9 stage we can see what is happening, this an attempt to
10 say "Stop what we have been doing in the past because,
11 frankly, we haven't been doing anything but putting
12 ourselves forward with a fair and objective disclosure
14 Paragraph 5 though instructs us how this is then
15 dealt with by the Post Office:
16 "At some point following the conclusion of the third
17 conference call, which I understand to have taken place
18 on the morning of Wednesday, 31 July, it became unclear
19 as to whether to what extent material was either being
20 retained centrally or disseminated, the following
21 information has been relayed to me. The minutes of
22 a previous conference call had been typed, and emailed
23 to a number of persons. An instruction was then given
24 that those emails and minutes should and have been
25 destroyed. The word 'shredded' was conveyed to me.
1 Handwritten minutes were not to be typed and should be
2 forwarded to POL head of security. Advice had been
3 given to POL which I report as relayed to me verbatim.
4 If it is not minuted, it is not in the public domain and
5 therefore not disclosable. If it is produced, it is
6 available for disclosure. If not minuted, then
7 technically it is not. Some at POL do not wish to
8 minute the weekly conference calls."
9 May I take you, just briefly, to page 1194.
10 My Lord, I am going to go back to that reference after
11 the luncheon break because I have a note is wrong.
12 What we have therefore, within the disclosure
13 advice, is both the setting up of a system, central hub
14 system, and then we can see how it is dealt with by the
15 Post Office.
16 The Post Office reaction to the attempt to set up
17 a system that might possibly deal with disclosure is one
18 of dishonesty. It is one of destruction of documents,
19 it is of shredding of documents and, contextually, you
20 cannot read this any other way.
21 The point after the shredding paragraph,
22 paragraph 1, at page 1199, is followed by:
23 "Handwritten minutes were not to be typed and should
24 be forwarded to POL head of security."
25 Contextually, it cannot be said that is for
1 safekeeping. Certainly the concerns, as expressed by
2 Mr Clark, are that this was an attempt by members of
3 staff within the Post Office to keep back material
4 rather than put it forward.
5 LORD JUSTICE HOLROYDE: Shall with break off, there
6 Mr Stein?
7 MR STEIN: Thank you.
8 LORD JUSTICE HOLROYDE: It might just be helpful to the
9 court to have broad indication of proceeding this
10 afternoon. Mr Stein, how much longer will you be?
11 MR STEIN: My Lord, I hope to be concluded in the next
12 15 minutes after resumption.
13 LORD JUSTICE HOLROYDE: Then Ms Busch, I think you are next?
14 MS BUSCH: Yes, I should be about half an hour to
15 40 minutes.
16 LORD JUSTICE HOLROYDE: Then there will be brief submissions
17 from others. Inevitably the more submissions go on, the
18 more ground will be covered by others.
19 So Mr Altman, clearly you are not going to have
20 a full afternoon, but you will at least be able to start
21 this afternoon.
22 MR ALTMAN: I shall most certainly be part heard into
23 tomorrow morning.
24 LORD JUSTICE HOLROYDE: We are in the position that the
25 timetable was drawn up in necessarily broad terms
1 because it was very difficult to predict how long these
2 arguments need to take, particularly -- we do have the
3 advantage of Friday being available as an overflow if we
4 need to. But can I ask that is not taken as a general
5 hint for everyone to double the length of their
7 All right, thank you very much.
8 A MEMBER OF THE PRESS: My Lords, I am from the Press
9 Association (Inaudible). Can I ask very quickly, the
10 respondent has indicated they have an objection in
11 principle to skeleton arguments and opening (Inaudible)
12 disclosed to the press, but I understand they want the
13 court's approval about that.
14 THE CLERK OF THE COURT: My Lord, can I mention a similar
15 request which we have received from a representative
16 from the inquiry, a written enquiry, asking for
17 disclosure of skeleton arguments.
18 LORD JUSTICE HOLROYDE: Yes, well, certainly thus far, there
19 has been comprehensive reference to those documents.
20 I just cannot imagine any objection to disclosure of
21 them? I see lots of head movement indicating that is
22 so. If any problem arises, no doubt it will be
23 addressed on a specific occasion.
24 But, in principle, we are at a stage where counsel,
25 having helpfully prepare these documents, are referring
1 to them in sufficient detail.
2 A MEMBER OF THE PRESS: My Lord, sorry, does that also
3 include the documents --
4 LORD JUSTICE HOLROYDE: (Inaudible).
5 A MEMBER OF THE PRESS: You know my interest in the Clark
6 advice, and it has now been referred to. Would that
7 also be part of the documents, my Lord?
8 MR ALTMAN: My Lord, the Clark advice which has been
9 referred to so far is the one of the 2 August 2013; the
10 one Mr Wallace is interested in is the one of
11 15 July 2013. I don't know if Mr Stein is coming to
12 that this afternoon or not?
13 MR STEIN: My Lord, I am.
14 LORD JUSTICE HOLROYDE: Mr Stein, can we short-circuit this;
15 you are very likely, aren't you, to refer to those
16 documents in considerable detail.
17 MR STEIN: Yes.
18 LORD JUSTICE HOLROYDE: Indeed, you have already done so.
19 MR STEIN: I am and, if it assists the court, my own view is
20 that they will be covered in such detail as they should
21 be, then disclosed.
22 MR ALTMAN: Can we revert at 2.00, please, or informally to
23 Mr Wallace perhaps and then tell the court what we have
24 said at 2.00.
25 LORD JUSTICE HOLROYDE: We will say 2.05.
1 (1.06 pm)
2 (The Luncheon Adjournment)
3 (2.05 pm)
4 LORD JUSTICE HOLROYDE: Mr Altman, you wanted to come back
5 on that point.
6 MR ALTMAN: My Lord, the press have been or will be given a
7 summary of (Inaudible), and in terms of documentation
8 referred to during the course of proceedings, the press
9 will be given relevant documents which have been
10 referred to, rather than the whole of bundle C. Some of
11 the material may not be referred to at all.
12 LORD JUSTICE HOLROYDE: Yes.
13 MR ALTMAN: Is that --
14 LORD JUSTICE HOLROYDE: For the avoidance of doubt, the one
15 the Clark advice has already been referred to in
16 extenso, as we used to say, and the other one shortly
17 will be.
18 MR ALTMAN: Yes.
19 LORD JUSTICE HOLROYDE: All right. Does that conclude that?
20 MR ALTMAN: As far as we are concerned, yes.
21 LORD JUSTICE HOLROYDE: You are happy? Right, thank you
22 very much.
23 Mr Stein.
24 MR STEIN: Thank you, my Lord.
25 We have been therefore examining the disclosure
1 advice and we have reached the point whereby we can see
2 what is being discussed regarding the Post Office's
3 expressed intention, or staff members within it, to try
4 and keep back material.
5 I referred, before the short adjournment, to a page
6 number that I thought I had in error. In fact, it is my
7 own bad handwriting. It is indeed page 1194, and the
8 use of that is that at paragraph 4, at page 1199 of the
9 disclosure advice, some at POL do not wish to minute the
10 weekly conference calls. We can see one of those
11 conference calls at page 1194.
12 LORD JUSTICE HOLROYDE: Yes.
13 MR STEIN: In short, the weekly conference calls, including
14 19 July and 24 July, these entries, clearly are
15 reference to individuals who are reporting back as part
16 of those calls, Gail, reference at 24 July, is referring
17 to a branch blaming Horizon and connectivity. A
18 reference to:
19 "Doesn't think that has been fully investigated.
20 There is a settlement of a debt for 700, felt it was
21 lost in flight transaction. The branch can recall when
22 Horizon system timed out. Santander confirmed no double
23 transactions take place, think the branch is genuine.
24 Known to have POCA transactions lost in flight."
25 The references within these documents are, it seems,