Tuesday 23 March 2021

Day 2 transcript: Court of Appeal hearing - 42 Subpostmaster appellants

 This is the unperfected transcript from Court 4:

           1                                         Tuesday, 23 March 2021

           2   (10.30 am)

           3                           Housekeeping

           4   LORD JUSTICE HOLROYDE:  Mr Altman, just before you start, as

           5       everyone will be aware, there is to be a minute's

           6       silence at noon to provide an opportunity for people to

           7       remember those who have died over the last year of the

           8       pandemic.  To enable everyone to mark that occasion as

           9       they wish, we will rise between 11.55 and 12.05.  It is

          10       likely to be you on your feet at that time, Mr Altman,

          11       so perhaps you can time your submissions accordingly.

          12           Just to remind everyone, those in this courtroom and

          13       in the overflow courtroom, that if they choose to leave

          14       the courtroom during that 10-minute period, they must of

          15       course continue to observe social distancing and all the

          16       usual precautions.

          17           Thank you.

          18               Submissions by MR ALTMAN (continued)

          19   MR ALTMAN:  My Lord, thank you.  Continuing then from where

          20       I left off last evening, can I come on to some general

          21       observations on limb 2, before turning to the CCRC's

          22       reasons, then the appellant's grounds.

          23           Our submission is that no two cases are ever alike.

          24       Whilst one might result in an adverse finding on limb 2

          25       abuse of process in one of these cases, it will not


           1       inevitably do so in another, given the need to weigh in

           2       the balance relevant factors in each case.

           3           My Lord, can I pause there.  In the (Inaudible) as

           4       have been exhibited by two of my friends, we feel it

           5       would help the court if the court was to get a copy of

           6       my speaking note.  I am happy -- I have not been able to

           7       do it before now, but if I can say by the end of the

           8       day, or some time tomorrow, once I have tidied it up,

           9       would that be a help?

          10   LORD JUSTICE HOLROYDE:  Yes, tidied or untidied, it would be

          11       a very helpful document, Mr Altman.

          12           Perhaps I could just mention, we have also received

          13       a copy of a speaking note from Mr Saxby, who has yet to

          14       address the court.  I don't know whether that has

          15       reached you or not, but that, too, is a helpful

          16       document, and we are very grateful to everyone for

          17       providing these.

          18   MR ALTMAN:  I wonder if Mr Saxby, wherever he is, could find

          19       a way to getting a copy to us?

          20   LORD JUSTICE HOLROYDE:  I think he is attending by CVP, but

          21       no doubt he can hear what is being said.

          22   MR ALTMAN:  Thank you.

          23           I am told they are absent this morning.

          24   LORD JUSTICE HOLROYDE:  You are quite right, they are absent

          25       until this afternoon.


           1           Yes.

           2   MR ALTMAN:  A number of cases have been referred by the

           3       commission to this court with the same basic reasons.

           4       They were prosecuted by the same prosecutor, albeit

           5       under different company names, either side

           6       of April 2012, after the separation of Royal Mail and

           7       Post Office Limited.  They come before the court at the

           8       same time for good reason.

           9           We submit that does not mean that the outcome in the

          10       other cases might all be the same.

          11           The time factor is of significance here.  What might

          12       be argued could result in an adverse finding, say in

          13       2010, given the increasing awareness about Horizon

          14       issues, will not necessarily be true of a case that was

          15       prosecuted, say, in 2001.  Time specificity must not

          16       only have regard to when a problem is raised, but also

          17       to the full history and chronology of the issues so as

          18       to see whether, at the relevant time, the Post Office

          19       might have had reason to suspect there was any active

          20       risk.

          21           Again, it is only by detailed and fact specific

          22       analysis that one can see whether, in any given case,

          23       there was any knowledge of Horizon issues in the mind of

          24       the prosecutor that would render their decision to

          25       prosecute offensive to justice.  Thus it is our


           1       principal submission that, as regards limb 2, the court

           2       should, we say with respect, resist adopting, as it

           3       were, a one size fits all approach to cases with

           4       different facts, separated in some cases by 13 years.

           5           This is not to say -- and we have made this clear

           6       before and I repeat -- that the respondent is seeking to

           7       argue for a case specific analysis for every one of

           8       these cases now.  He may claim not only does he

           9       recognise, but also support the desire for there to be

          10       finality to these appeals, but not a globalised route to

          11       limiting findings across the board.

          12           Our submission is that poor investigation and

          13       non-disclosure alone do not go beyond limb 1 abuse, such

          14       that it may inexorably lead, or leads, to the same

          15       outcome in every case, so far as limb 2 goes.

          16           However, where limb 2 is concerned, we submit there

          17       has to be something that goes beyond the unfairness in

          18       the trial process, reflected by limb 1, allowing the

          19       court to say that there was prosecutorial misconduct in

          20       the prosecution and conviction of each of these

          21       appellants on the facts of their cases of a kind that

          22       amounted to an affront to the public conscience.

          23           We say that the broadbrush globalised approach,

          24       however attractive, which is the approach the court is

          25       being invited to take, can't achieve a just outcome.


           1           So, with those thoughts in mind, may I turn to the

           2       CCRC's reasons?

           3           The first point we make about the CCRC reasons on

           4       limb 2, we have to bear in mind, is the commission's

           5       statement of reasons that bring all these cases before

           6       this court on which the appellants have founded their

           7       grounds and their arguments.

           8           With no disrespect to the CCRC intended, the

           9       statements of reasons do not contain any careful

          10       analysis of the facts of the individual referred cases.

          11       The court will be familiar with the statements of

          12       reasons and their design.  The CCRC grouped the cases

          13       together under different heads.  The court will

          14       remember -- and I can give the references, you don't

          15       need to look at them, but, in bundle A, tab 1, page 54,

          16       applicants who were convicted after a trial on a not

          17       guilty plea.

          18           Bundle A, tab 1, page 60, applicants who pleaded

          19       guilty to false accounting.  In fact, it also included

          20       some allegations of fraud.

          21           Bundle A, tab 1, page 74, applicants who pleaded

          22       guilty to theft.

          23           Three groups of the applicants who originally came

          24       within the purview of the first statement of reasons, in

          25       arriving at the CCRC's decision, there was a real


           1       possibility the convictions would be overturned by this

           2       court if referred.

           3           Its conclusion, the CCRC's conclusion at

           4       paragraph 124 of its reasons, bundle A, tab 1, page 51,

           5       which falls under their heading of limb 2, is that --

           6       and if the court want me to take it to these passages

           7       I will, but your Lordship made clear yesterday you were

           8       familiar with the statements of reasons:

           9           "It was an affront to the public conscience that to

          10       bring proceedings in any case where the reliability of

          11       Horizon data was essential to the prosecution case when

          12       viewed in the eventual context against the Post Office

          13       applicant in question."

          14           It took, itself, a global approach to the balancing

          15       exercise, as is clear from what it says at

          16       paragraph 130, at page 52, tab 1, bundle A:

          17           "The CCRC remains of the view that the High Court's

          18       findings give rise to a cogent argument ..."

          19           I will pause there, if your Lordship wishes to --

          20   LORD JUSTICE HOLROYDE:  Yes.

          21   MR ALTMAN:  Bundle A, tab 1, page 52.

          22   LORD JUSTICE HOLROYDE:  Thank you very much.

          23   MR ALTMAN:  Paragraph 130, and it is the last five lines of

          24       that paragraph:

          25           "The CCRC remains of the view that the High Court's


           1       findings give rise to a cogent argument that individual

           2       Post Office prosecutions in which the reliability of

           3       Horizon data was essential to the prosecution case when

           4       viewed in the evidential context were an affront to the

           5       public conscience and should not have been brought."

           6           Further up that paragraph is a balancing exercise in

           7       which the CCRC said they didn't consider:

           8           "The offence types in these cases false accounting,

           9       fraud, or theft, often involving substantial sums of

          10       money, were so serious that this court would necessarily

          11       conclude that they outweigh any arguable setting out as

          12       to abuse of process."

          13           Now, the CCRC doesn't say what "when viewed in the

          14       evidential context" means in each case, given there was

          15       no close case specific analysis of the facts in the

          16       statements of reasons.  It is a generalisation, and we

          17       have taken it to mean no more than what is said by the

          18       CCRC, at paragraph 124.  So, the court has it open --

          19       turn back to page 51:

          20           "When those findings are considered in the round.

          21       The CCRC considers that there is a cogent argument that

          22       was (Inaudible).  It was an affront to the public

          23       conscience for the Post Office to bring criminal

          24       proceedings in any case where the reliability of the

          25       Horizon data was essential to the prosecution case, or


           1       when viewed in the evidential context against the

           2       Post Office applicant in question."

           3           There are, we submit, clear dangers in taking such

           4       an approach to different cases over the period of time

           5       that this court is dealing with.  The dangers of it are

           6       demonstrated in the CCRC's own reasons, at

           7       paragraphs 127 and 128.  All of this under the heading

           8       which is found at page 50 in effect (Inaudible).

           9           There the CCRC combined what it characterised as

          10       concerns, that it noted with concern, paragraph 127,

          11       four lines down:

          12            "... concerns it had in relation to alleged

          13       deliberate non-disclosure and the allegation in the

          14       contract was routinely and comprehensively overstated to

          15       reason that where the Post Office [the respondent] was

          16       victim, investigator, and prosecutor in those cases it

          17       'Consciously deprived' the defendants and the courts of

          18       a full and accurate understanding of reliability of

          19       Horizon and that it behaved oppressively to postmasters

          20       by overstating their contractual obligations."

          21           We have made these points before in the respondent's

          22       notices, but can I be forgiven for just taking the court

          23       through them now?  Because they are important.

          24           The first concerns 1271, the Post Office

          25       deliberately chose not to disclose full details of


           1       defects in Horizon because they might have an impact on

           2       ongoing legal cases.  There is a reference there to

           3       paragraph 457 of the Horizon issues judgment.

           4           The background, the factual background to that

           5       reasoning is to be found in section 1(c) of the

           6       statement of reasons.  I am not going to invite the

           7       court to go to it, but you will find that at pages 24

           8       and 25 of the statement of reasons, paragraph 60 and

           9       onwards.

          10           I am going to summarise it for the court, just to

          11       save time.  Where at paragraph 60, subparagraphs (1),

          12       (2) and (3), the CCRC talks about the receipt and

          13       payments mismatch bug.

          14           Paragraph 4, they talk about Fujitsu being less than

          15       forthcoming.

          16           Paragraph 5, its concerns about the veracity of

          17       Fujitsu employees.

          18           6, the peak in 2007, where the branch was not told

          19       about that particular problem.

          20           Paragraph 7, on page 26, or subparagraph 7, calendar

          21       square, Fujitsu knew since 2006, and we can take

          22       calendar square of an example of this bug, existed in

          23       Horizon.

          24           8, Fujitsu (Inaudible) personnel routinely referring

          25       documents to the known existence of bugs without being


           1       communicated to the sub-postmaster.

           2           9 and 10, a theme contained within some of the

           3       internal documents, extreme sensitivity seeming to verge

           4       on cogency(?) of institutional paranoia concerning any

           5       information that may throw doubts on the reputation of

           6       Horizon or expose it to further scrutiny.

           7           The reference there is to paragraph 946 of the

           8       Horizon issues judgment.

           9           So, it is on that basis, and against much of that

          10       background, that if one goes back to paragraph 127,

          11       tab 1, on page 52, it appears that the CCRC concluded

          12       that the Post Office deliberately chose not to disclose

          13       full details of defects, but these are the important

          14       words:

          15           "Because they might have an impact on ongoing legal

          16       cases."

          17           If the court wishes, as it were, to have a side

          18       note, paragraph 457 is to be found -- it is the Horizon

          19       issues judgment at tab B, tab 1B of bundle A, and

          20       page 544.  Here you find (Inaudible) which your Lordship

          21       and my Lady will be aware of from everything you have

          22       heard read, but the source of that was the receipts and

          23       payments mismatch issue loans, which you can see at 457,

          24       Mr Justice Fraser's judgment in the Horizon issue trial.

          25           To see, he says three lines down, at the end of the


           1       line:

           2           "To see a concern expressed, if the software bug in

           3       Horizon were to become widely known, it might have

           4       a potential impact upon ongoing legal cases where the

           5       integrity of Horizon data was essential ..."

           6           It is a very concerning passage to read in

           7       a contemporaneous document:

           8           "Whether these were cases concerning the civil

           9       claims or criminal cases, there are obligations on

          10       parties in terms of disclosure.  As far as criminal

          11       cases are concerned, these concern the liberty of

          12       a person and disclosure ...(Reading to the words)... in

          13       these documents hidden from view.  Regardless of the

          14       motivation, doing so was wholly wrong."

          15           So, that is the source of the CCRC's reasoning or

          16       the fundamental source of what they have to say at 1271,

          17       page 52, tab 1, bundle A.

          18           However, what the CCRC didn't go on to do was to

          19       explain how what happened in September

          20       and October 2010 -- in other words the issue notes,

          21       which I will refer to by the wording which I have

          22       invited the court to consider -- is how they comply or

          23       any analysis of the issue, of documents raised in all of

          24       these individual cases.  The receipts and payments

          25       mismatch bug was referred to in Mr Justice Fraser's


           1       technical accounts, and we can find it in my second

           2       bundle, the A bundle, behind tab 1C, at page 720.

           3           One needs to go to page 753 in the technical

           4       appendix to find reference to the receipts and payments

           5       mismatch bug.  This is Mr Justice Fraser's first of 29

           6       or 30, depending on which way you look at the numbering,

           7       to be found in the Horizon issues judgment.

           8           Paragraph 128, the bug occurred in 2010, and it is

           9       a bug which appeared in Horizon online.  So, what that

          10       means is it had no direct impact on Legacy Horizon

          11       cases, in other words the Horizon system before

          12       2009/2010.

          13           In paragraph 129 of the second limb appendix,

          14       Mr Justice Fraser tells us the effect of this bug issue

          15       was identified on the accounts of approximately 60

          16       branches.  The court will remember me saying yesterday

          17       in relation to (Inaudible) that it was Gareth Jenkins

          18       who had been told Second Sight for the purposes of the

          19       interim report of late July 2013, about receipts and

          20       payments mismatch (Inaudible) which affected about 60

          21       branches.  So that is the same bug that

          22       Mr Justice Fraser is referring to here.

          23           If one goes to paragraph 131 in the appendix:

          24           "The bug related to the process of moving

          25       discrepancies into the local ...(Reading to the


           1       words)... The majority of incidents are recorded as

           2       occurring between August and October 2010.  The bug was

           3       documented in a report from Mr Gareth Jenkins, dated

           4       29 September 2010."

           5           He quotes from it.

           6           Can we move, please, to page 756, at paragraph 139?

           7       One doesn't perhaps need to go into the technical stuff

           8       too much, but it is the third line:

           9           "This led eventually, on 5 October 2010, to the

          10       entry peak of product error fix after a patch had been

          11       released.  The patch displaced the change or set of

          12       changes to a programme or its supporting data and is

          13       something that changes the operation of the software."

          14           I don't need to go to the summary of bugs, which you

          15       will find in your bundle B.  But, in summary, that is

          16       exactly what Mr Justice Fraser summarised as the effect

          17       of the bug.  Its effects occurred between August -- the

          18       majority of them between August and October 2010, and it

          19       was fixed around October 2010.

          20           So, the important point is the bug which appears in

          21       Horizon online, no direct applicability to a number of

          22       these cases involving shortfalls in the branches running

          23       Legacy Horizon.  The CCRC rely on this clearly as

          24       a finding because it was one of two concerns which they

          25       described in the statement of reasons which I have taken


           1       the court to, paragraph 127(1).

           2   LORD JUSTICE HOLROYDE:  Mr Altman, I understand, of course,

           3       the broad point you are making.  Is it accepted by the

           4       respondent that this particular bug was relevant to any

           5       of the appeals?

           6   MR ALTMAN:  It was only relevant in the way that we have

           7       conceded and accepted it as long ago as the respondent's

           8       notice, that it should be considered for disclosure,

           9       ought to have been disclosed in Ms Misra's trial.

          10           You will remember we have (Inaudible) notes which

          11       are dated, it's thought around September/October 2010.

          12       Then there is that email exchange, that you will also

          13       remember, of 8 October 2010, in which Alan Simpson, who

          14       was one of those present at the meeting, emailed

          15       Rob Wilson, the head of the criminal department, and

          16       Jarnail Singh and Julia Patalay(?), (Inaudible), and you

          17       will also remember Mr Simpson expressed his concern

          18       about repercussions on other cases, which your Lordship

          19       adverted to yesterday.

          20           Now, at Mrs Misra's trial began on 11 October, days

          21       afterwards, so it is entirely conceivable, even

          22       though -- and Ms Misra's case was about Legacy Horizon.

          23       The indictment dates in her case were between middle

          24       of June 2005 and 14 January 2018.  That was

          25       Legacy Horizon, so a bug which appears in Horizon online


           1       cannot have any direct application to a previous

           2       iteration of the Horizon system.  But anyone who had or

           3       should have applied their mind to the concerns which

           4       were expressed and known about in Post Office security

           5       and in the (Inaudible) as we have accepted, they should

           6       have applied their minds to it, they should have

           7       considered the disclosure and, our submission is it

           8       should have been disclosed in Ms Misra's trial, and it

           9       ought to have been disclosed, or considered for

          10       disclosure, I should say perhaps more accurately, in all

          11       cases following thereafter.  We have made that plain in

          12       the past.

          13   LORD JUSTICE HOLROYDE:  Yes.

          14   MR ALTMAN:  The why, the why it didn't happen, we have set

          15       out, you may recall, in our short response skeleton of

          16       8 January.  We don't know.  Was it incompetence?  Was it

          17       individuals not understanding their duties?  Or was it

          18       deliberate?  There is no evidence before the court to

          19       say which it was, but the plain fact of the evidence is

          20       it was not disclosed and, in Ms Misra's case in

          21       particular, that is recognised as part of the overall

          22       concession in her case.

          23           Hers is a particularly bad example when compared to

          24       (Inaudible) of non-disclosure, given that one could say

          25       that Ms Misra's trial was the high-water mark of


           1       litigation on issues of Horizon integrity.  Therefore

           2       anyone should be on notice of the important issues which

           3       were being played out in her trial, when not only

           4       Gareth Jenkins was called on behalf of the Post Office,

           5       but Professor McLachlan on behalf of Ms Misra, but it

           6       wasn't and it ought to have been.  That, we say, is part

           7       of -- we don't seek to trivialise it at all, but that is

           8       all part of the limb 1 discussion.

           9   LORD JUSTICE HOLROYDE:  But we can take it, can we, that no

          10       document you want to draw to our attention in which

          11       those in authority, in the relevant prosecutions

          12       department, met the revelation of this bug and its

          13       non-disclosure with letters of protest saying, "What on

          14       earth are you doing not complying with your clear duties

          15       of disclosure?"

          16   MR ALTMAN:  As your Lordship knows, this has been

          17       (Inaudible) an extensive post (Inaudible) disclosure

          18       exercise, between 3 and 4 million documents have been

          19       looked at.

          20   LORD JUSTICE HOLROYDE:  Yes.

          21   MR ALTMAN:  No one has brought to my attention any document

          22       that explains, one way or the other, why it happened,

          23       why it didn't happen.  Or, to answer your Lordship's

          24       direct question, there were no protests, nothing of that

          25       kind.


           1           But here is the important point: this is all

           2       happening in October 2010.  One can look forwards, if

           3       the court wishes, and ask the question, balancing all

           4       the factors, for example, in Ms Misra's case, does that

           5       amount to abuse in her particular case, given the nature

           6       of her defence, the nature of the issues, and the

           7       importance, or not, of the RPM bug in particular or

           8       generally to the overview of the integrity of the

           9       Horizon system.

          10           That on its own facts is open to the court to

          11       adjudge.  What, with respect, one can't do, is look

          12       backwards and say before that bug arose in Horizon

          13       online, in 2010 -- one cannot look backwards and say it

          14       impacted on 10 years' worth of cases before then.  That

          15       is the problem and one we are trying to illustrate.

          16   MR JUSTICE PICKEN:  Can I just ask you, your launchpad for

          17       your submissions so far this morning is paragraph 127.

          18   MR ALTMAN:  Yes.

          19   MR JUSTICE PICKEN:  That is a paragraph that begins with the

          20       word:

          21           "Furthermore ..."

          22   MR ALTMAN:  Yes.

          23   MR JUSTICE PICKEN:  It then says you don't need time "to

          24       backdate, but ..." and then it says what it says.

          25   MR ALTMAN:  Yes.


           1   MR JUSTICE PICKEN:  But it follows, at paragraph 124, which

           2       you took us to, which begins with:

           3           "In the CCRC's view the High Court finding is

           4       summarised at paragraph 112 above are no less important

           5       to the consideration of whether there has been a second

           6       category abuse of process.

           7           "When those findings are considered in the

           8       round ..."

           9           Then it says what it says.

          10           If you then go back to paragraph 112, which is

          11       page 47, you see there that it lists a number of

          12       findings of Mr Justice Fraser, including that

          13       Legacy Horizon was not remotely robust, the first

          14       iteration of Horizon online was slightly more robust,

          15       and so on.

          16           I am just drawing this to your attention because it

          17       would be wrong, wouldn't it, for us to proceed on the

          18       basis that what the CCRC says about the second category

          19       of abuse is founded only on a paragraph beginning with

          20       the word "Furthermore"?

          21   MR ALTMAN:  I am not saying that, and I was going to make

          22       clear what my case, but I am not saying that, about

          23       these are two very important features which did

          24       influence the CCRC's reasons under limb 2.

          25           In actual fact, of course, if one goes to


           1       paragraph 112, as the CCRC itself makes plain, they

           2       support limb 1 side of things as much as they do

           3       anything else.  We say actually (Inaudible) they're

           4       limb 1 and not limb 2.  But what tipped the balance, we

           5       suggest, of the CCRC were these two particular concerns

           6       and I will show you why in a moment.

           7           But your Lordship is absolutely right, I don't want

           8       for one second the court to run away with the idea that

           9       it is just about 127, it is not.  Of course there are

          10       other findings, and they make clear, as I will show you

          11       in a while, that when they conclude in relation to each

          12       grouping, they state the numerous significant findings

          13       in the High Court judgment.  But, in particular, they

          14       rely on the two concerns, and that is why we say it is

          15       so important to just stand back and look at what

          16       persuaded the CCRC, as your Lordship puts it, the

          17       platform on which I am launching this particular

          18       argument.

          19   MR JUSTICE PICKEN:  Thank you.

          20   MR ALTMAN:  Now, the other (Inaudible) is that, in actual

          21       fact, when one analyses paragraph 457 of the Horizon

          22       issues judgment, the one where Mr Justice Fraser makes

          23       a series of comments, right comments -- nobody is

          24       criticising him, but comments is what they were.  They

          25       were not findings and they were not material to the


           1       Horizon issues (Inaudible), and so we submit it is

           2       important that distinction is borne in mind.

           3           So, when one thinks about the date in which the

           4       receipts and payments mismatch bug arose in 2010, the

           5       Post Office couldn't obviously disclose something to

           6       applicants or those who came before because it had not

           7       existed, and it is easy to overlook -- as we suggest the

           8       CCRC itself did -- that fundamental truth.

           9           The first point we make is that to refer to the

          10       judge's comments as signifying, as the CCRC did, that

          11       the respondent consciously deprived defendants and the

          12       courts of a full and accurate understanding of the

          13       reliability of Horizon, as fairly representative of the

          14       Post Office's approach to disclosure during its criminal

          15       prosecutions, in all cases over all time, is not right.

          16           One could criticise the Post Office for what

          17       happened after this particular event, but what one

          18       cannot do, with respect, is to apply it retrospectively.

          19   LORD JUSTICE HOLROYDE:  One cannot apply retrospectively in

          20       the sense, as you have just said, before 2010 there

          21       wasn't anything to disclose in this particular respect.

          22       But you will no doubt want to come on, at some point in

          23       your submissions, to address Mr Stein's submission that,

          24       even in 2013, Mr Clark was still having to give what

          25       might be thought to be pretty rudimentary advice about


           1       the disclosure duties.

           2   MR ALTMAN:  I am going to come on to that.

           3   LORD JUSTICE HOLROYDE:  Okay.

           4   MR ALTMAN:  The use of the word "conscious" to describe the

           5       deprivation, suggests the CCRC were saying not just the

           6       Post Office lawyers, but also their agents and counsel,

           7       had knowledge, some knowledge or awareness, at the time

           8       of the individual proceedings that they were depriving

           9       defendants, not just those going forwards, but all those

          10       going backwards in the course of a full and accurate

          11       understanding of the reliability of Horizon over all

          12       time.

          13           The point, focusing for the moment on the receipt

          14       and payments mismatch bug in the autumn of 2010, the

          15       point is that when the court is determining, as

          16       I already said, the issue of whether what happened in

          17       Ms Misra's case and any cases thereafter, whether that

          18       amounted to limb 2, its non-disclosure was such that it

          19       amounted to an affront to the public conscience, the

          20       court doesn't know whether it was just plain

          21       incompetence or whether it was entirely deliberate.

          22           The court doesn't know whether there was some

          23       overreliance on Fujitsu in relation to all other issues

          24       which have been submitted about yesterday, or

          25       an assumption about Horizon's reliability that later


           1       proved unreasonable.  Because, like any system, like any

           2       IT system, they have glitches and bugs.  The question

           3       is: at what point does a system like that prove to be so

           4       unreliable and so lacking robustness -- not used as

           5       an ordinary term of English, but used in the way that

           6       Mr Justice Fraser used it in the Horizon issues

           7       judgment, in paragraphs 36 to 56.  How does anybody know

           8       at what point -- how does one judge at what point, if it

           9       was reasonable to rely upon Horizon and make assumptions

          10       about its reliability, at what point that was no longer

          11       reasonable?

          12           The cases -- if I may select them just as examples,

          13       as I did yesterday -- of Ms Misra, Ms Felstead, and

          14       Ms Skinner are good examples of the dangers at the

          15       time, submitted about to the court, and how just using

          16       that above, and the CCRC's approach to this aspect has

          17       underlined its reasons on limb 2 without any trace of

          18       analysis can lead to unjust results on limb 2.  The

          19       first one to remind you of is Ms Misra pleading guilty

          20       to false accounting in March 2009.  She was later

          21       convicted of theft at a trial, in October 2010.

          22           If the court were to arrive at the conclusion, by

          23       way of example, of Ms Misra's conviction for theft is

          24       unassailable on grounds of limb 2, in light of the

          25       failure to disclose the RPM bug before or during her


           1       trial in the issues being litigated, the same simply

           2       cannot follow in respect of her pleas of guilty to false

           3       accounting, which were entered long before the RPM bug

           4       had appeared in Horizon online and before Fujitsu and/or

           5       Post Office discussed its impact on future cases

           6       in September/October 2010.

           7           If the court was to find that the RPM bug issue led

           8       to Ms Misra's conviction of theft being held to be

           9       unsafe on grounds of limb 2 abuse, that finding simply

          10       cannot apply to her pleas in March the year before.

          11           Equally, that bug, as everyone acknowledges, cannot

          12       have been disclosed in the cases of Ms Felstead, who was

          13       convicted in 2001, and Ms Skinner in 2007.  It had no

          14       bearing on their cases.

          15           That is why we say it is important, and entirely

          16       accepting what my Lord, Mr Justice Picken, said about

          17       what the CCRC relied upon.  But our submission is these

          18       two issues of concern furthermore appear to be tipping

          19       points for the CCRC with a view to Horizon.  I come --

          20       not yet, but I will -- to paragraph 128.

          21           Before I do, can I deal with the second point of

          22       concern?

          23           That the CCRC dealt with the Post Office, continuing

          24       comprehensively, overstated the contractual obligations

          25       on the sub-postmasters to make good losses.  I am


           1       reading from 127(2), at page 52:

           2           "The High Court concluded there was no excuse for

           3       this, that it must have been ...(Reading to the

           4       words)... sub-postmaster to believe they had no choice

           5       but to pay, and really was 'oppressive behaviour' by the

           6       Post Office."

           7           There is then a reference to two paragraphs of the

           8       common issues judgment, paragraph 222, and

           9       paragraph 723.

          10           The basis for this, again using the statement of

          11       reasons at bundle A1, is to be found at page 78.

          12           This is all part of -- I think I may have given you

          13       the wrong reference.  Forgive me, it is page 36.

          14           You will find the heading at H, section 1 of the

          15       reference.  Paragraph H.  There you will find over those

          16       few paragraphs reference to that second concern.

          17           If one looks at the top of page 37:

          18           "The CCRC does make clear, we will see in square

          19       brackets, in relation to a letter sent to a particular

          20       sub-postmaster, Mr Sabir(?), in January 2010, and this

          21       is where the CCRC take the quotation, at paragraph 222

          22       of the common issues judgment:

          23           "There can be no excuse, in my judgment, for

          24       an entity such as the Post Office to misstate in such

          25       clearly expressed terms, in letters that threaten legal


           1       action, the extent of the contractual obligation on

           2       a sub-postmaster for the losses.

           3           "The only reason for doing so, in my judgment, must

           4       have been to ...(Reading to the words)... to believe

           5       that they have absolutely no option but to pay the sum

           6       demanded."

           7           And this is where those words come from:

           8           "It is oppressive behaviour."

           9           Then, at paragraph 79, Mr Justice Fraser's finding

          10       that the Post Office behaved oppressively towards

          11       sub-postmasters by routinely overstating the

          12       sub-postmasters' contractual obligation for branch

          13       losses provides, in the CCRC view, further important

          14       context to the criminal prosecutions of sub-postmasters.

          15       The CCRC observed that it reinforces other findings of

          16       Fraser J in (Inaudible) 63 and 64 above.  If you just

          17       flick back momentarily to those, they found the head of

          18       Post Office adopting the default position, that

          19       sub-postmasters must be responsible for the level of

          20       investigation by the Post Office and Fujitsu

          21       (Inaudible), which has been conceded.

          22           But it was the default position of Post Office to

          23       hold (Inaudible) postmasters' response more for

          24       discrepancies, and that this assumption operated in the

          25       place of an objective and thorough investigation into


           1       the possible cause or causes of apparent branch

           2       shortages.  Now, I repeat that has been part of the

           3       concession on all the limb 1 cases.

           4           The factual background to this hiving is, and I am

           5       not going it take your Lordship and my Lady to

           6       paragraphs 221 and 222, in fact, of the common issue

           7       judgment, but I will give you the reference.  It is

           8       bundle A, tab 1, letter (a), at page 169.

           9           The background to the finding is that, in early

          10       2010, the Post Office had been seeking to recoup and

          11       then sue Mr Mohammed Sabir, who happened to be one of

          12       the lead claimants in the group litigation.  Mr Sabir

          13       was never prosecuted, far less convicted of any

          14       allegations.  But it was over some £360, and the letters

          15       sent to him referred to the sub-postmasters' contract as

          16       rendering him liable to make good any losses which, as

          17       Mr Justice Fraser said, was a mistake.  He, as we see,

          18       determined that the behaviour that led recipients to

          19       believe they had absolutely no option but to pay the

          20       sums of money was, as he put it, "oppressive".

          21           The only other finding in the case which may be of

          22       relevance to this clause is in relation to Ms Stubbs,

          23       who was another lead claimant.  There was no (Inaudible)

          24       demand in her case, but it was a case in point

          25       (Inaudible) for the claimants, which Mr Justice Fraser


           1       had something to say about, at page 151 of the common

           2       issues judgment.

           3           The other thing that he did make clear -- and it is

           4       the paragraph which the CCRC themselves refer to at the

           5       other paragraph 723 of the common issues judgment -- is

           6       that the criticism of Post Office's behaviour in this

           7       regard was identified, as he put it, "in the cases of

           8       the lead claimants".

           9           So, when one puts that in its proper context, and

          10       while I am not standing here defending any of the

          11       criticisms he made, as it were, or defending the

          12       Post Office against criticisms he made, it is important

          13       to recognise that the criticisms and the words

          14       "oppressive behaviour" referred to the case in

          15       particular of Mr Sabir, in respect of whom he made

          16       a finding as being one of the lead claimants.  He was

          17       not making a generalised globalised judgment on this

          18       issue in relation to anyone else, I accept.

          19           My Lord wants to ask a question?

          20   MR JUSTICE PICKEN:  Only this: I am looking at the earlier

          21       paragraphs of the common issues judgment.  My

          22       understanding is that the lead claimants were selected

          23       through a process of putting forward representative type

          24       claims, so as to avoid having to deal with 550-odd

          25       claims.


           1   MR ALTMAN:  I agree.  But your Lordship is absolutely right.

           2       But, by the same token, but for the second there would

           3       have been individual trials thereafter.  I am not going

           4       to pray that in aid for obvious reasons, but it is

           5       a fact that is how the trial process in these issues

           6       were going to go.

           7           Your Lordship is right, but my point is perhaps

           8       a general one, that Mr Sabir -- what the CCRC had

           9       reminded him of was a finding in relation to Mr Sabir,

          10       and there was no other evidence about which I suggest,

          11       Mr Justice Fraser would say oppressive behaviour, other

          12       than by reference to Mr Sabir's case, and it was.  But

          13       to extrapolate from that and, as it were, say that

          14       finding, if it was a finding, can apply across the board

          15       to all of these appellants without analysis -- that is

          16       my real point, without analysis -- is another matter.

          17   MR JUSTICE PICKEN:  But paragraph 723, subparagraph (1), as

          18       you acknowledge, says:

          19           "This was routinely and comprehensively ignored by

          20       the Post Office."

          21   MR ALTMAN:  It does.

          22   MR JUSTICE PICKEN:  I think it is fair to say there were

          23       attempts to challenge this judgment, at a number of

          24       letters, and I am not aware -- anyway, they didn't go

          25       anywhere.


           1   MR ALTMAN:  You are right about that, too.  It didn't go

           2       anywhere.

           3           But all I am submitting is one has to take great

           4       care before applying that kind of finding across the

           5       board to everyone.

           6           In other words, what the CCRC was influenced by was

           7       what they understood to be oppressive behaviour of that

           8       particular kind and, without case sensitive analysis of

           9       individual cases, how can one be confident that kind of

          10       oppressive behaviour applied across the board in every

          11       case?

          12   MR JUSTICE PICKEN:  That section, that 723 is part of, is

          13       a section headed:

          14           "Related contracts."

          15           It concerns matters such as imbalance of contractual

          16       bargaining power had at 722.  So, it was treated by all

          17       parties before Mr Justice Fraser as a point of general

          18       application.  It is in that context that he makes the

          19       finding of routine and comprehensive ignoring.

          20   MR ALTMAN:  Your Lordship is right.  But this is a criminal

          21       case, and a criminal case where the appellants --

          22       I don't want to be overtechnical, but it is the law, the

          23       burden on abuse of process.  In order to say to the

          24       court that, in my particular case, the Post Office was

          25       guilty of that kind of oppressive behaviour, one would


           1       have to find it within the facts of the case.

           2   MR JUSTICE PICKEN:  But you acknowledge that, but you are

           3       not in a position to say: oh, no, no, it is only those

           4       two lead claimants that the Post Office adopted this

           5       particular line with; everyone else they were completely

           6       and utterly --

           7   MR ALTMAN:  I am not saying that.

           8   MR JUSTICE PICKEN:  Of course not.

           9   MR ALTMAN:  I am looking at the judgment on which great

          10       reliance is placed.

          11   MR JUSTICE PICKEN:  You are not saying it for perfectly

          12       understandable reasons, but then to put the burden of

          13       proof point forward, even acknowledging this is criminal

          14       and not commercial may be said to have its limitations.

          15   MR ALTMAN:  I said I didn't want to be guilty of making an

          16       over-technical point and your Lordships may look at it

          17       slightly differently, but the court has my point, that

          18       care has to be taken before adopting such

          19       generalisations to all cases.

          20           There is a better point I can make, and it is this:

          21       what Mr Justice Fraser said about the sub-postmasters'

          22       contract not only applies to sub-postmasters, what it

          23       doesn't apply to are the 11 appellants before the court

          24       who were not sub-postmasters.  They were, for example,

          25       managers, and can they forgive me, please, for using


           1       just surnames.

           2           Holmes, Gill, Capon, O'Connell, Graham, and Hussain,

           3       one of the opposed cases, they were all managers, not

           4       sub-postmasters or subject to sub-postmasters' contract.

           5           Counter clerks: Felstead and (Inaudible).  Officers

           6       in charge: Irwin and Howard, and one sub-Post Office

           7       assistant.

           8           So, even if one took the point, routine,

           9       comprehensive, oppressive behaviour, all the points

          10       my Lord Mr Justice Picken has thrown back at me, which

          11       I am prepared to accept, they cannot apply to the 11

          12       appellants' fraud, who were simply not subject to that

          13       contract.  Yet again the CCRC made no such distinction.

          14           One comes then to paragraph 128, as I said I would,

          15       of the reference.  Behind tab 1, bundle A, at page 52.

          16           This is how 128 reads:

          17           "The CCRC is concerned by this evidence that

          18       Post Office, which was victim, investigator, and

          19       prosecutor in the case in question, consciously deprived

          20       defendants and the courts of a full and accurate

          21       understanding of the reliability of the Horizon system,

          22       that it behaved oppressively to sub-postmasters by

          23       overstating their contractual obligations."

          24           So, the CCRC has placed some reliance on those two

          25       concerns, subject to all the limitations that we have


           1       (Inaudible), but placed some reliance, some weight in

           2       arriving at its view.  But all of those matters in

           3       paragraph 112 were not only matters which went to

           4       limb 1, but, in addition to that, went to limb 2.

           5           We can see that the permission relied on the

           6       numerous significant findings.  As I have said,

           7       I concede it is not just about this, though this was

           8       influential.  Its concerns about those two particular

           9       findings because it applied them to the groupings of

          10       cases before it.  In two cases explicitly, and in one

          11       I suggest implicitly.  If we can go, please, within the

          12       reference to the same tab, it is page 60.

          13           This is part of the subheading of applicants who

          14       were convicted after a trial on a not guilty plea, and

          15       paragraph 159.  If one looks at the top of the page,

          16       four lines down:

          17           "In the context of the numerous significant findings

          18       between the Post Office and the High Court's judgments,

          19       including the two particular findings, which are set out

          20       in paragraph 127(5) above, the CCRC considers there to

          21       be a real possibility that the ...(Reading to the

          22       words)... will conclude, in the words of Lord Steyn, it

          23       was an affront to the public conscience for criminal

          24       proceedings to take place in all these (Inaudible)."

          25           For example, if we go back a single page, to


           1       page 59, paragraph 158, there, just by way of example,

           2       at subparagraph 1, the trials in these two cases took

           3       place in 2001 and 2003.  Well, the first of those

           4       findings cannot possibly have applied.

           5           Then, if the court will please move on to page 73,

           6       where CCRC is dealing with its conclusions on guilty

           7       pleas supporting guilty cases, paragraph 176.  We find

           8       much the same sort of framework:

           9           "Even where the Post Office applicants have admitted

          10       to entering false figures in branch accounts in order to

          11       conceal apparent shortfalls, the CCRC considers that in

          12       the context of the numerous significant findings against

          13       the Post Office in the High Court's judgment, including

          14       two particular findings set out at paragraph 127 ..."

          15           And so on and so forth.

          16           Then, finally, in this regard, page 79, CCRC's

          17       conclusions in relation to guilty plea instances.

          18       Slightly differently worded, paragraph 183:

          19           "CCRC is satisfied that the arguments in relation to

          20       abuse of process, see summary at paragraph 110 above,

          21       applies in the eight guilty plea cases in this group,

          22       even where the Post Office applicants have admitted to

          23       taking Post Office money, the CCRC considers that the

          24       evidential content of the individual cases in this

          25       group, taken together, were numerous significant


           1       findings against ..."

           2           Et cetera, et cetera.  It does not advert directly

           3       to paragraph 127, but submitted that the CCRC could not

           4       (Inaudible) grounds in the sense that it wasn't relying

           5       on (Inaudible) concerned.

           6           So, my Lord, that is all I am going to say about

           7       CCRC's references.

           8           I will turn, if I may, mindful of the time, to my

           9       general submissions on the appellants' grounds.

          10           The appellants' ground arguments, on limb 2, as

          11       I have said, in the CCRC's reasons, which we have

          12       submitted are flawed.  They place reliance on a global

          13       approach, together with the employment and a series of

          14       documents taken largely, not exclusively, from cases not

          15       before the court, as well as from internal reports to

          16       paint a generalised picture that Royal Mail or

          17       Post Office prosecutions were limb 2 unsafe.

          18           Where there is reference to documents from these

          19       appellants' cases, none of these so far is said to

          20       reveal case sensitive limb 2 abuse.

          21           Also, there is no case sensitive analysis of how, if

          22       at all, the general issues which have been submitted to

          23       the court impacted on the individual's cases.  It is not

          24       enough, we submit, to say that the reliability of

          25       Horizon data was essential to the case.  If there were


           1       failures of disclosure and investigation such that all

           2       cases are unsafe on limb 2 as well as limb 1 grounds.

           3           As I have said, and I am going for repeat it,

           4       because it ought to be repeated, but in the case of

           5       Ms Misra, as we understand it, the failure to disclose

           6       the (Inaudible), the argument her case is relied upon,

           7       understandably, as a case specific feature of limb 2.

           8           Albeit Messrs Parekh and Page make reference in

           9       their skeleton arguments to the facts in their cases,

          10       they and the remaining appellants did not, as we have

          11       understood it thus far from the documents we received --

          12       and goodness knows we received an awful lot in this

          13       case -- point to any case specific issue or issues in

          14       their cases, such as the ones that we have rightly

          15       conceded in the four cases I named yesterday, on limb 2,

          16       that render them also limb 2 abuses of process.  Rather

          17       they make the point contended about Post Office conduct

          18       and their motives, general, broadbrush, global, to argue

          19       that their cases were unsafe on limb 2.

          20           Just by way of example, my Lord, can we go to

          21       a bundle?  I don't think you have been taken to yet to

          22       bundle G.  Bundle G, tab 11, page 105.  You will find

          23       a skeleton argument, which was put in on behalf of

          24       Ms Misra, Ms Felstead and Ms Skinner.

          25           12 March, it is dated 12 March, so this was


           1       a skeleton put in, in relation to the final direction of

           2       the court back in November.

           3   MRS JUSTICE FARBEY:  Could you repeat the reference?

           4   MR ALTMAN:  Of course, my Lady.  It is page 105, tab 11,

           5       bundle G.

           6           That is the beginning of the skeleton document.  If

           7       we go, please, to page 114, at paragraph 24, Ms Busch

           8       relies heavily on that stage in the process, of bringing

           9       a prosecution by reference to the decision to prosecute.

          10       She reminds us that the Post Office was found to take

          11       the decisions to prosecute as a responsible and

          12       disinterested prosecutor advancing the public as opposed

          13       to its private interests, and she sets out there seven:

          14           "Subparagraphs including making decisions in

          15       a manner that is fair and objective, by reference to

          16       the~(Inaudible) Crown prosecutor."

          17           It is reasonable for her to have made that

          18       suggestion.  But for there to be no, with respect,

          19       analysis of alleged failings or prosecutorial misconduct

          20       under the code, and indeed under the CPIA, for the

          21       purposes of limb 2 without an examination of the alleged

          22       misconduct of those individuals, the decision makers.

          23       It is that which matters.  For obvious reasons, the

          24       High Court didn't hear from anyone.  We suggest trying

          25       to extrapolate from judgments, findings, that were not


           1       designed to pronounce on those matters is not helpful.

           2           Paragraph 66, the same document at page 127, the

           3       argument is made that the Post Office ought to have

           4       known how its own system works.  The reference is to

           5       paragraph 1018 of the Horizon issues judgment, and

           6       perhaps we could look at that.

           7           My Lords and my Lady, can I make sure that is the

           8       right reference before I ask you to --

           9   LORD JUSTICE HOLROYDE:  I think this is volume A, tab 1A,

          10       page 780.

          11   MR ALTMAN:  No, page 716.

          12   LORD JUSTICE HOLROYDE:  716?

          13   MR ALTMAN:  716, 1018, tab B.

          14           This was Mr Justice Fraser's finding in relation to

          15       one of the issues he had to deal with.  "The

          16       Post Office", he says in the second line:

          17           "The Post Office ought to have known how its own

          18       system works.  It is agreed by the experts that

          19       a sub-postmaster cannot record a dispute in Horizon at

          20       all."

          21           What Ms Busch argues, in paragraph 6 of her skeleton

          22       argument, is that Post Office ought to have known how

          23       its system works.

          24           That was an issue, as I say, which related to the

          25       sub-postmasters not being able to record a dispute on


           1       Horizon.  I am sorry to have to take you to another part

           2       of your bundles, but if we look, please, at the common

           3       issues judgment, which you will find in the bundle at A,

           4       1A, so tab A, behind 1.  Tab 1, in bundle A, and page 92

           5       is where it begins.  At page 231 in that bundle, please.

           6       231, paragraph 460.

           7           Here if one flicks back to 230, Mr Justice Fraser

           8       was dealing with the evidence of Helen Dickinson.  We

           9       can see, at 452, on page 230, she was, or is at that

          10       time, security team leader at the Post Office.  Started

          11       at Royal Mail in 1992 with a delivery job.  Her interest

          12       increased, the role evolved into that field of revenue

          13       protection, which was the department responsible for

          14       preventing loss of cash stock assets by errors or fraud.

          15       Worked in management, in revenue protection for five

          16       years, and then became area manager and moved into the

          17       security and investigations service team in Royal Mail

          18       in 2000, which dealt with fraud.

          19           Then joined the Post Office investigation team in

          20       2003, and was promoted to security team leader in 2013.

          21       It is against that background I invite the court to look

          22       at 460, paragraph 460, on page 231:

          23           "Ms Dickinson, given all of that experience, didn't

          24       know [obviously this is Mr Justice Fraser] that there

          25       was no ...(Reading to the words)... button on the


           1       Horizon system, and that even disputed items by

           2       sub-postmasters had to be accepted so far as the Horizon

           3       system is concerned.

           4           "This is a surprising admission in the knowledge in

           5       the knowledge of someone whose ...(Reading to the

           6       words)... includes dealing with potentially dishonest

           7       sub-postmasters.  She has only limited knowledge of the

           8       Horizon system, although she had been given some initial

           9       training on a course with sub-postmasters and said she

          10       had picked things up since.  She said, 'The number of

          11       days' training was three, and then basically you pick

          12       things up as you go along.  Ultimately, I wouldn't work

          13       on the Horizon system because then that would cause

          14       conflict with me investigating a matter'."

          15           My point is: if someone of that seniority within the

          16       Post Office didn't understand the system, then the

          17       submission that the Post Office ought to know its own

          18       system breaks down at higher levels than Ms Dickinson.

          19       It is pretty unlikely that the decision makers

          20       understood how Horizon itself worked, and I will come

          21       back to Fujitsu in a while.

          22   MR JUSTICE PICKEN:  He goes on, in paragraph 461, to say

          23       that he doesn't see why there is a conflict:

          24           "But, anyway, logic would suggest the investigator

          25       might be assisted by having more, or even some, detailed


           1       knowledge of how Horizon worked.  Anyway, essentially he

           2       gets somebody to help."

           3   MR ALTMAN:  Yes, I can't dispute that.  My point is, that's

           4       the level of knowledge.

           5   LORD JUSTICE HOLROYDE:  Sorry to interrupt, Mr Altman,

           6       I don't want you to think I am sniping at you in any

           7       way, but I am afraid I just don't understand this point.

           8           If the proposition is the Post Office ought to know

           9       how its own system works, you may or may not wish to

          10       argue against that.  But, if it is a valid proposition,

          11       then simply to say, "Actually, they didn't know how it

          12       all worked", is a confession, not a challenge to the

          13       assumption.

          14   MR ALTMAN:  First of all, I am not up here to challenge

          15       anything.  All I am saying is: when it is suggested that

          16       the Post Office ought to know, first of all, in fact,

          17       the Post Office relied a lot on Fujitsu, and I am going

          18       to come back to that because Mr Justice Fraser had a lot

          19       to say about that.  That is the first point.

          20           But, secondly, I can't deny that Post Office ought

          21       to have known that there is -- and they did know, and

          22       I am going to show you how they did know certain things

          23       because I am going to take you to certain paragraphs of

          24       what Mr Justice Fraser said on this issue.

          25           But the fact they ought to know, the question


           1       arises: how much ought they to have known?  And "how

           2       much?" comes back to "ought they to have appreciated?",

           3       and how much ought they to have understood about where

           4       the active risks were?

           5   MRS JUSTICE FARBEY:  I, like Mr Justice Holroyde, don't want

           6       to snipe, but can I try to provide the answer to you?

           7       The answer to that is sufficiently for them to prosecute

           8       responsibly and not irresponsibly, bearing in mind that

           9       their lack of knowledge may end up with the denial of

          10       the deprivation of liberty of those who were affected by

          11       those decisions.  I think one has to look at the context

          12       of it before saying whether or not that finding by

          13       Mr Justice Fraser, whether limited in the way we say or

          14       not, is a reason to exculpate your client.

          15   MR ALTMAN:  The problem, if I may say so, my Lady, with that

          16       is that -- let's move away from the Post Office and

          17       think, for example, about the Crown Prosecution Service.

          18       It often prosecutes cases based on facts which are

          19       outwith its own knowledge.  It might rely on a suite of

          20       experts, and it might rely on the expertise of people

          21       who say, for example, DNA.  Imagine if an individual was

          22       found in a particular place that makes a case that might

          23       otherwise have been not possible to put, passed the

          24       first stage of the test of Crown prosecutors.

          25           I accept that, in the situation in which the


           1       Post Office found itself, where it had a supply contract

           2       with Post Office, with Fujitsu, and Fujitsu supplied its

           3       IT, that more knowledge was better than none, but that

           4       is not with respect to be equated with the prosecuting

           5       responsibly because the question arises -- it is the

           6       question I posed earlier: at what point -- because it

           7       cannot be from the beginning, I suggest.  At what point,

           8       if any, was it no longer reasonable for the Post Office

           9       to rely upon Fujitsu or rely upon what Fujitsu was

          10       telling it about its systems?

          11           That is the problem.  It is a different one, but if

          12       Fujitsu was the supplier, was the expert, and on

          13       occasions when they supplied Gareth Jenkins as an expert

          14       witness, or he was called as an expert witness, to what

          15       extent was Post Office not permitted to rely upon him

          16       when he said the system was robust?

          17           That actually brings us to the Clark advice, because

          18       it was because of what was discovered by the circuitous

          19       route of setting aside the interim report of 8 July,

          20       which was discovered by chance, by Simon Clark and

          21       Martin Smith of Cartwright King, it was Gareth Jenkins

          22       who had supplied the information about those two bugs,

          23       the Second Sight for the purpose of that interim report,

          24       that they, Simon Clark, on instruction, wrote the advice

          25       to the Post Office that Jenkins couldn't be relied upon.


           1       That if he was an expert, he was in breach of his duties

           2       and, frankly, even if he wasn't, he was in breach of

           3       duties to reveal -- or just the common fact he was

           4       a witness, even if he was a witness of fact, rather than

           5       one of (Inaudible).  There was certainly a duty on him,

           6       where it was reasonable to expect him to provide the

           7       information to the Post Office.

           8   LORD JUSTICE HOLROYDE:  Before we go any further with that,

           9       Mr Altman -- we will perhaps postpone it to a later

          10       stage -- probably now is a good time to break, but

          11       perhaps we can just flag up, for you and others, that

          12       some of what you have just said rather touches upon one

          13       of Ms Busch's submissions yesterday, which one might

          14       encapsulate by saying: who knew [or ought to have known]

          15       what, when?

          16           We might be assisted by some consideration of

          17       whether the words in the square brackets should be there

          18       and, if so, how they should be applied.

          19   MR ALTMAN:  My Lord, I am coming to that.

          20   LORD JUSTICE HOLROYDE:  I guessed you would be.

          21           All right, we will rise until 12.05.  We understand

          22       there will be a tannoy announcement at 12.00.  Thank you

          23       all very much.

          24   (11.55 am)

          25                      (A short adjournment)


           1   (12.05 pm)

           2   LORD JUSTICE HOLROYDE:  Yes, Mr Altman.

           3   MR ALTMAN:  My Lord, can I invite the court, please, to

           4       page 253, common issues judgment, bundle A, tab 1A,

           5       page 253, and paragraph 541.

           6           As I said, I will come back to this to go through

           7       some documents Mr Justice Fraser adverted to during the

           8       course of his judgment.

           9           At 541, he says:

          10           "A number of contemporaneous documents internal to

          11       the Post Office show there has been, at least to some

          12       degree, an awareness of Horizon problems within the

          13       Post Office itself over a number of years.  A number of

          14       these documents were put to the different Post Office

          15       witnesses.  These documents were referred to in the

          16       transcripts of proceedings, but not all of the documents

          17       were put.  I did however tell counsel~..."

          18           Then, at 542, what he does is he sets out, in fact,

          19       14 documents, extracts from them, which span the years

          20       2000 to 2017.  If one goes to number 10, it is a bit

          21       difficult to pick out, but page 256.  If the court

          22       focuses on number 10 and the date is 17 October 2012 ...

          23           You might want to make a note there, if I can

          24       respectfully suggest so because that bit is wrong.  This

          25       deals with the receipts and payments mismatch bug, and


           1       it was then understood that was the date of those

           2       issues, when in fact months later discovered it

           3       was September/October 2010.  There, a number of

           4       documents.  The judge dealt with the receipts and

           5       payments mismatch issue notes, which you have in your

           6       bundle C, and he goes through them.  Over the page, you

           7       will see in capitals, "SOLUTION 1", "SOLUTION 2",

           8       "SOLUTION 3".

           9           So, that was number 10 on his list of 14 documents

          10       that he had seen, for the purposes of the common issues

          11       trial.  Of course, he must have had more documentation

          12       available to him for the purposes of the Horizon issues

          13       trial.  At 543, on 259, what Mr Justice Fraser says is

          14       this:

          15           "These internal Post Office entries make it clear

          16       that notwithstanding the tenor of the Post Office

          17       evidence before me, behind the scenes there were at

          18       least a number of people within the Post Office who

          19       realised that there were difficulties with the Horizon

          20       system."

          21           That much is true.  However, it is equally clear

          22       that what Mr Justice Fraser did not do -- and I am

          23       coming now to the "who knew what and when" issue -- he

          24       did not make any findings in the Horizon issues judgment

          25       about who knew what and when.  He didn't have to.


           1   MR JUSTICE PICKEN:  Mr Altman, on this point of detail, and

           2       we don't need to turn it up, it is tab 428 of the

           3       Horizon judgment, he acknowledges that date of

           4       17 October is the wrong one, so that now is known.

           5   MR ALTMAN:  Yes.

           6           As it happens, I am going to the Horizon issues

           7       judgment, your Lordships are ahead of me, which is at

           8       tab B in bundle A.  Can we go, please, to page 705?

           9       705, paragraphs 960 and 961.

          10           This is what Mr Justice Fraser had to say on this

          11       issue:

          12           "In my judgment, the number of both the

          13       Post Office's own internal documents, and Fujitsu ones

          14       too, namely those that were not drafted for public

          15       consumption, plainly support my conclusions on the

          16       evidence.  Further, certain matters that have emerged in

          17       the Horizon issues trial, such as discussions within

          18       Fujitsu itself as to whether the Post Office should be

          19       told certain detrimental information about the Horizon

          20       system ..."

          21           Pausing there, I will come back to this when I deal

          22       with reliance on Fujitsu.  That is an important finding.

          23       The Post Office's own decision at the highest level not

          24       to investigate certain matters as recently as 2016 are

          25       of great concern.


           1           The Post Office has gone to great lengths over the

           2       years, and spent a great deal of time and a huge amount

           3       of public money, in defending the performance of

           4       Horizon.  It is also the case that the Post Office must

           5       have been reliant on Fujitsu to a certain degree, in

           6       terms of being provided with accurate information of

           7       a technical nature.  Again, important.

           8           That is not only obvious from the evidence, but has

           9       also been agreed by the experts in the third joint

          10       statement.  That accuracy from Fujitsu has not always

          11       been available, as demonstrated by this judgment.

          12           Then Mr Justice Fraser goes on to say, in the next

          13       paragraph:

          14           "Regardless of that, this judgment does not deal

          15       with who, if anyone, at the Post Office knew precisely

          16       what about Horizon and when.  These are not part of the

          17       Horizon issues.  In my judgment, a number of the

          18       specific internal contemporaneous documents ...(Reading

          19       to the words)... are entirely consistent with those

          20       conclusions."

          21           Had there been those individual trials, which were

          22       due to follow, I think there may have been one other

          23       general issues trial after Horizon, then that was the

          24       time Mr Justice Fraser may have been asked to make some

          25       findings, about who knew what and when in individual


           1       cases, but it certainly didn't come to it.

           2           Paragraph 78 of Ms Busch's skeleton argument,

           3       perhaps we don't need to go back to it, but for the

           4       court's reference, bundle G, tab 11, page 130.  She

           5       argues, and you may remember, limb 2 doesn't turn on who

           6       knew what and when.  We respectfully disagree.

           7           These decisions, the prosecution decisions, were

           8       made by human actors.  What they knew, if anything, is

           9       fundamental to any finding of limb 2 abuse.  There is

          10       a world of difference, we submit, in limb 2, between

          11       someone who was negligent or incompetent, kind of

          12       incompetence tag incompetence, gross incompetence, as

          13       Sir Brian Leveson called it in the State case, but it

          14       applies equally to the case of a private prosecutor, as

          15       regards Mrs Dickinson.  So, a world of difference in

          16       limb 2 between someone who was negligent or incompetent

          17       and didn't do their job, and someone who wilfully

          18       avoided the duties which were placed upon them.

          19           If the argument is correct, then what does limb 2

          20       turn on?

          21           I hope the court doesn't mind if I cite what

          22       my Lord, Lord Justice Holroyde, said in the judgment, on

          23       15 January of this year, in relation to the principle of

          24       the argument on limb 2.  The court may recall, in

          25       paragraph 40, this is what your Lordship had to say:


           1           "Ground 1 involves issues as to whether the

           2       respondent made appropriate and/or timely disclosure of

           3       information and material relating to the reliability or

           4       otherwise of the Horizon system.

           5           "Ground 2 may substantially turn on whether the

           6       relevance of that information and material was

           7       appreciated at the time by anyone concerned in the

           8       commencing of the prosecution against the appellants."

           9           I accept it was couched in the way that it was, but,

          10       my Lord, we would suggest your Lordship was, absolutely,

          11       if I may say so, right; it does turn on who knew what

          12       and when at ground level, people who were making

          13       decisions.

          14           We do respectfully agree with what your Lordship had

          15       to say.  Apart from the important issue of the RPM bug

          16       and that email exchange about it between Mr Simpson and

          17       the Post Office lawyers, on 8 October 2010, in the days

          18       before Ms Misra's trial, we repeat and submit, with

          19       respect, that there has to be something that

          20       distinguishes limb 2 from limb 1, that is relevant

          21       knowledge by the relevant decision maker in the relevant

          22       case.

          23           The general proposition --

          24   MR JUSTICE PICKEN:  Mr Altman, if I may, what I think is

          25       said by a number of the appellants is that there was


           1       a cultural mindset -- not the language used, but a way

           2       of describing it -- within Post Office which this court,

           3       it is suggested, can be comfortable about deciding

           4       existed, so as to mean that it is then not necessary to

           5       pinpoint individuals because those individuals would

           6       simply be following that cultural mindset.

           7   MR ALTMAN:  May I say that submission is a very dangerous

           8       one because, first, if it applies to -- when did it

           9       start?  If it started after the fifth of 32(?) cases

          10       that this court had to deal with, what happens to those

          11       cases before it?  When did it stop?  Who was involved in

          12       propagating or believing that culture?  Everybody?  Did

          13       anybody resist it?  Was there any evidence that lawyer A

          14       subscribed to that culture?  Is there any document to

          15       show that all the lawyers, including the lawyers in

          16       Cartwright King, independent of counsel, subscribe to

          17       that kind of culture?

          18   MR JUSTICE PICKEN:  If you are coming to the Clark advice,

          19       of course it is said that the Clark advice, the July

          20       one, demonstrates very much that there was exactly that

          21       because that is why there were instructions to not write

          22       anything down, that sort of thing.

          23   MR ALTMAN:  Your Lordship means the 2 August.

          24   MR JUSTICE PICKEN:  I mean the 2nd, I am so sorry.

          25   MR ALTMAN:  I will come to that and show you why, but let me


           1       just touch on that now.  The fact that a rogue

           2       individual made a suggestion like that is appalling,

           3       I am going to accept that.  But when we actually see

           4       what happened, or, more accurately, what didn't happen,

           5       the court may change its mind about what Mr Singh had

           6       said about (Inaudible).

           7   LORD JUSTICE HOLROYDE:  Thank you, Mr Altman, just before we

           8       move on, if we go back to an analogy you have posed in a

           9       different context earlier this morning, take it in

          10       stages, your submission obviously would be that the CPS

          11       would be perfectly entitled to launch a prosecution in

          12       reliance on, say, DNA evidence, even though, unbeknown

          13       to the CPS, the scientists concerned knew full well that

          14       his techniques were flawed, his conclusion was totally

          15       unreliable and that he was a peddler of misinformation.

          16           Equally, at the other extreme, you accept, I am

          17       sure, that the CPS would not be entitled to launch

          18       a prosecution based upon, or substantially relying upon,

          19       BAM(?) which you knew to be (Inaudible) based on the

          20       (Inaudible), but somewhere between those two extremes,

          21       perhaps there is a statement which would be, in square

          22       brackets, for all (Inaudible), close square brackets.

          23   MR ALTMAN:  Yes.

          24   LORD JUSTICE HOLROYDE:  At some stage we would be grateful

          25       for your assistance on that.


           1   MR ALTMAN:  It is a difficult one to confront because --

           2   LORD JUSTICE HOLROYDE:  That is why I want your assistance

           3       on it.

           4   MR ALTMAN:  It is a difficult one to confront for this

           5       reason: whether it is the right question, with respect.

           6   LORD JUSTICE HOLROYDE:  Yes.

           7   MR ALTMAN:  Because what one ought to have known is not the

           8       same thing as what that person did know, and

           9       constructive knowledge is not a concept in which the

          10       criminal lawyer gathers in terms of attributing

          11       knowledge or awareness to individuals.  Yet in my

          12       submission, the court is asked a direct question of what

          13       the Post Office ought to know and please forgive me for

          14       raising a couple of rhetorical questions: what they

          15       should have known about Horizon, is it about bugs?  If

          16       so, ought they to have known that a particular bug had

          17       been fixed?  Ought they to have known that the shortfall

          18       that a particular postmaster was complaining about, or

          19       had phoned the helplines about, could not possibly have

          20       impacted on their branch shortfall?

          21           What it that a particular bug only appeared in

          22       Horizon, and so it couldn't have applied to Legacy?  Was

          23       it one which didn't bear the hallmarks of being a bug at

          24       all because it was simply a hardware fix?  An engineer

          25       had gone into a post office and had seen certain


           1       problems arise and they were fixed fairly sharpish.

           2           What should individuals on the ground know?

           3           There is, if one just thinks about it, the lawyers,

           4       not engineers, far less computer engineers, how far and

           5       how much should they have known, and if the court

           6       arrives at the answer, "They ought to have known

           7       something", then the question is: what and how much?

           8       Should they have had technical know-how or were they

           9       entitled to rely -- I have said this more than once, and

          10       I will come back to it -- on what they were being told?

          11       At what point did it become unreasonable for those

          12       individual lawyers, and the Post Office more generally,

          13       to rely on assumptions that were being made about

          14       reliability?

          15           Take this as an example: in his paragraphs, in the

          16       robustness, the meaning of robustness in the Horizon

          17       issues judgment, at paragraph 36 and onwards, you will

          18       find his ultimate finding, and you will remember this,

          19       is that Horizon online was more robust than Legacy.

          20           If that is right, and that was Mr Justice Fraser's

          21       finding, does that mean it became more reliable to rely

          22       upon Horizon because it became more robust, rather than

          23       less robust?  I am not saying it didn't have problems,

          24       it did.

          25   MR JUSTICE PICKEN:  Mr Altman, just on the prior question,


           1       when you say this is the criminal law and therefore it

           2       is not a question of constructive knowledge, but is that

           3       entirely right?  Nobody is putting the Post Office in

           4       the dock here and saying: you have committed a criminal

           5       offence.

           6   MR ALTMAN:  No.

           7   MR JUSTICE PICKEN:  Surely it is a looser concept, one of

           8       abuse.  So, is it so easy to say, "Well, you don't get

           9       to constructive knowledge because it is a big

          10       organisation and you cannot say who knew what"?

          11   MR ALTMAN:  My Lord, it is an issue of evidence.  As

          12       a matter of evidence, when one speaks in criminal law of

          13       "knowledge", then one is talking about knowledge that --

          14   MR JUSTICE PICKEN:  What I am putting to you is that it is

          15       not the criminal law, and nobody is saying the

          16       Post Office is guilty of a particular criminal offence.

          17   MR ALTMAN:  No.

          18   MR JUSTICE PICKEN:  We are asking the question, for the

          19       purposes of limb 2: is what has happened an abuse?

          20   MR ALTMAN:  Yes.

          21   MR JUSTICE PICKEN:  So, it is not a question of saying,

          22       well, it is the (Inaudible) therefore constructive

          23       knowledge is not enough.  Surely it is a looser concept?

          24           The Post Office chooses to operate as a company,

          25       like many, many businesses around this country.  They


           1       operate by way of company, and that is -- they avail

           2       themselves all the advantages.  In those circumstances,

           3       bearing in mind the question that we are considering,

           4       why is constructive knowledge not enough to look at the

           5       company?

           6   MR ALTMAN:  Because one is looking at the decision makers

           7       and their knowledge.  What I am saying is you cannot

           8       attribute other people's knowledge or even knowledge

           9       somewhere within the business of Post Office to the

          10       individuals making those decisions.  That is why.

          11   MR JUSTICE PICKEN:  It's the Post Office that brought the

          12       prosecution.  The prosecution is the Post Office, the

          13       company.

          14   MR ALTMAN:  I agree, but it operates through human actors.

          15   MR JUSTICE PICKEN:  But it prosecutes as the company.

          16   MR ALTMAN:  Of course it does.  I am not denying that.  But,

          17       at some point, if one asks the question: ought they to

          18       have known how the system worked?  I come back to the

          19       answer I gave, how much?  What in particular; its

          20       architecture; its technical abilities; its

          21       compatibilities; its reliabilities?

          22           I am not throwing problems in the way of the court,

          23       I am just answering as honestly as I can based on the

          24       sniping, to use my Lord Lord Justice Holroyde's comment

          25       earlier, coming from all parts of the bench.  But I am


           1       more than happy to (Inaudible), so there is no

           2       misunderstanding.

           3           The point really is, and I entirely understand your

           4       Lordship's point that we do have a company who is

           5       prosecuting privately all of these postmasters, but if

           6       one is really drilling down into what went wrong here,

           7       and it did go wrong, we are actually looking at decision

           8       makers on the ground and what they understood and knew.

           9       That is from our perspective, the submission we are

          10       making, an important point to focus on.

          11   MR JUSTICE PICKEN:  Thank you, Mr Altman.

          12   LORD JUSTICE HOLROYDE:  I am sorry to nag away, but just

          13       accepting for the moment everything you have just said,

          14       not wanting to engage with that, if we get down to the

          15       prosecution on the ground, the individual decision

          16       maker, the individual case, the specifics, is your

          17       submission that it is simply what did he or she know or

          18       can it include, additionally, an element of what ought

          19       he or she to have known?

          20   MR ALTMAN:  Certainly it includes the first.

          21   LORD JUSTICE HOLROYDE:  Yes.

          22   MR ALTMAN:  My submission is it can only include the latter

          23       if there is careful definition and common sense, if

          24       I may say so, definition of what that lawyer ought to

          25       have known.


           1   LORD JUSTICE HOLROYDE:  I understand.

           2   MR ALTMAN:  In other words, and this is where it comes back

           3       to reliance on Fujitsu in latter day cases, reliance on

           4       Gareth Jenkins, where the litigation became more about

           5       reliability of Horizon itself (Inaudible), and we know

           6       how that ended up.  So there are any number of layers

           7       here which do not make an answer to this simple at all.

           8   LORD JUSTICE HOLROYDE:  Thank you very much.

           9   MR ALTMAN:  In other words it is not one dimension, that is

          10       the submission we make.

          11           Now, against that background, and timing as it is,

          12       can I then present to the court how Mr Justice Fraser

          13       himself recognised that the Post Office was reliant on

          14       Fujitsu.  We have looked at one paragraph already in the

          15       Horizon issues judgment, but if we, please, begin -- it

          16       is A1, tab B, page 545.  Paragraph 459, this, you will

          17       remember, if we look to the left, you will see at 457,

          18       and that is a paragraph I have already taken the court

          19       to and we will see it is receipt and payments mismatch

          20       bug.  At 459 he says:

          21           "In my judgment, however, there are sufficient

          22       entries in the contemporaneous documents to demonstrate

          23       not only that Fujitsu has been less than forthcoming in

          24       identifying the problems which have been experienced

          25       over the years but rather the opposite.  A majority of


           1       problems and defects which counsel put to Mr (Inaudible)

           2       [who was a Fujitsu witness], which were effectively

           3       admitted by him, simply would not have seen the light of

           4       day without this group litigation."

           5           Then, please, to page 597.  597, paragraph 652,

           6       point 1.  "It is important to identify ..."

           7           In actual fact it is 652:

           8           "It is important to identify so that the parties in

           9       this group litigation are aware the court's approach to

          10       disclosure."

          11           And he says why.  I think I may have got the wrong

          12       paragraph number.  It is my fault, it is 652/8, over the

          13       page at 598.

          14           "It is obvious that the Post Office has had to rely

          15       upon Fujitsu to a large degree.  However, given it was

          16       Fujitsu who told the Post Office what the known error

          17       log contained, Fujitsu has so far shown itself not to be

          18       entirely reliable in this respect.  Fujitsu are also

          19       responsible for the Post Office making a directly

          20       incorrect important statement in its EDQ ..."

          21           That is an Electronic Documents Question.

          22           "... about retention of KELs which led to the

          23       disclosure of about 5,000 of these some months after the

          24       trial closed."

          25   MR JUSTICE PICKEN:  Known Error Log, is KELs.


           1   MR ALTMAN:  Yes.  Then at 698, paragraph 934 and then 935.

           2   LORD JUSTICE HOLROYDE:  Page reference again, Mr Altman?

           3   MR ALTMAN:  698, paragraph 934.

           4   LORD JUSTICE HOLROYDE:  Thank you very much.

           5           Halfway through 934 you will find Fujitsu had powers

           6       which, until shortly before the trial started, Fujitsu

           7       sought to keep from the court and may not even be fully

           8       disclosed to the Post Office.  Because the extent of the

           9       new powers was kept secret in this way, the Post Office

          10       finds itself now having made misleading public

          11       statements previously.  That I think was about remote

          12       access.

          13           935, the next paragraph, seven or eight lines up

          14       from the bottom:

          15           "Fujitsu personnel routinely referred in such

          16       documents to the known existence of bugs.  Without this,

          17       so far as the documents deployed in the trial are

          18       concerned, being communicated to the sub-postmaster in

          19       question in these terms.  In places, there is even

          20       debate at Fujitsu shown in documents about whether the

          21       Post Office and/or sub-postmasters should be told.

          22       I don't see how a thorough professional and

          23       conscientious organisation could have produced the

          24       disclosure in this litigation, so many thousands KELs

          25       during 2019 itself, both during and even after the


           1       trial.  I reject that description.  It is an inaccurate

           2       description of Fujitsu and/or its investigative

           3       motivation."

           4           So if one speaks about withering criticism, that was

           5       withering criticism of Fujitsu.

           6           Then, if I can simply remind the court of the

           7       passage I took the court to earlier this morning,

           8       page 705, you will remember the paragraph 960.

           9           Just to paraphrase, discussions within Fujitsu as to

          10       whether the Post Office should be told certain

          11       detrimental information about the Horizon system, and

          12       four lines, five lines up from the bottom, the

          13       experience of (Inaudible) of the Post Office must have

          14       been reliant on Fujitsu to a certain degree in terms of

          15       being provided with accurate information of a technical

          16       nature.

          17           Finally, insofar as the Horizon issues judgment is

          18       concerned, page 712, 712, paragraph 995, three lines

          19       down:

          20           "I also consider that although the Post Office did

          21       have access to 'the causes of various shortfalls in the

          22       branches, including whether they were caused by bugs,

          23       errors and/or defects in the Horizon system', this had

          24       to be obtained through Fujitsu.  This should be recorded

          25       for completeness.  The evidence does not show the


           1       Post Office IT department either being capable of

           2       investigating directly itself or, if it was capable of

           3       doing so, actually undertaking it.  All investigations

           4       recorded in peaks and KELs show that Fujitsu did this.

           5       The terms for the experts' agreement in this respect was

           6       that the Post Office was 'reliant on Fujitsu for

           7       diagnosis of whether the occurrence of shortfalls was

           8       caused by bugs, errors or defects within the Horizon

           9       system'.  I find that the Post Office plainly was

          10       reliant upon Fujitsu in this way."

          11           Finally, in terms of this list, can I simply remind

          12       the court, and I will provide the reference, in annex 2

          13       to the CCRC statement of grievance, there is the

          14       transcript of the hand down of his judgment in the

          15       Horizons issues trial on 16 December 2018.  You will

          16       find it at bundle A, tab 1D at page 839 and 843(b),

          17       where Mr Justice Fraser said he had "very grave concerns

          18       about the veracity of evidence given by Fujitsu

          19       employees to other courts in previous proceedings."

          20           Hence his referral in his letter of 14 January 2020

          21       to the EPD(?).

          22           Can I come back to something which was touched upon

          23       yesterday, please, and it may be remembered that, in

          24       paragraph 17 of her speaking note, Ms Busch suggests

          25       that there is ample evidence that the Post Office or


           1       Fujitsu knew of the presence of bugs, errors or defects

           2       from the outset.  I dealt with one aspect of this

           3       yesterday afternoon, dealing with the 1999 acceptance

           4       interviews.

           5           She relies on her proposed, but not agreed, facts

           6       concerning bugs, but insofar as it suggests who knew,

           7       you may remember attached to her suggestion of agreed

           8       facts were three appendices, one of which set out

           9       a whole list of the peaks and KELs and the like.  We

          10       suggest there is a problem with such an approach.

          11           First, the assertion in the table that Post Office

          12       knew or Fujitsu knew doesn't begin to engage with who at

          13       Post Office knew, how that person knew, or indeed what

          14       they actually knew.  A good illustration of the dangers

          15       of that approach can be found by looking at the first

          16       entry on her table where it is suggested that the

          17       Post Office had knowledge, and after the test phase --

          18       just a peak my Lady, Mrs Justice Farbey referred to

          19       yesterday the one of 7 July 2000, which is referred to

          20       by Ms Busch.  Perhaps we can take it as -- it is not

          21       an easy read, as my Lady pointed out yesterday -- but it

          22       is to be found in tab 41 of bundle C.

          23           Tab 41, page 471 and it is PC0049629, and by the

          24       first hole-punch, if one squints a bit, one can just

          25       make out that it advises that this was all the work that


           1       was done when an engineer was arranging the (Inaudible).

           2       This was done, it looks like on the 29th, "He arrived at

           3       2.00", pm and then there is some acronym.  Another

           4       engineer came at 4.00 pm to do more work and then, below

           5       the next date and time is this on 24 July at possibly

           6       15.01:

           7           "Information: insufficient info.  Please provide

           8       (Inaudible) figures for how much the APs are out [APs

           9       are automatic payments] by, as well as the figures which

          10       show the discrepancy for the rem(?) and if possible the

          11       username of the person who was involved in (Inaudible)

          12       through these transactions and the .. "

          13           It is difficult to say, (Inaudible):

          14           "Please if you can get the rough times on and/or

          15       passed to HSW for more info."

          16           HSH, Horizon (Inaudible).

          17           If we could turn on, please, to the final page of

          18       this document, 474, it is the third entry up from the

          19       bottom, dated 17 August 2000 at 12.52.  This instance

          20       has been explained to you -- I think that says

          21       Post Office Counters Limited, via BIM, which is

          22       (Inaudible) system, Business Instant Management report.

          23       18 July 2000:

          24           "After discussing this with Jack MacKay live trial

          25       teams, TP [I think it says] have been able to confirm


           1       with PM [postmaster] that there are no further missing

           2       APSTXMs [automatic payment system transactions].  All

           3       transaction data has been provided in an earlier

           4       spreadsheet."

           5           The next line:

           6           "As such, please close this call as all transactions

           7       have been reported to Post Office Counters Limited."

           8   LORD JUSTICE HOLROYDE:  Who or what is TP?

           9   MR ALTMAN:  I think it is transaction payments or process,

          10       something along those lines.

          11           The point is that this peak, and the peak is not

          12       something the Post Office would necessarily have

          13       knowledge of in terms of its content, but this peak

          14       doesn't deal with the bug.  It deals with data loss when

          15       hardware at base unit was replaced.  Secondly, if one

          16       looks at what Post Office actually knew, then the entry

          17       I have just read out suggests that what Post Office was

          18       actually told is that the situation was resolved and

          19       (Inaudible) missing APSTXMs and further missing data.

          20           So just taking just one peak as an example, that,

          21       even if it was known, is not going to put anyone in the

          22       Post Office on notice of an issue about Horizon

          23       unreliability in terms of software.  This was a simple

          24       hardware issue which was resolved in a matter of days

          25       and the importance and why I bring it to the attention


           1       of the court is it illustrates the danger of the

           2       broadbrush approach in submissions and the failure to

           3       address in detail who knew what and how.

           4           Peaks are technical documents and Mr Justice Fraser

           5       was assisted in understanding them by hearing evidence

           6       from two experts, Warren and Coin(?).  No appellant --

           7       I am not complaining about this but it is a fact -- no

           8       appellant is calling evidence to assist this court in

           9       identifying what matters can properly be extrapolated

          10       from any of the peaks which the court can find in

          11       abundance.  For example, a peak may describe a symptom

          12       of a discrepancy or a mismatch.  That is not to say it

          13       was caused by a bug, error or defect.  A peak may well

          14       be a term for example of where the cause was, among many

          15       other possible causes, user (Inaudible).

          16           As such, and this is the submission I make now, we

          17       would invite caution before placing reliance upon the

          18       mere fact that in your bundles there are peaks such as

          19       this, beyond those set out in the Horizon issues

          20       judgment, and Mr Justice Fraser did have all of the

          21       assistance of experts to make proper findings.

          22   MR JUSTICE PICKEN:  Put simply, you say peaks like this you

          23       would expect in a system like this, both before testing

          24       and then in operation?

          25   MR ALTMAN:  No system -- and you will know that Horizon was


           1       a prime example of this -- but no system was ever going

           2       to be bug free.  They will have glitches, they will have

           3       outages, they will have power failures and all the rest

           4       that goes with it.  This case is about disclosure, not

           5       about a bug free system.

           6           Can I please touch again very briefly on the issue

           7       of Gareth Jenkins.  I have made clear certain comments

           8       about the Clark advice.  The other thing that is

           9       important to note, and I don't think I actually got

          10       round to saying it yet, is that what it led to -- and

          11       when I say the Clark advice, I mean the one we are

          12       probably more familiar with, the one of 15 July 2013 --

          13       it led to what was called the Sixth(?) review.  So it

          14       led to a post conviction disclosure exercise in which

          15       the Second Sight interim report was to be disclosed in

          16       cases which Cartwright King deemed to be appropriate,

          17       and what is known as the Helen Rose report, which was

          18       a report from June 2013, because it indicated within its

          19       content that Gareth Jenkins had some knowledge about

          20       that particular issue which dealt with the (Inaudible).

          21           Yesterday, I informed the court about the fact that

          22       Gareth Jenkins, it is believed, gave oral evidence only

          23       once.  That case was in the case of Mrs Misra.  He gave

          24       evidence on 14 October 2010.  He was cross-examined.  In

          25       the cases before the court, the only other two cases in


           1       which he provided witness statements but did not give

           2       evidence are the cases of Hughie Thomas and Khayyam

           3       Ishaq.  We know of eight other individuals not before

           4       the court in whose cases he also provided statements.

           5           We don't wish -- and I make clear I am not seeking

           6       to prejudge the ongoing police investigation -- but it

           7       is clear that not only did Post Office place reliance on

           8       Fujitsu, it also placed, we suggest until it was

           9       discovered otherwise, reasonable reliance on

          10       Gareth Jenkins and indeed the other Fujitsu witnesses --

          11       he was not the only one -- who spoke to the integrity of

          12       the system.  When I say Post Office, I mean not just

          13       Royal Mail before 2012 and not just Post Office after

          14       2012, and their in-house lawyers, but also

          15       Cartwright King, other solicitor agents who prosecuted

          16       on behalf of Post Office and not forgetting independent

          17       counsel.

          18           Now, my Lord, I was going to move on to deal with

          19       certain aspects of Mr Stein's arguments.  It is slightly

          20       early -- if your Lordship wants me to carry on, I will

          21       carry on now?

          22   LORD JUSTICE HOLROYDE:  Make a start, if you would, please.

          23   MR ALTMAN:  Absolutely.

          24           The skeleton argument on behalf of Mr Darlington and

          25       the four other appellants that Mr Stein represents, and


           1       it is to be found in bundle G, tab 19, at page 303.

           2   LORD JUSTICE HOLROYDE:  Thank you.

           3   MR ALTMAN:  At page 311, paragraph 39 and onwards, there is

           4       that heading "Cumulative effect of the Post Office's

           5       behaviour".  Paragraph 39, Mr Stein states that "the

           6       behaviour of the Post Office must be seen in the round."

           7       That is, the court will be aware, the comment that the

           8       CCRC itself uses, "Looking at all of these cases in the

           9       round ..."

          10           Mr Stein goes on to say that the possible suggestion

          11       that the actions of the Post Office should be considered

          12       case by case is "unsupportable in common sense":

          13           "Since the inception of Horizon in 1999 and the

          14       decisions made as regards these appeals, all disclosure

          15       decisions were motivated by the same decision-making

          16       process, which was to protect at all costs the

          17       Post Office to the detriment of all and any

          18       sub-postmaster."

          19           If one can just stand back for a moment from that

          20       submission in this skeleton argument, without any

          21       evidence to support a sweeping statement such as that,

          22       that every single decision on disclosure across the

          23       board was motived by the same decision-making process

          24       which was to protect at all costs the Post Office to the

          25       detriment of all and any sub-postmaster, yes, I accept


           1       and pointed them out -- there were on occasion

           2       unacceptable representations of protecting Horizon and

           3       they have been reflected where it was appropriate to do

           4       so, and there are other examples in cases not before the

           5       court, and I accept that.  But to make a statement of

           6       this nature, that every single disclosure decision was

           7       tainted in the way Mr Stein submits, without evidence to

           8       back it, is not, with respect, a representation this

           9       court should act upon.

          10           He goes on, and I am skating over paragraph 40 to

          11       41:

          12           "The concept of bad character should also be

          13       considered.  The failure of disclosure across so many

          14       cases of which more are coming forward is not

          15       an accident.  The Post Office serially failed in their

          16       duties of disclosure and thereafter continued to

          17       maintain up to and throughout the High Court proceedings

          18       that it was the sub-postmasters who were to blame.  This

          19       reprehensible behaviour underlines the point that the

          20       Post Office and its witnesses at the High Court [at the

          21       High Court] were only concerned with reputational

          22       protection and not concerned with the damage and the

          23       betrayal of trust to the sub-postmasters.  The behaviour

          24       statements and actions recorded in documents throughout

          25       the time of the creation of the Horizon system, for


           1       20 years, all go to the following points: (1) state of

           2       mind; (2) evidence of system; (3) bad character and

           3       corporate malfeasance."

           4           State of mind?  Whose state of mind?  How was it

           5       evidenced?  State of mind in relation to what?  Evidence

           6       of a system, not supported by detailed argument or

           7       documentary record even on its own terms.  Reference,

           8       I agree, to the High Court judgments.  What about these

           9       cases that we are dealing with?  Added to this, the

          10       seriousness -- and it is serious -- non-specific charge

          11       of bad character and corporate malfeasance without

          12       saying what is meant and who it applies to, and why.

          13           At page 313, over the page, paragraph 43, the acts

          14       of Post Office personnel and representatives, post the

          15       incident -- and this is something I mentioned yesterday

          16       and the reason why I took the court to that passage in

          17       Tague about post-incident conduct, and it is not

          18       possibly being within the jurisdiction of abuse of

          19       process this court has to deal with:

          20           "The acts of Post Office personnel and

          21       representatives post-incident assist the court in

          22       understanding the motive of those who are under

          23       examination."

          24           Who is under examination?

          25           "Indeed, further evidence of a continuing system, in


           1       this case a system which prevents disclosure of evidence

           2       of bugs and errors in Horizon."

           3           My Lords, my Lady, we say that kind of submission

           4       (a) does not help the court and (b) is so sweeping and

           5       so broad and so nonsensical as to be totally unhelpful

           6       and indeed unfair.  It cannot be dealt with.  It cannot

           7       be confronted.  We therefore suggest, with respect, that

           8       the court should not act upon such submissions.

           9   LORD JUSTICE HOLROYDE:  Thank you, Mr Altman.

          10           Is that a convenient point to break?

          11   MR ALTMAN:  Yes, thank you.

          12   LORD JUSTICE HOLROYDE:  Could I raise one matter with you,

          13       not asking for an answer now, but perhaps before the end

          14       of your submissions.  You mentioned in your submissions

          15       earlier this morning a point about not everyone who is

          16       before the court having been a sub-postmaster or

          17       sub-postmistresses, and you mentioned that specifically

          18       in relation to which contract may have governed the

          19       terms and conditions of (Inaudible).

          20           Subject to the contract point, is there any material

          21       distinction in any of these cases based on the

          22       particular employment status of a particular

          23       (Inaudible)?

          24   MR ALTMAN:  Subject to the contract, my Lord, no.

          25   LORD JUSTICE HOLROYDE:  Yes.  Good, very helpful indeed.


           1       Thank you.

           2           Right, we will sit again at 2.00, please.

           3   (1.01 pm)

           4                    (The Luncheon Adjournment)

           5   (2.00 pm)

           6   LORD JUSTICE HOLROYDE:  Yes, Mr Altman.

           7   MR ALTMAN:  Can I invite the court, please to bundle A,

           8       tab 51, so if your bundles are (Inaudible), the last

           9       (Inaudible).

          10   LORD JUSTICE HOLROYDE:  Tab 41?

          11   MR ALTMAN:  51, my Lord.

          12   LORD JUSTICE HOLROYDE:  51.  Yes.

          13   MR ALTMAN:  Mr Moloney's skeleton argument on behalf of the

          14       appellants he represents.  May I invite attention to

          15       page 1896, which is paragraph 3(g).  Among the points

          16       there made is the enduring nature of the conduct by

          17       which the 26 cases have been conceded on the basis of on

          18       the basis of ground 1, argues Mr Moloney, is a palpable

          19       factor; in the situation before the court it is a very

          20       (Inaudible).  It doesn't represent a single incident of

          21       finding balanced law enforcement, for example.

          22           Then two pages on, at 1898, where Mr Moloney deals

          23       with the concessions, at 4(d), on page 1898:

          24           "Moreover it is submitted that the facts which have

          25       founded the grounds and concessions should not be


           1       treated as representing the worst of the respondent's

           2       conduct in the context of whether the grounds were made

           3       out in relation to the other appellants."

           4           It is, may I observe, understandable that Mr Moloney

           5       highlights what he calls the enduring nature of the

           6       conduct, and the fact of the respondent's concessions on

           7       limb 1 of the process.  We submit it would be

           8       problematic and not in the interests of justice to

           9       equate those concessions with an enduring globally

          10       applicable limb 2 of the process.

          11           The concessions, as the court would expect, were

          12       arrived at following extensive and careful consideration

          13       of the facts in the cases in which they were made.

          14       Indeed it is for that very reason that while concessions

          15       were linked to limb 1 abuse of process in all but three

          16       cases on the facts, concessions on limb 2 have been made

          17       case specifically only in four, which happen to be

          18       Mr Moloney's clients.

          19           While these failings endured, in the sense that they

          20       lasted a great deal of time, if, given its reliance on

          21       Fujitsu, as I are said before, Post Office reasonably

          22       assumed Horizon was robust, whether and, if so, when it

          23       was no longer reasonable to assume so, it was not

          24       capable of simple identification without

          25       an investigation of and potentially evidence from,


           1       a number of people from different parts of the

           2       Post Office's business, as well as Fujitsu.  We do not

           3       suggest, I make it clear, that should happen, but we

           4       suggest that is the position.

           5           It is submitted that the inherent danger of adopting

           6       the global approach on these cases mean that without

           7       case fact sensitive analysis, with relevant factors of

           8       balance for the court to exercise its judgment and its

           9       discretion, unfairness and indeed injustice could

          10       result.

          11           What does the balance include?

          12           It includes, we suggest, factors such as the time

          13       period in which the alleged offence or offences took

          14       place.  The nature of the offence, its frequency and

          15       duration, the version of Horizon involved.  As I said

          16       a little earlier, one version being less robust than the

          17       other, in the way that Mr Justice Fraser defined it in

          18       the Horizon judgment, at paragraphs 36 and onwards.

          19           The individual facts underlying the alleged offence

          20       or offences.  Was there a confession to wrongdoing

          21       before any previous (Inaudible)?  And the direct and

          22       indirect impact of the failures of the investigation and

          23       disclosure on the case.

          24           All, we suggest -- and these are not proscriptive or

          25       exclusive, but all are relevant factors to go into the


           1       balance.

           2           Again, the referred cases range from 2001 to 2013.

           3       What may appear to be a tenable argument for limb 2 in

           4       a case in, say, 2010 or after, based on the information

           5       then available to individuals within the security and

           6       prosecution teams, may not be such a tenable argument

           7       for a case that was prosecuted nine years before, in

           8       2001.

           9           Thus the individual cases we emphasise are not

          10       simply fact sensitive; they are also time sensitive.  We

          11       submit that reliance on Horizon of itself was not unfair

          12       and it doesn't mean that the respondent should no longer

          13       be prosecuted because the combined failures of

          14       investigation and disclosure that render the convictions

          15       for limb 1 abuse of process, where the prosecution and

          16       conviction were dependent on the reliability of Horizon

          17       data.

          18           Also, we submit, and we don't complain about,

          19       reliance on a disparate array of documentation taken

          20       from the post-convictions disclosure exercise does not

          21       provide any safe picture on which to find the presence

          22       of limb 2 abuse in every case prosecuted by the

          23       Post Office between 2001 and 2013.

          24           The difficulty is that even where a document is

          25       relied on, which presents an adverse picture of the


           1       individual who wrote it, that doesn't mean that every

           2       other prosecution (Inaudible) and opinion by others

           3       within the organisation over the years, as I said

           4       a little earlier, subscribe to the same view.

           5           If it is the one and only example of such conduct,

           6       then it is difficult to see how it can be applied to

           7       everyone and even more difficult to see how it can be

           8       applied to events before the document was ever written.

           9           May we take just a few examples, documentary

          10       examples, to highlight the issues?  The court might have

          11       in mind why caution is needed before reliance is placed

          12       upon them.

          13           At paragraph 9(a) of Mr Moloney's document, at

          14       page 1901, which you had open at tab 41, you will find

          15       there reference to something Mr Moloney made some

          16       submissions about yesterday because of our particular

          17       response to it.  An expressed preference of Post Office

          18       to pursue criminal charges which would more easily

          19       achieve a confiscation order:

          20           "This was consistent with asset recovery being the

          21       dominant factor in decision making."

          22           Let's look at the memo itself, because I don't think

          23       the court has seen it.  It is in the first volume of

          24       bundle C, behind the first tab, at page 1.  It is dated

          25       8 February 2006.  You will see that the defendant is


           1       cited, at page A/322, it is not the number of the

           2       appellant.  The above named appeared at a Magistrates'

           3       Court on 23 January:

           4           "John Glove(?) of our agents attended.  Counsel

           5       appeared for defendant.  The defendant has offered

           6       an original basis of plea indicating that he is prepared

           7       to plead guilty to five of the seven accounts, namely

           8       the false accounting charges.  Also willing to pay the

           9       outstanding sum by monthly instalments of £2,000 per

          10       year."

          11           Skating over the next paragraph:

          12           "The pleas in effect opened the question as to

          13       whether or not we wish to proceed with these specific

          14       proceeds of crime offences, in particular charge 4

          15       brought under section 328, in other words ...(Reading to

          16       the words)...  The advantage of this offence is that it

          17       automatically brings the defendant into the recognition

          18       of criminal lifestyle under section 75(2) of the Act.

          19       If the pleas of false accounting were accepted, then

          20       they would need to make applications for the defendants

          21       and submit to the Crown Court under section 70 of the

          22       Proceeds of Crime Act ..."

          23           Et cetera, et cetera.  Over the page:

          24           "There are more hurdles to jump through than under

          25       the section 328 offence."


           1           Now, set against the submission which is made in

           2       Mr Moloney's document, one may have thought that what

           3       was being said there was improper.

           4           In fact, this defendant was not only charged with

           5       five offences of false accounting, but also two offences

           6       under the Proceeds of Crime Act.  Ms McFarlane, the

           7       lawyer who is the author of this document, raised the

           8       issue, as you can see.  The issue was one of

           9       acceptability of the plea, not about whether the

          10       individual should be charged or improperly looking only

          11       at the asset recovery outcome as influencing the

          12       decision whether to charge or not.

          13           At the time of the memorandum in 2006, it was the

          14       fifth edition of the Code for Crown Prosecutors, the

          15       2004 edition, which was in force, accepting guilty pleas

          16       which is dealt with at section 10 of the code.

          17           Section 10.5 of the code provided:

          18           "When guilty pleas are offered, Crown prosecutors

          19       must bear in mind the fact that ...(Reading to the

          20       words)... offers can be made with some offences, but not

          21       with others."

          22           Perhaps I don't need to remind your Lordship,

          23       my Lord, Lord Holroyde, about the case of Condon(?) and

          24       what you had to say in that court and in that judgment.

          25       You made plain the distinction must be drawn -- this is


           1       in bundle B, at tab 29.  We need not look at it --

           2       between the legitimate consideration in confiscation

           3       proceedings and prosecution being improperly motivated

           4       by the prospect of financial gain:

           5           " ... falls within the former category.  It is

           6       implicit in the 2004 code, by reference to ancillary

           7       orders, that it was appropriate, indeed mandatory, for

           8       a prosecutor to have regard to the court's ability to

           9       make a confiscation order when deciding whether to

          10       accept pleas."

          11           Section 5.9(b) of the same code also made explicit

          12       reference to confiscation as a relevant factor to the

          13       assessment of whether a prosecution was in the public

          14       interest as part of the (Inaudible) test.

          15           So, quite simply, what we say is a criticism based

          16       on this document is, with respect to Mr Moloney,

          17       completely misplaced.  She was talking about the

          18       acceptability of pleas being offered vis-a-vis the

          19       possibility of confiscation.  It was about the

          20       acceptability of the plea, not about the charging

          21       decision.

          22           Another example, returning to Mr Moloney's document

          23       at 1902, behind tab --

          24   MR JUSTICE PICKEN:  Mr Altman, sorry, just the last

          25       paragraph of this memo, do you place reliance on that as


           1       demonstrating that -- I think it is saying that even

           2       going on the basis of plea, in other words the plea of

           3       guilty to five of the seven, there is still an ability

           4       to proceed under the Proceeds of Crime Act by taking the

           5       case to the Crown Court?

           6   MR ALTMAN:  Yes, she was weighing up the difficulties and

           7       what any prosecutor would do.

           8           I mean, I would suggest that if one saw this with

           9       the CPS logo at the top of the letter, one would not bat

          10       an eyelid.

          11   MR JUSTICE PICKEN:  The short point is, even acceptance of

          12       guilty pleas for 5 of the 7, without the Proceeds of

          13       Crime Act offences, would still enable there to be

          14       a recovery of proceeds.

          15   MR ALTMAN:  Yes, it's just a different process.  Yes.

          16   MR JUSTICE PICKEN:  Thank you.

          17   MR ALTMAN:  Paragraph 9(e) of Mr Moloney's document, at

          18       1902, behind the tab (Inaudible), we come back to --

          19       I think I mistakenly referred to this document as

          20       Mr Moloney referring to it yesterday, when in fact it is

          21       the document I am coming to, where he says, at

          22       subparagraph (e):

          23           "There was reference within the disclosure to

          24       the prosecution being or not being closing the 'business

          25       interest' of the Post Office.  There is no apparent


           1       lawful basis on which the respondent could have decided

           2       to prosecute individuals based upon their own business

           3       interests."

           4           The document is to be found at page 49 of the same

           5       volume at bundle C, tab 6.  We find, at page 49,

           6       an email from Jarnail Singh, who was the Post Office

           7       in-house lawyer.  It is sent on 10 December 2012 to

           8       Martin Smith, Martin Smith was a solicitor at

           9       Cartwright King, and copied to Sharon Jennings(?), who,

          10       if my memory serves me, I think was in-house

          11       Post Office, but I may be wrong.

          12           You will see the subject is ciphers B038, not one of

          13       the appellants before the court.  Martin -- John Scott

          14       was the decision maker, concur with counsel, Will

          15       Martin's advice that it is not in the (Inaudible)

          16       interest or public interest to proceed with the

          17       prosecution of ...

          18           "Martin could you write to the defence and the court

          19       of the business decision and have the case listed for

          20       a short hearing where prosecution counsel should be

          21       instructed.  But this agreed action must say to the

          22       defence in court is not connected with the Horizon

          23       system integrity and rather simply reflects the

          24       defendant's health and associated issues."

          25           The document is relied upon not for the final


           1       (Inaudible) and what the email says, although

           2       I recognise that should never have been suggested.  But

           3       it is in relation to what was originally granted as

           4       a business interest decision.  Whereas the document

           5       itself shows that it was Mr Singh suggesting it was not

           6       in the interests of the business, in other words

           7       Post Office, or the public interest to proceed.

           8           We have made clear before you that this, we submit,

           9       was not about a commercial decision whether or not to

          10       prosecute.  The business of the Post Office was not to

          11       prosecute, but rather, as we know, to operate branches

          12       and offer the range of services it did.  Post Office

          13       prosecutions were a facet of that business.  Its

          14       prosecution decisions were made under the Crown

          15       Prosecution Code for Crown Prosecutors.  It was proper

          16       under the full code test to take the business'

          17       interests, that is Post Office's interests, into account

          18       as part of the public interest considerations in the

          19       second stage of the test, as is evident in that

          20       document.

          21           To extrapolate from it, or indeed from any similar

          22       document, that prosecutorial decisions were motived by

          23       financial interests or were at the heart, as was said,

          24       of its decision making is just not justified.  Indeed,

          25       if that allegation were right, the court would expect to


           1       have been invited to consider more than just this one

           2       document, or an extract, as happened yesterday, from

           3       some board minutes from 2012, which albeit triumphal,

           4       you will remember, about winning more Horizon cases is

           5       nothing to do with financial interests.

           6           A third and final sample document I invite the

           7       court --

           8   MR JUSTICE PICKEN:  Mr Altman, I am so sorry, again.  If

           9       this was a CPS document rather than a Post Office

          10       document, it wouldn't say, would it, "it is not in the

          11       CPS interest" or public interest; it would just say

          12       public interest?

          13   MR ALTMAN:  But because this a private prosecution, the

          14       private prosecutor was fully entitled to have his own

          15       interest taken into account.

          16           Where it becomes problematic is if that decision

          17       making is based on improper or collateral motives.  What

          18       I am saying is this document is not evidence of Mr Singh

          19       taking account (Inaudible).

          20   MR JUSTICE PICKEN:  Thank you.

          21   LORD JUSTICE HOLROYDE:  Really your submission, Mr Altman,

          22       is in the first line.  It should be read as:

          23           "Not in the interest of the complainant or in the

          24       public interest."

          25   MR ALTMAN:  Absolutely.  As your Lordship will be well


           1       aware, and as the court will be well aware, the

           2       (Inaudible) itself is obliged to take account of the

           3       victim's interests.

           4           The final (Inaudible) in the series, just a soupcon

           5       perhaps of what there is, is one that's referred to by

           6       Mr Moloney, paragraph 68(i) of the speaking note which

           7       you were handed yesterday.  Perhaps the easiest thing is

           8       simply to take you to a document so you can see

           9       reasonably what it is.  It is divider 13 in bundle C, at

          10       page 106.

          11           What Mr Moloney said yesterday about this

          12       document -- which I will come to in a second -- is --

          13       and you will remember the phraseology:

          14           "On many, many occasions an attitude of resistance

          15       to such investigation was evidenced, they conclude ..."

          16           Here is the reference to this document:

          17           "A suggestion to a defendant's solicitor that the

          18       service of ARQ data and records of phone calls to the

          19       help desk where Horizon's integrity was (Inaudible)

          20       'expensive', and that provision of it might be

          21       'a complete waste of time and money', because other

          22       sub-postmasters in the past have pleaded guilty,

          23       pointing out that 'the provision of data by Fujitsu is

          24       not good service'.  The letter states that the

          25       Post Office will only pay for provisional updates of


           1       which they consider to be relevant."

           2             The letter is dated 14 August 2009, the individual

           3       is ciphered here as A028.  I am sure Ms Busch will not

           4       mind if I say that A028 was Seema Misra.  This was the

           5       letter which went to her first solicitors, The Castle

           6       Partnership, and it is right that I should go through

           7       it.

           8           "I understand [says the author] ... in the criminal

           9       law division from the prosecuting counsel on the last

          10       occasion ...(Reading to the words)... and the

          11       Post Office has purchased this system from Fujitsu in

          12       the same way that any other company would purchase goods

          13       or services for its business.  Other than that Fujitsu

          14       is not in any way an associated company of the Post

          15       Office.  The request -- and I think this was a request,

          16       I think I am right in saying, for about two and a half

          17       years' worth of ARQ data -- has been put to Fujitsu and

          18       replied to and received by the person who liaises with

          19       this company.  The data will take some six to eight

          20       weeks to produce.  Additionally, your client made 107

          21       calls to the Horizon help desk during her period of

          22       tenure, which is placing roughly two to three calls

          23       a month.  In order to provide the data, Fujitsu will

          24       wish to know exactly what is required and for exactly

          25       what period."


           1           Pausing there, this is not an outright refusal, it

           2       is initially a request to find out what data is actually

           3       required:

           4           "Please could you also advise as to why you consider

           5       the data relevant?  You already have the notice of

           6       additional evidence ...(Reading to the words)... Fujitsu

           7       dealing with calls to the helpline."

           8           Then this:

           9           "The retrieval of data by Fujitsu is not a free

          10       service.  It is very expensive and depends upon the

          11       amount of data which has to be retrieved, which is why

          12       you are requested to be very precise.  At that stage

          13       a firm quotation can be obtained and counsel will be

          14       asked to give further advice as to disclosure on payment

          15       for the service.  The Post Office went on to ...(Reading

          16       to the words)... that counsel considers the data

          17       irrelevant.  You will of course be aware that the same

          18       system operates around the country.  It is not

          19       applicable to all kinds of sub-Post Office.  I have set

          20       out the matter above quite clearly because in the past

          21       many thousands of pounds have been spent on obtaining

          22       this type of data subsequent to which a late plea of

          23       guilty is tendered, which means the exercise has been

          24       a complete waste of time and money."

          25           So, those were the circumstances in which that was


           1       said, and in view of the timescale these letters would

           2       now fall to apply.

           3           If I can simply ask the court to go back into tab 12

           4       in the same bundle, page 103, this is the second

           5       document that Mr Moloney refers to under

           6       paragraph 68(ii).  It is an email of 4 August, so

           7       10 days before the letter we were just looking at

           8       regarding the same case, Mrs Misra's case, from

           9       Dave Posner(?) (Inaudible) manager of the post office,

          10       to Jon Longman, Post Office Investigator:

          11           "Due to the size of the request, I can't authorise

          12       Fujitsu to proceed at this stage.  It equates to

          13       approximately 31 ...(Reading to the words)... we do

          14       assist where we can and where requests are reasonable in

          15       terms of our quota ... other parts of the business,

          16       small potential requests, for a number of potential

          17       requests ..."

          18           This is the part quoted in Mr Moloney's speaking

          19       note:

          20           "... we can take a quote from Fujitsu for the work,

          21       which will then sit outside our quota.  The defence can

          22       then (1) pay up, (2) seek Legal Aid and pay up

          23       ...(Reading to the words)... many cases plead guilty at

          24       the 11th hour and/or ... by experts and challenged ...

          25       the data ..."


           1           I'm not suggesting that at all, but the fact remains

           2       again -- and really this is just a cautionary

           3       submission -- that this is not a document to refuse the

           4       defence ARQ data, but rather a requirement in which

           5       (Inaudible) but the defence solicitor relied in greater

           6       specificity as to what data was requested and why, and

           7       indeed the matter was requested by the trial judge on

           8       a section 8 application, who agreed with prosecuting

           9       counsel, not that the updates should not be disclosed,

          10       but the ambit was far too wide.  Importantly, some ARQ

          11       data was indeed provided to the defence.  So, again, one

          12       simply submits that a little care has to be taken about

          13       how these documents were interpreted.

          14   LORD JUSTICE HOLROYDE:  I don't understand that, Mr Altman.

          15       The first couple of paragraphs mean --

          16   MR ALTMAN:  Of?

          17   LORD JUSTICE HOLROYDE:  Of this email.  If I have understood

          18       it correctly, the Post Office has chosen to enter into

          19       contractual terms with Fujitsu which impose a modest

          20       limit on the number of ARQs they can request, and that

          21       is an inhibition on disclosing material to the

          22       prosecution, which makes it necessary to consider

          23       everything on a case by case basis.

          24           Is that a fair picture?

          25   MR ALTMAN:  It is certainly not an unfair picture.  The


           1       Post Office, yes, the contract was in Fujitsu's favour

           2       in that regard, and the Post Office did have quotas,

           3       otherwise it cost a lot of money to get the ARQ data.

           4       But it doesn't mean at that say the Post Office didn't

           5       obtain the data, they did, but it was simply

           6       a recognition that there were other deserving cases.

           7       So, my understanding of the thrust of this email is that

           8       the quota system was a limitation and, in other words,

           9       it had to be dealt with fairly.

          10           In other words, rightly or wrongly, a request for

          11       two and a half years' worth of ARQ data was not

          12       reasonable.  To have ARQ data was reasonable and there

          13       was ARQ data served on the case of Mrs Misra but not two

          14       and a half years' worth.  That is the difference.

          15   LORD JUSTICE HOLROYDE:  The two and a half years was

          16       the period caught by the terms(?), wasn't it?

          17   MR ALTMAN:  I agree it was.

          18   LORD JUSTICE HOLROYDE:  And the period during which

          19       information requests for (Inaudible)?

          20   MR ALTMAN:  Yes, but we don't know what those requests are

          21       and they don't necessarily tell us that they were all in

          22       relation to shortfalls in her balance(?) accounts.

          23   LORD JUSTICE HOLROYDE:  Of course not, no.  Of course.

          24   MRS JUSTICE FARBEY:  Could I ask a question about comparing

          25       page 103, which we were just looking at, with 107, which


           1       we just looked at.

           2           On 103, it is signed by Dave Posner, (Inaudible)

           3       manager, it looks like on 4 August 2009, and then we

           4       have, at 106, 107, signed by Phil Sayer(?), from the

           5       criminal law division, from 14 August 2009, both of them

           6       seem to me -- do correct me if I have misunderstood --

           7       that the backdrop in Post Office's mind that if someone

           8       pleaded guilty at the 11th hour, the, hey, the whole

           9       disclosure process has been a bit of a waste of time.

          10       Is that a fact that operated on the mind of the

          11       Post Office?

          12   MR ALTMAN:  I can't say because I am not in the mind of the

          13       individuals who wrote these things.  You may be able to

          14       draw an inference but from my submission: what is

          15       actually been said is that there is a financial limit

          16       and a quota on these things, and in cases where, at that

          17       stage, people pleaded guilty having asked for ARQ data,

          18       which costs money, then all that is being suggested is,

          19       superficially at least, it looked like the money was

          20       wasted.  But one can read into that what my Lady

          21       suggests.

          22           But it is a harsh judgment to suggest that it was

          23       simply (Inaudible) reference the way Mr Moloney put it

          24       in his skeleton argument was merely a waste of time and

          25       money.  All that was being said is where people plead


           1       guilty at the last minute, that is the appearance of

           2       what is happening in terms of this disclosure.

           3           As Ms Johnson reminds me, it also depends on whether

           4       the individual may have voluntarily confessed to false

           5       accounting, for example, or to taking money from the

           6       till for whatever reason.  There will be a number of

           7       factors that would go to this.  Although the email was

           8       perhaps not felicitously worded, it is an internal

           9       email, it doesn't necessarily suggest that the

          10       disclosure process, insofar as ARQ data was concerned,

          11       was itself at fault.

          12           So, what we submit is that, in terms of these

          13       documents, care has to be taken before reading into them

          14       more than they in fact reveal.  Before concluding that

          15       they apply across the board to every prosecution

          16       thereafter, as I say, or even before they were created.

          17           Many documents upon which reliance is placed

          18       originate from cases which are not before the court, or

          19       they are generic in nature.  The only documents, as

          20       I have understood it, which Mr Moloney referred to in

          21       his original grounds of appeal on behalf of all of the

          22       clients he represents, and indeed his first skeleton

          23       argument on intuition, there was something like 26

          24       documents, six of which related to the Seema Misra case

          25       and one of which related to Jacqueline McDonald, who is


           1       one of Mr Moloney's clients.  As far as I was able to

           2       judge, none of the others case specifically referred to

           3       any of his clients.

           4           Can I please turn on to the appellant page, and just

           5       look at something that has been said on his behalf?  At

           6       tab 48 of bundle A, page 1856, and it is Mr Saxby's

           7       ground two skeleton argument.  At page 1858 --

           8   LORD JUSTICE HOLROYDE:  Sorry, which bundle are we in?

           9   MR ALTMAN:  File A, my Lord.  Bundle A, tab 48.

          10   LORD JUSTICE HOLROYDE:  You have to bear with me, Mr Altman.

          11       Right, A/48.

          12   MR ALTMAN:  Tab 48.  Page 1858.

          13   LORD JUSTICE HOLROYDE:  Yes.

          14   MR ALTMAN:  What Mr Saxby argues on behalf of Mr Page is:

          15           "The role of the Post Office as a private prosecutor

          16       is an important consideration in the determination of

          17       ground 2.  Post Office acted as victim, investigator,

          18       and prosecutor.  It may also be noted that upon

          19       conviction the Post Office would stand to materially

          20       benefit from confiscation proceedings.  Although in the

          21       case of this appellant ...(Reading to the words)...

          22       presumably on account of him losing his business and the

          23       resultant bankruptcy.  The Post Office also stood to

          24       gain from a convicted defendant's loss of their

          25       business."


           1           It continues into paragraph 11:

           2           "The overarching theme of the Post Office's approach

           3       in prosecuting seems to have had at its heart a desire

           4       to preserve false confidence in its own Horizon system,

           5       even if that would contribute to the mismanagement of

           6       justice."

           7           Well, I have made submissions about that kind of

           8       submission earlier, I'm not going to repeat.

           9           The important point is, in Mr Page's case, no

          10       reference is made to any evidence, certainly not in his

          11       own case, that Post Offices instigation of his

          12       prosecution was improperly motivated or influenced by

          13       the prospect of financial benefit.  As Mr Saxby himself

          14       points out, there was no order for costs or compensation

          15       given Mr Page's financial position.

          16           So, my Lord, that is all I am going to say on the

          17       bulk of submissions we heard.

          18           Could I return, as I said I would yesterday evening,

          19       to some comments that were made yesterday.

          20           In submissions Mr Moloney indicated that the number

          21       of prosecutions by the Post Office went from two or

          22       three a year prior to Horizon, up to 14 to 50 after

          23       Horizon's introduction, and that was in response to

          24       a question from Mr Justice Picken on the issue of scale.

          25           Overnight, those in the back office, as it were,


           1       have been busy, by which I mean Peters & Peters poring

           2       over all the material they have to provide the court

           3       with some figures.

           4           In 1996, there were 11 prosecutions of

           5       sub-postmasters; in 1997, 22; in 1998, 41.  None of

           6       those could have relied on Horizon.

           7           The only gap in information is what we cannot say,

           8       whether they were based on discrepancies or shortfalls.

           9           In 1999, there were 60 in total.  It is not believed

          10       that any were Horizon based.

          11           In 2000, once roll out had started, there were six

          12       prosecutions; in 2001, 41; in 2002, 64; in 2003, there

          13       were 56.

          14           I am going to take it all the way to 2013, just to

          15       manage your expectations, my Lord.

          16           In 2004, 59; 2005, 68; 2006, 69; 2007, 50; 2008, 48;

          17       2009, 70; 2010, 55; 2011, 44; 2012, 50.  Finally, 2013,

          18       56.

          19           So, what is clear is that there was an increase in

          20       the number of prosecutions after the introduction of

          21       Horizon.

          22           However, that is not to say that the increase in the

          23       number of prosecutions of sub-postmasters would or

          24       should necessarily have put Post Office on notice of

          25       problems with Horizon.  One of the advantages of


           1       Horizon, from the Post Office's perspective, is that it

           2       facilitated better detection of theft or fraud and

           3       therefore there was almost an inbuilt idea that it was

           4       bound to detect more than a paper basis would have done.

           5           The Post Office might have expected the digitisation

           6       of branch accounts would inevitably lead to an increase

           7       in the detection and therefore prosecution for the

           8       charges alleged of fraudulent conduct.

           9   LORD JUSTICE HOLROYDE:  Can I just check, Mr Altman, in case

          10       I misheard, that the year 2000, did you say 6?

          11   MR ALTMAN:  I did.

          12   LORD JUSTICE HOLROYDE:  And the year 2012?

          13   MR ALTMAN:  50.

          14   LORD JUSTICE HOLROYDE:  Right.  I heard that as 15, but that

          15       was 50.

          16   MR ALTMAN:  My fault, I should have enunciated it better.

          17   LORD JUSTICE HOLROYDE:  Anything you want to say about the

          18       position in 2000?

          19   MR ALTMAN:  There is nothing I can say.  That is the figure

          20       that we have.  I don't understand why -- well, I am not

          21       going to speculate.

          22           In response to the suggestion that the number of

          23       prosecutions is or would have been striking, in the

          24       context of sub-postmasters who were recruited for their

          25       trustworthiness, we respectfully suggest it should be