This is the unperfected transcript from Court 4:
1 Thursday, 25 March 2021
2 (10.30 am)
3 LORD JUSTICE HOLROYDE: Mr Stein.
4 Submissions by MR STEIN
5 MR STEIN: My Lord, yesterday, I was asked two questions
6 concerning Ms Lock's position. One was regarding monies
7 received. May I say that Ms Lock and Mr Orrett are
8 still looking into that matter.
9 LORD JUSTICE HOLROYDE: Yes.
10 MR STEIN: The second question concerned calls to the
11 helpline and as you will recall, it was some time ago,
12 I am afraid, for Ms Lock, and she cannot recall details
13 of calls.
14 LORD JUSTICE HOLROYDE: No. All right, thank you very much.
15 MR STEIN: One last matter, that I have been asked to make
16 clear and I do, I referred yesterday, forgive me for
17 turning sideways, I referred yesterday to the generic
18 disclosure extracts to an extract which appears at 780
19 and concerned A O48. I have been asked to make clear
20 and I'm happy to do so, that that is an appeal from the
21 Magistrates' Court to the Crown Court that has not yet
22 been decided in terms of the decision made by the
23 Post Office.
24 LORD JUSTICE HOLROYDE: Right, thank you.
25 I don't think -- nothing was said yesterday which
1 could identify that page to case to anyone who doesn't
2 know all the ciphers already.
3 MR STEIN: Yes, my Lord.
4 LORD JUSTICE HOLROYDE: Right.
5 MR STEIN: My Lord, we turn then, this morning, to
6 Stanley Fell, aged 69 now. My Lord has a speaking note
7 that we have provided to the court and to the
8 Post Office and my learned friends, of course.
9 That largely sets out our submissions. Can I flesh
10 it out, as far as that would assist the court overall?
11 LORD JUSTICE HOLROYDE: Yes.
12 MR STEIN: My Lord has heard on a number of occasions that
13 I have referred in our opening submissions, general
14 submissions and individual submissions yesterday, to the
15 generic evidence review. Whilst not going back into
16 that again, I pray in aid the remarks made by those
17 individuals over so long a period of time, because they
18 demonstrate the position that Mr Fell was in, as were so
19 many others. "I don't know what is going on, I can't
20 explain the losses, I don't understand what is happening
21 with the Horizon system, it is a mystery", people
22 panicking, people clearly making decisions they wouldn't
23 have done in other circumstances, contrary to positive
24 good character.
25 That is one of the fundamental reasons why I have
1 repeatedly referred to that review, as it provides
2 supporting evidence to the points decided by
3 Mr Justice Fraser, that these individuals, the
4 sub-postmasters, were in a position whereby, without the
5 information being provided during the course of their
6 duties that there were problems with Horizon, with the
7 unequal business relationship with Horizon, they were
8 left in circumstances whereby they didn't know what to
9 do. Decision making was poor, they fell into error.
10 So we have many cases within this litigation whereby
11 people were false accounting, essentially, because of
12 the problems that they were in. So that is a background
13 matter that I do ask you to consider.
14 One fact we haven't looked at in any detail, decided
15 by Mr Justice Fraser, again emphasis on the problem that
16 was confronted by SPMs. If you wish to go to it, it is
17 within the judgments of Mr Justice Fraser, number 3. It
18 happens to be at page 404 of the bundle. The paragraph
19 number within the judgment is 1117. It just provides
20 evidence on the difficulties that the postmasters were
21 in, versus the Post Office. Suspended postmasters were
22 not paid for their period of suspension, but in order to
23 keep their branches open, had to pay temporary SPMs to
24 run them. Even if reinstated, they had no right to be
25 paid for remuneration for their period of suspension.
1 I mention that only, yet again, to provide emphasis
2 on the unequal business, bargaining, contract, that
3 these individuals were in.
4 So with that background overall submission, as
5 my Lord, you know, Mr Fell was a third generation Fell
6 working for the Post Office and he took, undertook, the
7 contract at the Newton Bergoland Post Office, a small
8 village, from 1976, until his suspension in 2006.
9 There had been no problems, no difficulties until
10 after Horizon was installed. My Lord, as so many others
11 who present their appeals before this court, Mr Fell was
12 a highly regarded member of the local community. The
13 character references that were supplied on his behalf
14 before the court, on his conviction by his own plea,
15 spoke incredibly highly of him as both a mainstay of the
16 community, a real support for those who were infirm or
17 of age.
18 We submit that Mr Fell falls into the category of
19 individuals, where, though there were unexplained
20 losses, I will explain that in a little bit more detail
21 in a moment, whereby his prosecution was at a time, as
22 all other appellants, whereby there was no system of
23 disclosure, or no system of disclosure that could
24 properly be described as such, established in order to
25 prosecute any individual. Without repeating all of the
1 arguments therefore, we suggest that he falls within the
2 overall categories of abuse in terms of abuse 2, limb 2.
3 It is an affront to justice he is prosecuted in these
4 terms and as regards limb 1, which as, my Lord, you are
5 aware, this is not a conceded case by the Post Office,
6 and we say that the denial of a proper system of
7 disclosure had an effect in his particular case.
8 My Lord, we have set out a legal framework within
9 the speaking note. I have referred at earlier times
10 within these appeals to the fact that, even in
11 circumstances where there is a plea of guilty, the
12 overall position in law is that, if there is material
13 that could lead or might lead within the terms of the
14 CPIA to an application to stay proceedings, that
15 material must be disclosed and an individual in any such
16 circumstances might well find themselves in a situation
17 whereby they can apply for a stay of proceedings.
18 MR JUSTICE PICKEN: Can I just ask you, is your primary
19 purpose in addressing Mr Felstead abuse ground limb 1 or
20 is it limb 1 and 2 -- I anticipate it is limb 2 as well
21 but is your primary focus limb 1?
22 MR STEIN: My Lord, if I were to say one is more preferable
23 than the other, then it might undermine an argument.
24 What we say is he is entitled to both. The overall
25 abuse is the affront to justice level of abuse, that he
1 was in that position, and I don't need to argue any
2 further, we have dealt with those arguments over the
3 last days, so for these purposes, perhaps the best
4 answer I can provide is that I am mainly addressing for
5 these purposes, limb 1.
6 MR JUSTICE PICKEN: That is fine.
7 MR STEIN: I don't want to undermine that by suggesting that
8 one is preferable to the other.
9 LORD JUSTICE HOLROYDE: Logically, I suppose, the starting
10 point is raised by the respondents in argument, "Is this
11 really a Horizon case at all"; that is the logical
12 starting point.
13 MR STEIN: Exactly. The respondents argue that here is
14 a gentleman that on the visit by Ms Bailey on an audit,
15 after an important point, after essentially, Mr Fell had
16 called attention to his own Post Office by making
17 repeated remarks and complaints about the numbers not
18 matching up, the Post Office decided, via Ms Bailey, to
19 visit and then he made the point that I am sure will be
20 made by Mr Altman, then he made admissions from that
21 point onwards and those admissions, to complete the
22 point no doubt being made by Mr Altman later on, were
23 then carried through into the basis of plea and through
24 a voluntary interview process.
25 So I don't want to steal Mr Altman's thunder but
1 that is, essentially, no doubt going to be the
2 respondent's points.
3 So we have dealt with the fact that it was at a time
4 whereby there was no or no adequate system of
5 disclosure. We have asked the court to take note of the
6 fact that, despite what is going to be said, that this
7 is not a Horizon case, this was a case whereby in the
8 statement of Penelope Thomas, dated 2 March 2007, that
9 that contained the standard declaration that everything
10 is okay with the system -- my paraphrase, not the exact
12 There is no evidence, and there was no evidence that
13 Mr Fell was living the high life. There was no
14 lifestyle evidence. There was no evidence before the
15 court or at this stage, or at any stage, that there was
16 unexplained sums of money, either in actual cash terms,
17 if you like, or going into bank accounts. So no other,
18 outside of the case, if you like, supporting evidence of
19 particular types of cars or similar.
20 In terms of disclosure, this was at a time whereby,
21 whilst there had been, perhaps, some questions raised
22 regarding Horizon, it is at an early time. We are not
23 into 2010s, we are not into the period of time beyond
24 that, whereby the general discussion about the
25 reliability of Horizon was there. This is a slightly
1 earlier time for Mr Fell. It provides a point in
2 support because it means that he wouldn't necessarily
3 have known that here is an answer to his particular
5 Now, we know from the CCRC review of this particular
6 case, set out at paragraph 15 of our speaking note at
7 page four, that the CCRC took into account at a later
8 stage -- again, no doubt, a point going to be made by my
9 learned friend -- that Mr Fell explained that he had
10 been using shop money to balance unexplained Horizon
11 losses. So this is a Post Office, it is the typical
12 rural Post Office, that frankly, I grew up with as well,
13 that has the grocery shop and Post Office next door to
14 it, all in one business, so what was being said there
15 and accepted by the CCRC in terms of the referral, is
16 that there were two parts of it and that Mr Fell had
17 explained then.
18 That, of course, will be shown by my learned friend
19 or said by my learned friend that that is later on --
20 that will be a point that will be raised. I will attack
21 that in a moment but can I then look at the facts in
23 The Horizon system was installed in 2001. Mr Fell
24 did not find this a natural transition. He found the
25 course difficult and required support thereafter. He
1 had assistance, therefore, in running the system and it
2 wasn't easy. Can I take you then now, please, to bundle
3 E, page 98. We are going to look at a point that
4 concerns discrepancies. To understand this point, we
5 need to bear in mind that one part of Mr Fell's case
6 concerns the fact that to support the grocery business,
7 it had entered into a contract with a supplier called
8 First Choice, that required a certain amount of stock
9 being turned over per month, if I've got that right.
10 That was explained by him as being, therefore, the
11 reason why there was, as he put it at that time, the
12 money being taken from the Post Office.
13 So it is important to remember that point and the
14 description of the timing of that was set out by him in
15 the basis of plea as being towards the end of 2004,
16 beginning of 2005. So if we hold those dates in mind,
17 end of 2004 and beginning of 2005, that is the First
18 Choice contract and now, if we can, please, turn to
19 page 98, bundle E.
20 As we will see when we look at paragraph 2.1, the
21 description there is the shortfall that was identified
22 during the audit. The second point at 2.2:
23 "Both parties recognise that the appellant [as
24 I call him, obviously, for these purposes -- the
25 applicant at that stage] had reported and made good
1 discrepancies on four occasions between late 2005
2 and December 2006, aggregating to £1,110 and some
4 I think 87p.
5 It is an important point. The reason why it is
6 important is that the respondents are going to say that
7 the only description made by Mr Fell of both sides of
8 the business having difficulties, in other words, having
9 to use money from one side to pay for Horizon and the
10 other side to pay for the grocery business, the only
11 time that that comes up in the respondent's submissions
12 is going to be post, in other words after conviction,
13 when matters then go to be considered at a later stage.
14 What we have here though, is important. This is
15 after the First Choice contract comes into play, this is
16 what, on the face of it, appears to be Mr Fell making
17 good discrepancies on four occasions, between dates that
18 are after the contract comes into play. As far as we
19 know, this is not material that was available to the
20 legal team instructed on behalf of Mr Fell. Now, that
21 could come from two different sources. It could have
22 come from, as an example, Mr Fell saying to his legal
23 team "Just so you know, what has been happening is that
24 I have been balancing out what appear to be these
25 discrepancies on four occasions from my own pocket,
1 essentially the other side of the business." That is
2 one source. The other source, by way of disclosure,
3 would have been from the Post Office, in setting out
4 back accounting whereby that had been made out.
5 It is difficult to know at what stage this was
6 known. The point we make is that Mr Fell, like so many
7 others, working in this unequal contract term situation
8 with the Post Office, is not necessarily going to know
9 what is in his own interest to tell his own lawyers at
10 any particular time. Confused, frightened, not knowing
11 what is relevant. This evidence provides an insight
12 into what may well have been going on, we suggest,
13 within the Post Office, in other words, that this was at
14 a time whereby it is the first iteration of Horizon, the
15 worst iteration of Horizon, as found by
16 Mr Justice Fraser, slightly worse than Horizon 2; it was
17 at a time whereby there were bugs, it is at a time
18 whereby the respondents accept that bugs could cause
19 significant unexplained losses to individuals.
20 LORD JUSTICE HOLROYDE: I just want to -- sorry to interrupt
21 you, Mr Stein, I just want to make sure I've got the
22 dates right. At paragraph 2.2, on page 98, it seems to
23 have been common ground that the making good of the
24 discrepancies disappeared between late 05
25 and December 06, but the indictment period is 1 June to
1 24 October 2006.
2 MR STEIN: I am aware of that. I have looked at that myself
3 and considered whether that quite can be right, because
4 it is a December point, after the suspension would have
5 come into play.
6 LORD JUSTICE HOLROYDE: It has to go to the oral disclosure
7 evidence, and if those dates are right, then I suppose
8 the immediate question would be, should the 195-8304 on
9 the indictment be plus or minus the 1110.87 in
10 paragraph 2.2.
11 MR STEIN: It does go to that and it goes to the next point
12 I wish to make. One of the difficulties we have got
13 with Mr Fell's case that I have had to concede at
14 an earlier hearing is we don't have the Horizon material
15 available. This is not a case, whereby as I understand,
16 later on today, you will be hearing from an expert in
17 relation to an analysis of Horizon. That could not be
18 done in Mr Fell's case. So we have now no way of
19 backtracking into it to consider, actually, what was
20 happening. Which has led in my mind to a rather
21 interesting circular problem which is that, now before
22 this court, we are left in a position whereby this court
23 is prevented, through the many years of denials of
24 problems in the Horizon system and the ignoring of that
25 by the Post Office, we are now left at an appeal level
1 with an inability to reconstruct what was happening at
2 the time. The very fact of the delays in recognising
3 that Horizon had faults and the denial of it, actually
4 now causes us a problem in looking at what, in different
5 circumstances, might have been an appeal maybe a year or
6 two later, if that had been available to Mr Fell, where
7 material might have existed that we could have got to
8 the bottom of this.
9 So a knock-on effect, in other words, of not saying
10 there is a problem with Horizon, in denying that for so
11 many years, has meant that this court and ourselves on
12 his behalf, cannot look into these issues.
13 One further point arising out of this particular
14 document that may assist this court, it perhaps is of
15 the same type as I have explained before, that Mr Fell
16 found the training difficult, that this was not easy for
17 him, when starting off with Horizon. Page 102, bundle
18 E, please.
19 Paragraph 5.7 -- sorry, it is page 102.
20 Paragraph 5.7:
21 "The applicant complains that when he called the
22 helpline, which he said he did frequently, he was often
23 kept hanging for long time periods and he describes the
24 advice eventually given as impossible to understand."
25 Again, you will see why I have been referring to the
1 generic review. This is not an uncommon problem. He
2 states that the advice given "sometimes contradicted
3 advice given by other helpline operatives and [he] was
4 frequently reminded that if he was unable to balance,
5 his contract was at risk."
6 Again, a comment made by others and also referred to
7 in the High Court proceedings. What evidence is there
8 that supports the frequency of contact? 5.8 please,
9 page 103.
10 We see there -- forgive me one moment, I am just
11 checking a date.
12 We see there that in relation to Mr Fell, that the
13 appellant, applicant described here, made 721 calls to
14 the NBSC helpline from October 2000 to October 2016,
15 averaging 2.3 per week. It states that the NBSC call
16 logs indicate that helpline staff showed a willingness
17 to assist the applicant and it is reasonable to assume
18 that the advice given was satisfactory, as the applicant
19 did not make complaints about the helpline.
20 It then refers to the fact that there was no
21 evidence of helpline staff, just an absence of evidence
22 point, telling the applicant that his contract may be
23 terminated if he failed to find a solution to his
25 But 5.9 assists us a little further:
1 "Due to the limited nature of the helpline logs, it
2 is difficult to assess whether or not the advice given
3 satisfactorily addressed the applicant's problems. We
4 cannot find evidence of helpline staff advising the
5 applicant that his contract would be terminated if he
6 was unable to resolve errors."
7 Although it is reasonable to assume that comments
8 such as those may not be shown in the notes typed out by
9 the operatives.
10 LORD JUSTICE HOLROYDE: In other walks of life, Mr Stein, it
11 often seems impossible to make a banal telephone call
12 without being told it is being recorded for training
13 purposes. Do we know whether any of these helpline
14 calls were recorded for training purposes or otherwise?
15 MR STEIN: I will look into that or I could turn to Ms Carey
17 Yes, it is going to be checked, my Lord.
18 LORD JUSTICE HOLROYDE: Very kind, thank you.
19 MR STEIN: What we do know is that tends to support the fact
20 that Mr Fell was one of the individuals who found the
21 working of the system difficult, that he made repeated
22 calls during that time, over 100 a year, to the
24 Lastly, regarding the evidence that we have brought
25 before the court, we have added a particular note that
1 I now cannot find, which is set out behind the speaking
2 note bundle that we provided. It is an email from
3 Mr Warmington, who conducted the post conviction stage
4 review in relation to Mr Fell.
5 LORD JUSTICE HOLROYDE: Yes. We saw the reference to that
6 in the speaking note. Do you actually have a copy of it
8 MR STEIN: My Lord, you should. It is at the last page, we
9 hope, of the bundle that we provided with the speaking
11 So ...
12 LORD JUSTICE HOLROYDE: Thank you.
13 MR STEIN: The point that was made there is that it was down
14 as Mr Fell himself complaining to POL about the shortage
15 of cash. This is made by Mr Warmington in that review:
16 "He presumably didn't have enough cash to keep his
17 branch open and running is a pretty solid indicator that
18 he didn't know if he was running at a deficit."
19 What we suggest, therefore, are that there are
20 a number of indicators here that tend to show Mr Fell
21 had problems with running Horizon. There are questions
22 regarding what was going on with Horizon, whether it was
23 causing losses that he had to make up. We cannot now
24 answer because the material doesn't exist.
25 He, like so many others, found himself in a very
1 difficult position. We cannot expect people suddenly
2 thrust into a problem with the Post Office to
3 necessarily act logically and provide even his own legal
4 team, sometimes, with information that may help them,
5 particularly in the absence of disclosure.
6 So I revert back to my opening submissions. There
7 is some evidence here on which we suggest, if the
8 Post Office had been open and plain and accepted
9 problems with Horizon, that would have led Mr Fell and,
10 in particular, his legal team, to ask the questions:
11 what was going on within this Post Office? Were there
12 problems? Were there bugs? What were the difficulties
13 encountered by Mr Fell? And they could have asked those
14 questions both of the Post Office and also of Mr Fell.
15 When, on this side of the court, we are discussing
16 matters with our clients, it would help, essentially, if
17 we had some idea of the nature of the problems and we
18 all know that sometimes our clients are not able to help
19 us unless you put them on the right path through
20 material that you get from the prosecution and here,
21 there was a non-starter in relation to that.
22 So in no way do we criticise, blame or say there is
23 any fault from his legal team. They saw an individual
24 who appeared to be accepting from the word go, fault,
25 they gave him proper advice and he accepted that advice
1 and that led to the plea of guilty.
2 THE CLERK OF THE COURT: My Lord, may I make a final
3 announcement to ask that lady to turn her camera off.
4 LORD JUSTICE HOLROYDE: Yes, a lady has appeared visible on
5 screen. Somebody has not got a camera turned off. I am
6 afraid we don't know who it is but whoever it is has,
7 I think, a bright green item or possibly garment in
8 front of her.
9 I think she may just have identified herself. Would
10 you be kind enough to turn off the camera, madam. Thank
11 you very much.
12 THE CLERK OF THE COURT: Thank you, my Lord.
13 LORD JUSTICE HOLROYDE: Thank you Mr Mariani.
14 MR JUSTICE PICKEN: Mr Stein, can I just ask a question.
15 Could you go to the Second Sight report which you have
16 taken us to, page 100.
17 MR STEIN: Yes, my Lord.
18 MR JUSTICE PICKEN: And at 4.9, and then go to the top of
19 page 101, the same paragraph:
20 "The Post Office notes that the applicant pleaded
21 guilty to false accounting in court and a letter from
22 his legal representatives states that he had always
23 accepted that he was guilty of false accounting by way
24 of creating false records to disguise the monetary loss
25 caused as a result of his taking funds to keep his post
1 office afloat."
2 Have we actually got that letter, do you know?
3 LORD JUSTICE HOLROYDE: We have.
4 MR JUSTICE PICKEN: It is the letter at page 79, is it?
5 Which I think must be (Inaudible).
6 MR STEIN: Yes, my Lord.
7 LORD JUSTICE HOLROYDE: Before the plea.
8 MR JUSTICE PICKEN: Thank you very much.
9 But your submission, presumably, is that that puts
10 Mr Fell in a similar category to others, where the false
11 accounting is being done to make up for errors that he
12 otherwise cannot understand because of Horizon?
13 MR STEIN: Yes. It does, my Lord, yes.
14 MR JUSTICE PICKEN: Thank you.
15 MR STEIN: My Lord, those are our submissions. I have been
16 slightly shorter than I expected. I hope that assists
17 the court in other ways.
18 LORD JUSTICE HOLROYDE: Yes, thank you, Mr Stein.
19 Mr Altman.
20 Submissions by MR ALTMAN
21 MR ALTMAN: The first point I am going to make is I thought
22 I heard Mr Stein say he didn't have access to the call
23 logs. He does. They were disclosed in tranche 1,
24 20 August last year, and so it has been open to Mr Stein
25 to check through the logs to see the nature of the calls
1 Mr Fell made to that helpline.
2 The second point and the central one which my Lord,
3 Lord Justice Holroyde, identified at the beginning and
4 one which has been clear throughout, is the question,
5 what makes this a case which depended on the reliability
6 of Horizon data? And what I respectfully submit is the
7 court has heard lots of argument from Mr Stein about all
8 of the problems suffered by other sub-postmasters and
9 including some that Mr Fell said after the event in
10 2014, during the course of the mediation process.
11 Unsupported, I have to add, by Mr Fell's own evidence
12 before the courts by way of (Inaudible) but be that as
13 it may, what we have not heard from Mr Stein is why this
14 is such a case, why it falls within the same category as
15 all the other cases the court has been dealing with over
16 the past couple of days.
17 Can I begin where, in a sense, Mr Stein himself did
18 with the plea.
19 The court knows and I am in the court's hands
20 whether the court wants to go back to the authorities
21 but the court is pretty well aware of the authorities on
22 the issue of the plea and the nature of the plea that
23 the court is dealing with in this case. The section 4
24 of the statement of reasons, and for the court's
25 reference, it is bundle A, tab 1 at page 53, sets out
1 the relevant authorities. You will remember the case of
2 Bhatti and you will remember the case of Kelly v
3 Connolly, dealing with that, which is in fact in your
4 bundle. If the court wishes me to take them to it, I am
5 very happy to. It's tab 15 of bundle B.
6 So it is the case of Kelly v Connolly in 2003 at
7 page 227. And the relevant part is to be found at
8 page 259 and my Lord, perhaps it is as well to have
9 these principles in mind, as the court will, because
10 they cut through all of the cases that the court has to
11 deal with today.
12 On page 259 at (b), you will find the case of Bhatti
13 referred to, an unreported case of 2000, which contains
14 an extensive summary and analysis of the relevant
15 authorities and the facts are there set out. Then the
16 court said, Lord Justice Potter said at paragraphs 30 to
18 "However, when the appeal is in respect of
19 a conviction following a plea of guilty, the
20 considerations which apply are very different and the
21 circumstances in which it may be appropriate or proper
22 to allow the appeal are of necessity very limited. That
23 is because the safety of the conviction depends not on
24 some legal error or perceived role or irregularity which
25 has arisen in the course of the adversarial process of
1 the trial, thereby leading to a verdict of guilty, which
2 might otherwise have been not guilty, it rests upon the
3 question of whether and in what circumstances the court
4 should look behind the plea of guilty (which represents
5 a voluntary recognition of guilt) and later on, an
6 examination of the reasons or motives of the defendant
7 in deciding so to plead. That, in turn, requires the
8 court to reach a decision based not upon objective
9 matters of record, namely the procedures adopted and
10 decisions reached openly in the course of the trial, but
11 on the subjective recollections and subsequent account
12 of the appellant and/or his advisers as to the reasons
13 for his plea."
14 The citation continues into the next page, which
15 I invite the court to read. At page 263 --
16 MR JUSTICE PICKEN: Specifically at paragraph 31, fourth
17 line down, "Similarly, whereby a reason of some act of
18 deception or non-disclosure on the part of prosecution".
19 MR ALTMAN: Yes, I don't doubt that but that question in
20 this case, as well as the others, is going to depend on
21 whether disclosure in relation to issues with Horizon
22 was necessary under the test, under the 1996 Act. That
23 depended on the question of whether it is a Horizon
24 reliability case. That is why, as it were, all roads go
25 back to that one question. Paragraph 127 on page 263:
1 "Ultimately, however, the test is of the safety of
2 the conviction. For the reasons expressed in Bhatti,
3 the scope of the finding that an unequivocal and
4 intentional plea of guilty can lead to an unsafe
5 conviction, must be exceptional and rare. However,
6 undue pressure or errors of law or unfairness in the
7 trial process may all be of such important causative
8 impact on the decision to plead guilty, that the
9 conviction which follows such a plea can, in
10 an appropriate case, be described as unsafe. In our
11 judgment, such as this case. A question of fact in each
13 So those are the important decisions, but there are
14 two others to which reference has been made. The cases
15 of Early and Togher. And perhaps it's worth, while we
16 have bundle B before us, to go to tab 14 in the case of
17 Early, Vice President, Lord Justice Rose and it goes to
18 paragraph 10, under the heading "Court's approach". And
19 if I invite the court just over halfway down, where you
20 will find the words at the beginning of the line "Are
21 involved", and the passage continues:
22 "We approach the question of safety of these
23 convictions following pleas of guilty in accordance with
24 ...(Reading to the words)... as approved in Togher,
25 namely a conviction is generally unsafe if a defendant
1 has been denied a fair trial. We bear in mind in
2 particular, three observations by Lord Woolf in Togher.
3 First at paragraph 30, if it would be right to stop
4 a prosecution on the basis that it was an abuse of
5 process, this court would be most unlikely to conclude
6 that if there was a conviction, despite this fact, the
7 conviction shouldn't have been set aside."
8 Secondly, at paragraph 33:
9 "In circumstances where it had been said that the
10 proceedings constituted an abuse of process are
11 ...(Reading to the words)... to the situation where it
12 would be inconsistent with the due administration of
13 justice to allow the pleas of guilty to stand."
14 And thirdly, at paragraph 59:
15 "Freely entered pleas of guilty will not be
16 interfered with by this court unless the prosecution's
17 misconduct is of a category which justifies it. A plea
18 of guilty is binding unless the defendant was ignorant
19 of evidence going to ...(Reading to the words)... of
20 material which goes merely to credibility of prosecution
21 witness, does not justify reopening a plea of guilty."
22 Those are the principles on which the court is being
23 invited to act.
24 It is those principles, indeed, which the CCRC sets
25 out in its statement of reasons. Now, in this case, if
1 the respondent is correct that this was not a Horizon
2 case, and I will come to why it isn't in a short while,
3 then as I have already said in passing, there was no
4 obligation to disclose material going to Horizon
5 reliability under the well known principles within the
7 If that is right, non-disclosure cannot give rise to
8 an abuse of process, whether limb 1 or limb 2.
9 A secondary point has been advanced during the course of
10 argument over the past couple of days and it may be one
11 to which Mr Millington refers to later. At paragraph 6
12 of the respondent's notice, as the court has before it,
13 bundle A, tab 4; bundle A, tab 4, page 1148.
14 Paragraph 6 has been alluded to more than once. What we
15 said there was the respondent also accepts the
16 applicable law set out by the CCRC at paragraphs 94 to
17 108 of the statement of reasons. The respondent doesn't
18 seem to draw any distinction between appellants who were
19 convicted following the trial and those who pleaded
20 guilty at any stage in the proceedings.
21 It has been suggested that the respondent's stance
22 in relation to these three opposed cases is inconsistent
23 with that statement. With respect, it is not because it
24 ignores the all important preceding statement in
25 paragraph 6, which adopts the applicable law on abuse of
1 process. So the concession there is that the court is
2 not being asked to make any distinction in any cases
3 which were reliant on Horizon data, insofar as whether
4 conviction was after a trial or following a plea.
5 The point is that if it is accepted that in cases
6 where Horizon reliability was relevant, there should be
7 disclosure from the outset to enable an abuse argument
8 to be advised. Failure to do so deprives the appellants
9 of the opportunity to advance an abuse submission, and
10 that means that the plea is tainted, and this is why in
11 any case where Horizon reliability was essential, the
12 Post Office has conceded these appeals, albeit on limb 1
13 in all but these three opposed cases and on limb 2, as
14 the court well knows, in four.
15 However, in this case, and indeed as with the other
16 two opposed cases, our submission is that Horizon
17 reliability was not essential as such, since the test
18 for disclosure was not satisfied and there was no abuse
19 argument advanced on the basis of material
20 non-disclosure. There is, we say with respect, nothing
21 to initiate the plea. As such, the guilty plea in this
22 particular case, and indeed the other two, which we will
23 come to, are not undermined and remain important. In
24 fact, direct evidence of guilt, in support of the safety
25 of the convictions.
1 In his speaking note which the court received
2 yesterday, Mr Stein's speaking note, reference is made
3 to Mr Fell's position, which is said to justify the
4 stance on Mr Fell's admissions. He then sets out in
5 that document what the CCRC relied upon. It included
6 information that Mr Fell took Post Office money to repay
7 unexplained losses, among other points. Can I invite
8 the court's attention to the statement of reasons, in
9 the first bundle, bundle A, at page 66.
10 One will find at page 66, this part of the principal
11 reference, subparagraph 7, which relates to a ciphered
12 case but the court can write in that that is the case of
14 LORD JUSTICE HOLROYDE: Yes.
15 MR ALTMAN: And what is said there is that:
16 "In this case, the shortfall was discovered when
17 a Post Office manager visited the branch because the
18 cash on hand figures appeared to be too high. In
19 a prepared statement which he provided to investigators,
20 the applicant explains that he had used Post Office
21 money to keep his shop afloat. He later pleaded guilty
22 to false accounting but denied theft. Although this
23 applicant admitted taking Post Office money to pay
24 bills, in relation to the shop, the CCRC considered that
25 it is significant that he also explained that he had
1 been using the shop income to pay unexplained Horizon
2 losses which were occurring. He then had taken money
3 back when he couldn't cover the shop bills."
4 Now, we can only speculate as to where that came
5 from. It clearly came from Mr Fell, and if it did, it
6 was (Inaudible) applications at the CCRC. But when we
7 come to look in a moment at what Mr Fell actually said,
8 and did, at the relevant time, one will see that that
9 was never claimed in the period up to and including his
10 basis of plea and, indeed, at the plea itself.
11 So we invite the court to be cautious. The court
12 has not heard, for whatever reason, evidence from
13 Mr Fell to support that claim and, therefore, it is
14 nothing more than an assertion which is unsupported by
15 Mr Fell's evidence.
16 We note that Mr Stein agrees, and it was agreed at
17 the time of the mediation process, that Mr Fell had made
18 good four shortfalls on the occasions mentioned in the
19 paragraph that Mr Stein took the court to and Mr Stein
20 relies upon an email from Mr Warmington, Mr Warmington
21 being one of the partners of Second Sight, in an email
22 dated 2013, where Mr Warmington himself, also not
23 a witness before the court, gives -- one cannot even
24 really call this an expert opinion but an opinion about
25 Mr Fell's responsibility for taking the money. The
1 relevance and the permissibility of it are unclear and
2 certainly, also in light of the document to which
3 Mr Stein took the court, the case review report at the
4 back of the bundle, in the mediation process, a year
5 later, 2014, when -- Second Sight views about the fact
6 that there were no cash deposits to be found which was
7 said by Second Sight not to be very unusual. Because of
8 course, Mr Fell's case was he was robbing Peter to pay
9 Paul, in other words, he was taking Post Office cash
10 from the shop till rather than it going through the bank
11 account. So according to Second Sight, it was not
12 completely unusual not to see cash deposits, so
13 Second Sight didn't conclude there was anything in that
14 particular point that was being made during the course
15 of the mediation.
16 So what are the facts that were before the court?
17 Mr Fell entered his plea on the basis of a plea document
18 and the court has that behind tab 26 at bundle E.
19 "I, Stanley Fell, am currently charged with a single
20 offence of false accounting."
21 In brackets we see there the indicted date,
22 1 June 06 to 25 October 06:
23 "I will plead guilty to this offence on the
24 following basis. Towards the end of 2004/the beginning
25 of 2005 ..."
1 This is before the shortfalls which were made good
2 even arose:
3 " ... I entered into a contract with a wholesaler by
4 the name of First Choice Limited. First Choice Limited
5 were to supply the stock to my stock which is contained
6 within the Post Office premises. In entering into such
7 an agreement, I hoped to turn around the poor sales that
8 the shop had experienced in the recent past. Initially,
9 the new contract led to a modest improvement but this
10 trend quickly reversed, due to one particular term in
11 the contract which stipulated that I must spend
12 a minimum of £2,000 on stock every week. It soon became
13 obvious that I simply didn't have the time (Inaudible)
14 to meet the stipulated term and I began to borrow [is
15 the word used] Post Office funds in order to meet the
16 shortfall and keep the shop afloat."
17 Pausing there, this is not an unexplained shortfall,
18 it is an explained shortfall:
19 "This took place over roughly the same period as set
20 out in the charge and I admit that I acted dishonestly
21 in falsifying the monthly (Inaudible) statement."
22 Then over the page:
23 "I wish to confirm to the court that at no time did
24 I intend to permanently deprive the Post Office of the
25 monies in question. It was always my intention to pay
1 back that which I had borrowed, as I now have. I didn't
2 intend to steal the money."
3 And it is signed, as we can see, by him, and
4 counsel, his solicitors, dated 27 July 07.
5 We make the following submissions, of which there
6 are nine in essence.
7 First, and my Lord, I will, in the same spirit as
8 everyone has done, I will tidy up my speaking notes
9 and --
10 LORD JUSTICE HOLROYDE: Thank you very much.
11 MR ALTMAN: First, the appellant made no claim and never
12 did, up to and including his pleas, covering up that
13 Horizon generated shortfall, rather than one created by
14 his own actions in taking money from Post Office to prop
15 up his retail business. In the basis of plea, which we
16 have just seen, he made no claim whatsoever to having
17 borrowed money from the Post Office -- this is the
18 important part -- to repay what he had made good in the
20 Can I say, if that had been his case, then perhaps
21 a different approach might have been taken towards it,
22 but he never said it, it was never his case. But what
23 he had done was to repay what he had made good in the
24 past. There is another reason why it cannot have been
25 and I'll come to that in a short while. This was all
1 about a bad financial deal that he had got himself into,
2 which required him, for liquidity purposes, to take the
3 money and cover up for it.
4 Indeed, when one looks, for example, at certain
5 things which had been said on Mr Fell's behalf, not just
6 today, not just in Mr Stein's speaking note but also in
7 the original grounds, they included claims by Mr Fell --
8 and this is to be found, my Lord -- we don't need to
9 look at it but the original grounds are in the very
10 first tab in the bundle, but I will give the court the
11 reference. It is paragraph 13(v), letters A to F and
12 they include a series of claims made on Mr Fell's
13 behalf, unsupported by evidence, relying on the draft
14 Second Sight report which is in tab 28, a year after
15 Mr Warmington's email, but representations included
16 then, that he didn't commit false accounting because he
17 says he informed the Post Office of the shortages on
18 several occasions.
19 He did but that was never part and never underlay
20 his plea of guilty. It was never part of his case.
21 Secondly, he went this far, that there was no evidence
22 he had taken money from Post Office which, as we know,
23 is in contradistinction to his own accounts, including
24 his own unequivocal plea and the basis of it.
25 The importance of the final case which you will
1 recall, which is in the final tab of bundle E, if you
2 could please go back to that. Tab 29, page 99. You
3 will see the dates. It is 5 December. The one before,
4 in tab 28, was dated 3 November and headed "Draft", and
5 this is the final. If one goes to the paragraph
6 Mr Stein invited attention to at 2.2. Both parties
7 recognise Mr Stein, in his document yesterday, called
8 this agreed -- it was agreed but this is how
9 Second Sight describe it:
10 "Both parties recognise that the applicant had
11 reported and made good discrepancies on four occasions
12 between late 2005 and December 2006, aggregating to
14 In order to come to this agreement, clearly these
15 figures hadn't changed and these were the only shortages
16 that had ever been reported and these were agreed by
17 Mr Fell and the Post Office, totaling a little over
19 If the money Mr Fell -- this is point 9, I have
20 probably skated over point 2, so I know my Lord likes
21 counting the points, so forgive me.
22 LORD JUSTICE HOLROYDE: I have stopped that at 1.
23 MR ALTMAN: That is very unkind -- there was more than one
24 point there.
25 LORD JUSTICE HOLROYDE: I understand.
1 MR ALTMAN: If the money Mr Fell falsely claimed, pleaded
2 guilty to and repaid, which is £19,000-odd, equated or
3 approximated to what he had admitted he removed from the
4 Post Office, then the four discrepancies he made good
5 during the period of late 2005 to December 2006, he came
6 (Inaudible) your Lordship's point on the indictment page
7 which are narrower, cannot explain the scale of losses.
8 That is his point. If his case really is "I was making
9 the discrepancies", £19,000, even deducting the thousand
10 leaving 18,000, cannot account for those four
12 We know, moving on, that the appellant also made
13 a series of comments during the course of the
14 investigation, which is cable of bearing an adverse
15 interpretation. If one goes -- and if the court finds
16 it helpful, perhaps, rather than going to the actual
17 document, if you find it necessary, if we go within the
18 bundle, please, to the case summary which we prepared to
19 assist the court at tab 3, at page 16.
20 These are the comments which were made by Mr Fell
21 during the course of the early days and the importance
22 of this is even before he was ever charged or
23 interviewed, he made adverse comments, comments against
24 interest, paragraph 4, second line down:
25 "If I was to give you a cheque for the shortage,
1 would that be the end of it?"
2 That was on 23 October. Paragraph 7, three days
3 later, towards the bottom of that page, during the
4 conversation, Mr Fell said to Ms Bailey, the
5 investigator, that he had been very stupid and he hadn't
6 intended to take money from the Post Office but
7 circumstances had led him to it and the circumstances,
8 we suggest, are the ones he was to tell about later, his
9 financial mismanagement.
10 Over the page at the top, 17:
11 "Several times he told her that it had been
12 a foolish thing to do. He also told her that he thought
13 he would have been found out a while back."
14 "Found out a while back" does not sound in its terms
15 that he had problems with Horizon or was simply covering
16 shortfalls which had been made good in the past, or
17 repaid out of Post Office funds. He told her he thought
18 he would have been found out a while back, that a person
19 who had visited him then had not checked the cash
20 against the balance snapshot, as she had.
21 So in other words, somebody who had performed
22 (Inaudible) in the past had not done competently and had
23 missed what Mr Fell had been doing. Paragraph 9,
24 7 November 2006, last line. In relation to --
25 7 November is a copy of emails that Ms Bailey produced
1 and in which she noted these comments but also on
2 26 October, in the last one of this calendar month, he
3 had said he had not "taken any more money for quite
4 a while".
5 Then, my Lord, can I invite attention to the
6 prepared statement of 25 November, so a month after both
7 the initial conduct. Tab 14, and I am not going to go
8 through it all but I just invite attention to page 40
9 and 41, which -- 40 and 41, third paragraph:
10 "The burden of my actions became so unbearable that
11 on 11 November, I planned to end my life."
12 Penultimately on that page:
13 "I wish to offer the Post Office and my family
14 an unreserved apology for my financial negligence but
15 wish to reaffirm without prejudice that at no time have
16 I sought to steal or defraud the Post Office of any
17 stock or cash whilst in my custody. It has always been
18 my intention to repay the money to the Post Office."
19 So I emphasise, just looking at what we looked at so
20 far, prior to charge, Mr Fell admitted taking money but
21 his own defence was "I always intended to pay it back",
22 and therefore, his defence was lack of intention
23 permanently to deprive.
24 His defence evidence, tab 22, page 75:
25 "The nature of the accused's defence is that he used
1 the Post Office monies to keep the adjoining shop,
2 afloat having suffered a decline in the trade at the
3 Post Office and having mismanaged the stocking of the
4 shop, resulting in financial difficulties in meeting the
5 overheads of the business. He always intended to repay
6 the monies."
7 That is dated 7 June. No word there again, I have
8 to emphasise, about making good shortages in the past as
9 his reason for borrowing the money.
10 Then as my Lord, Mr Justice Picken commented
11 earlier, there is the solicitor's letter, which was
12 revealed during the course of the mediation. At tab 24,
13 6 July -- I think I said earlier that he pleaded the
14 next day and he was certainly sentenced on 27 July, but
15 the letter reads:
16 "Dear Stanley, I wish to confirm that you appeared
17 at Leceister Crown Court on 29 June for a plea and case
18 management hearing. As you will recall, a full
19 conference took place with myself, your barrister, Peter
20 Hampton, and Michael Rudkin from the Federation [Michael
21 Rudkin was involved in the early days at the branch
22 itself, when the auditors went in] and you again
23 received full advice regarding your plea. Peter
24 Hamilton liaised with the prosecution on the basis of
25 ...(Reading to the words)... loss of £19,582. The
1 prosecution confirmed a guilty plea to an alternative
2 count of false accounting was an acceptable resolution.
3 You have always accepted that you were guilty of false
4 accounting by way of creating false cash records to
5 disguise the monetary loss to the Post Office caused, as
6 a result of you taking funds to keep your shop afloat."
7 If ever there was going to be a document which
8 revealed Mr Fell's case was anything different, it was
9 going to be this privileged letter which I leave to
10 later. There was no hint here of what Mr Fell did or
11 conceded he did, was based on his having previously made
12 good unexplained shortfalls.
13 So a few, please, final submissions from me. I am
14 not going to number them this time but if this had been
15 a case -- if this had been a case where reliability of
16 Horizon data was essential, which is the premise of the
17 CCRC's references, then the appellant's case would
18 amount, at the very least, to a first category of abuse
19 of process, based on failures of investigation of the
20 disclosure of Horizon. That much we have always
21 accepted. But we submit this is not such a case.
22 Because it isn't, material that should have been
23 disclosed in cases which were dependent on the
24 reliability of Horizon data was not disclosable under
25 the 1996 Act. In a case like this, where we submit,
1 self-evidently, the reliability of Horizon data was not
3 If the argument is that it was incumbent on the
4 Post Office, in any event, to disclose the fact of those
5 four discrepancies at the time, or as Mr Stein himself
6 recognises, Mr Fell knew about them and could easily
7 have instructed his team about the fact of them. But
8 the fact that on the face of it, Mr Fell never did, is,
9 we submit, some recognition that in Mr Fell's mind,
10 those four incidents, those four discrepancies, had
11 absolutely nothing to do with the reasons why he removed
12 that cash from the Post Office, which is entirely
13 consistent with his case, which was it was to fund his
14 shop, having made bad supply arrangements.
15 So our submission is that the arguments which
16 certainly appears in Mr Stein's preliminary grounds,
17 that Horizon was central to this case, was obviously --
18 we don't need to go to it perhaps, but this is page 7 of
19 the bundle, behind tab 1, central to his case is
20 "Initially he borrowed money from the general shop to
21 make up, as he was contractually bound to do, shortfalls
22 that were highlighted by Horizon", is just not supported
23 by any of the evidence before this court. It was not
24 his case, it was never advanced and, although this case
25 appeared in the draft and then the final case review
1 reports, prepared by Second Sight, in the final two tabs
2 of bundle E, from what he was then saying, only the
3 final report makes clear that the total sum he ever had
4 to make good, as agreed, was a little over £1,000. And
5 as I have said, that cannot explain his removal from the
6 Post Office of over £19,000.
7 Of course, your Lordship is right that the figure in
8 the indictment on false accounting was the total of
9 £19,000, and didn't take account of the extent of the
10 £1,100, and again, without being over-technical, the
11 financial sum is not itself a material (Inaudible) but
12 nonetheless, it is part and parcel and clearly there is
13 a balance there of £18,000 which is not unexplained, it
14 is all totally explained.
15 So what we submit, if this had nothing to do with
16 him paying himself money that he had taken from his
17 business to make good the shortfall, which had it been
18 his case, would have been crucial to reveal at the time,
19 and indeed in litigation, then it was his personal
20 (Inaudible) this was never and is not a case which was
21 dependent on Horizon data.
22 So it is for these reasons that this appellant's
23 case, both, we submit, that the CCRC's central reason
24 for raising the reference can apply and his case is not,
25 arguably, unsafe, either on grounds of first or second
1 category abuse of process.
2 Those are my submissions, my Lord.
3 LORD JUSTICE HOLROYDE: Thank you, Mr Altman. There is
4 a small point I would like your help with, please.
5 If we go to tab 16, which is the statement of
6 Ms Bailey, on page 53, the first page of that statement,
7 just by the second hole-punch, she said:
8 "She arrived, introduced herself to Mr Fell, told
9 him the reason for my visit and that I needed to check
10 the cash that was not matching up with what the Horizon
11 computer system was showing."
12 Can you just explain to me what that means in
13 practical terms.
14 MR ALTMAN: What it means is, in these kinds of cases, and I
15 strongly suspect it was the same (Inaudible), is that
16 when sub-postmasters falsely account, it means that they
17 are showing they have more cash than they actually do.
18 But the problem is, it is a self-defeating exercise
19 because they find themselves making declarations which
20 are untrue in terms of the cash on hand, as it is
21 called, and because of that, the cash on hand which
22 postmasters are declaring, goes back to a central office
23 and that will trigger cash allowance being actually
24 remitted into the branch to recover the cash that they
1 I suspect what Ms Bailey is saying there is that the
2 figures that were being reported back and the amounts of
3 cash that he was calling in just didn't match or were
4 outwith what was understood that the branch would
5 require, so that might have triggered the audit.
6 LORD JUSTICE HOLROYDE: So is this Mr Warmington's
7 (Inaudible) that altering the figures of the cash in
8 hand has the result of further delivery of cash was
10 MR ALTMAN: Mr Warmington's point, if I could just pick up
11 the email, Mr Warmington's point is he is complaining to
12 Post Office about the shortage of cash. Well, yes,
13 I suppose it is and considering he didn't have enough
14 cash to keep his branch open and running, is a pretty
15 solid indicator that he was running a deficit. If that
16 is what your Lordship is asking, that seems to be what
17 Mr Warmington was saying but in our submission, that was
18 a typical symptom of a sub-postmaster overdeclaring cash
19 that they actually had. In other words, they didn't
20 have a cash (Inaudible) branch because they were not
21 declaring it and the cash actually wasn't there, it was
22 attending to it. If one declared cash on hand of, let's
23 say, £20,000, but that was all false, then in order to
24 carry on running the branch, the postmaster needed to
25 get more cash in and that was a typical symptom of false
2 MR JUSTICE PICKEN: Mr Altman, I think this point has been
3 made clear already, but if you go to the attachment to
4 that witness statement at page 59, which is Jane
5 Bailey's internal report to John Longman, under the
6 heading of 23 October, she says:
7 "I was asked to visit Newton Bergoland by
8 ...(Reading to the words)... due to concerns over the
9 amount of cash in the branch and the amount of REMs
10 being requested."
11 MR ALTMAN: That confirms the reason why.
12 MR JUSTICE PICKEN: Exactly. That is Mr Warmington's --
13 MR ALTMAN: It seems so, yes.
14 LORD JUSTICE HOLROYDE: It seems inevitable that this came
15 to light very quickly.
16 MR ALTMAN: I don't know how that is, my Lord, and
17 I wouldn't like to say, that that would inevitably come
18 to light very quickly because it depends on the
19 processes here in the central offices where these sorts
20 of things are dealt with. I don't know.
21 LORD JUSTICE HOLROYDE: All right, thank you very much.
22 Thank you very much, Mr Altman.
23 Mr Stein, do you want to reply.
1 Submissions in reply by MR STEIN
2 MR STEIN: Yes, my Lord, briefly.
3 The point has just been made. Can I take you
4 please, to page 36. I recognise immediately there is
5 an element of this that cuts both ways but can I take
6 you to the bundle, page 36 and the interview of Mr Fell.
7 Helpfully here, his position is set out to the
8 right-hand side -- have I given the wrong numbering?
9 Should it have been -- I've got two numbers on this
10 page. It is 44 and 36, the interview of Mr Fell.
11 LORD JUSTICE HOLROYDE: This is his prepared statement?
12 MR STEIN: That's right, being dealt with within the
13 interview, and obviously, he provides his name and age
14 and details, and sets out therefore, within the prepared
15 statement, an interview:
16 "May I state from the outset without prejudice that
17 at no time have I ought to steal or defraud from Post
18 Office Limited any stock or cash whilst in my custody."
19 Then he explains that when he was appointed the
20 sub-postmaster in 76, and then goes on to refer on
21 23 October 05:
22 "Ms Bailey, community business development manager,
23 entered the premises to investigate [this is the point]
24 a complaint that I, Stanley Fell, had made to
25 Post Office Limited cash management centre about the
1 lack of funds I had at my disposal to finance the
2 running of the Newton Bergoland Post Office."
3 Now, we have heard from my learned friend
4 Mr Altman -- I am not sure I remember which point -- but
5 the position that has been set out by, therefore,
6 Mr Fell, is that he is the person bringing this to the
7 attention of the Post Office, and that is the point that
8 is being made at a later stage.
9 Now, the oddity, therefore, that is being considered
10 is, well, here is a man that, in theory, on the basis of
11 the prosecution case, on the basis indeed, as my learned
12 friend Mr Altman, as I anticipated, set out: well that
13 is what Mr Fell said. He has taken the money and he is
14 also telling the Post Office that he has taken the money
15 by alerting them to that is what happened. We
16 recognise, because frankly, we are not unrealistic, that
17 we have to ask this court to accept that the points that
18 are in favour of Mr Fell, which are that the background
19 to this is unsatisfactory, the unexplained losses that
20 he had to make up, we learn nothing from the respondents
21 about that, as to whether that was Mr Fell's fault. He
22 couldn't use the system, his assistants were not doing
23 it right ...
24 We have nothing about that, all we have is evidence
25 in the background to the time whereby the audit was
1 made, that there were unexplained transactions in which
2 he had to make up the losses.
3 That evidence was not available to his legal team
4 and the oddity is, I agree with Mr Altman, that's not
5 an oddity, agreeing with Mr Altman, but the oddity is,
6 in agreement with the way my learned friend set out the
7 respondent's facts, his own legal team were not made
8 aware of that.
9 That is why I have prayed in aid so many times the
10 reference to the generic review. People were in a very
11 difficult position. He wasn't aware of the nature of
12 the difficulties and how they could build up. It is to
13 that that any legal team acting on his behalf, when
14 instructed and either by him or by through disclosure
15 from the Post Office, they would have been able to start
16 making their inquiries and say: what on earth was going
17 on here, what was going on in the accounts. Sums of
18 money being mentioned by my learned friend Mr Altman,
19 well, £1,000 is not similar to 19,000 -- when the
20 computer system has an unexplained loss, or
21 a difficulty, so that the sub-postmaster has to make it
22 up, the computer system doesn't decide: well, I will
23 make a small loss or a big loss, it doesn't know. Or
24 itself, it's a number. It could be £5 or it could be
25 5,000, or more, so there's no thinking involved in the
1 Horizon system. So the numbers not matching, £1,000
2 being only one 19th of £19,000, makes no difference.
3 The fact is there were problems before and in the
4 period after the First Choice contract was made and,
5 therefore, there were problems in the accounting system
6 in this particular Post Office and we ask the court to
7 accept that against the lack of disclosure of problems
8 with Horizon that was ongoing at this time, by the
9 Post Office, their fault, not Mr Fell's, their fault
10 entirely, there wasn't an ability for Mr Fell or his
11 legal team to put this into perspective and to ask the
12 right questions.
13 MR JUSTICE PICKEN: Mr Stein, do you say this a case where,
14 actually -- I know you say it is a limb 1.
15 MR STEIN: Yes.
16 MR JUSTICE PICKEN: But if it is not a limb 1 because the
17 duty of disclosure didn't arise, for the reasons you
18 have explained, because the reliability of Horizon was
19 not put into play by your client, then nonetheless,
20 limb 2 comes to the rescue.
21 MR STEIN: I do. I do and, my Lord, forgive me putting it
22 this way, you beat me to it because, we say, and case
23 law supports this, in the position that Mr Fell was in,
24 the abusive nature of the acts by the Post Office
25 throughout this period were an affront to justice, all
1 the arguments we have been hearing over the last few
2 days. And the case law supports that disclosure that is
3 necessary to assist with an application to stay is also
4 subject to disclosure rules and should have been
5 provided. We know that didn't happen. He was entitled
6 via his legal team to make that application.
7 I know that in front of a judge, a judge might say:
8 hang on, Mr Stein, look at what Mr Fell said and that
9 might go to a point that weakens such an application but
10 nevertheless, against the substantial nature of the
11 abuse that has been identified in relation to the
12 Post Office, and bearing in mind that this is not
13 a case, whilst of course serious, not a case of the
14 height of seriousness of the type that so many times
15 this court is considering, it is not at the level of
16 a murder or similar, we are looking and are entitled to
17 look into the relative position on the scale of cases,
18 not the highest or the worst or the most serious of its
19 type, as against the abuse which has been perpetrated.
20 On that balancing, those balancing factors, and with
21 enough evidence, the unexplained disclosures in the
22 background, we suggest that the fault, if you like, for
23 the problems with disclosure, there is enough here to
24 take Mr Fell's case home, we suggest, within both limbs
25 but certainly as an affront to justice.
1 MRS JUSTICE FARBEY: Can I just clarify, you are not saying
2 that anyone who was prosecuted by the Post Office in
3 a certain period has been subjected to limb 2 abuse?
4 Does that mean we were (Inaudible), we were not
5 analysing the facts of each case, or are you saying
6 there that, for instance, the 729 calls to the helpline,
7 the -- well, the features of his case, leaving aside
8 limb 1 abuse, where you say that -- and concentrating
9 on, as Mr Busch put it, the relationship between the
10 court and the prosecutor and features getting into
11 limb 2, that he did -- he had made 729 calls, he had
12 tried at least to pay some money back, what --
13 MR STEIN: Unexplained losses, he is in the same position as
14 other sub-postmasters, not knowing what is going on, the
15 lack of disclosure about any bugs in the system more
16 generally, he is in the same contractual position which
17 is an unequal contract, without question, with the
18 Post Office, as argued by the Post Office through the
19 civil litigation proceedings. So that we suggest that
20 all of those features allow him to, and ourselves on his
21 behalf, to put him within the categories of both abuse
22 of process limbs but if we are considering the question
23 of limb 2, then limb 2, affront to justice, because
24 whilst the point being made, as I anticipated, by
25 Mr Altman, is, it is nothing to do, he says --
1 MRS JUSTICE FARBEY: He says they are explained losses, not
2 unexplained losses.
3 MR STEIN: Exactly, as I anticipated earlier, that Mr Fell
4 makes certain remarks. What we are left with,
5 therefore, on behalf of Mr Fell, are indications that
6 should have allowed his legal team, if the truth had
7 been known overall about the problems with Horizon, to
8 look into this and consider: where were the problems
9 with your accounting.
10 Without that, either then or now, because we cannot
11 go back now in time, to look at his position, we cannot
12 instruct a Mr Henderson or similar to look into this
13 position, because time has gone by, through which we
14 have an ability to look into this. We cannot
15 reconstruct his position. And the point we are saying
16 is that there are indications that mean that there
17 should have been an investigation into that. The point
18 made by Mr Altman is Mr Fell didn't say it. All we say
19 on his behalf --
20 MRS JUSTICE FARBEY: I am not sure that is available. He
21 also says "and he did say other positive things".
22 MR STEIN: It is a double barrel. It is, first of all, he
23 didn't say it and secondly, he said other things.
24 But he didn't also say about the unexplained
25 repayments and what we say, therefore, is that Mr Fell
1 can be excused in his position. And we also, I have
2 reminded the court, as indeed my learned friend
3 Mr Altman did, Mr Fell, after the audits and after the
4 procedures fell into place, so that he was then under,
5 essentially, investigation, let's be plain about this,
6 he didn't react well. He found it very difficult. And
7 he tried to take his own life.
8 LORD JUSTICE HOLROYDE: Thank you very much, Mr Stein.
9 MR STEIN: My Lord, can I assist any further?
10 LORD JUSTICE HOLROYDE: No, thank you very much.
11 Right, then Mr Moloney, do we turn to the case of
12 Wendy Cousins?
13 MR MOLONEY: If it pleases my Lords and my Lady, yes.
14 Submissions by MR MOLONEY
15 MR MOLONEY: Sorry, my Lords for that slight delay.
16 My Lords and my Lady, we have furnished the court
17 with a very short speaking note. It is only really as
18 a aide-memoire in due course because of course, my Lords
19 and my Lady have indicated that you have read all the
20 skeleton arguments in the case but we thought, you
21 having done that, we would be able to take our
22 submissions relatively briefly.
23 LORD JUSTICE HOLROYDE: Thank you.
24 MR MOLONEY: In this speaking note, the circumstances of the
25 appellant (Inaudible).
1 LORD JUSTICE HOLROYDE: Can I just pause you a moment. We
2 have again got a contemporaneous --
3 MR MOLONEY: That is Mr Henderson, my Lord.
4 LORD JUSTICE HOLROYDE: Thank you very much.
5 MR MOLONEY: My Lords, just perhaps at this junction,
6 my Lords having noticed Mr Henderson, it may be useful
7 if I were to say to the court that Ms Johnson and I have
8 discussed a possible way in which this appeal might
9 proceed and see whether or not this accords with
10 my Lords and my Lady. (Inaudible) I introduce this now,
11 I then proceed to call Mr Henderson, and call
12 Mr Henderson in a way that accords with the way that
13 my Lords and my Lady would wish to call him, in that we
14 thought it may be an appropriate way would be for me to
15 introduce him and tender him for cross-examination and
16 then any questions the court may have of him and then
17 move to final submissions after Mr Henderson's evidence.
18 LORD JUSTICE HOLROYDE: Yes, that sounds very sensible.
19 Thank you very much, my Lord.
20 MR MOLONEY: My Lords, paragraphs 1 to 3 of the speaking
21 note, we set out the circumstances of the appellant's
22 pleas to theft and the disposal of her case. We
23 emphasise that in this case, my Lords and my Lady, the
24 appellant raised the reliability of Horizon and indeed,
25 whether or not the Post Office could prove any loss in
1 relation to these theft counts, in a defence statement
2 and proceeded to defend these charges until,
3 essentially, almost the door of the court, when there
4 was an agreed basis of plea between Post Office Limited
5 and the appellant. The terms of which my Lords and my
6 Lady will be aware of.
7 It is common ground between the parties, my Lords
8 and my Lady, that this appeal turns on whether Horizon
9 generated evidence that was essential to the prosecution
10 of the appellant. It has to. Independently of the
11 Horizon issue, the appellant has identified in her
12 skeleton argument a number of features of unreliability
13 of the case against her. We have set those out at
14 page 2 of our speaking note. They are explained more
15 fully in paragraphs 9 to 50 of the skeleton argument and
16 the individual factors which are set out herein are also
17 reproduced at paragraph 53 of our skeleton argument.
18 But essentially, no evidence that she had stolen the
19 pouch, as we say and lots of other factors there set out
20 within A to H.
21 We concede that those features are insufficient on
22 their own to render her convictions unsafe but we rely
23 on them as adding weight to her appeal, should the court
24 decide that, in fact, Horizon was in issue in this case.
25 If the court decides that Horizon was in issue in
1 this case, was essential to the case, I should use the
2 right terms, then we say that her convictions are unsafe
3 on ground 1.
4 We set out at paragraph 9 of our speaking note, the
5 factors which we pray in aid in support of those, but we
6 think it is best not to rehearse them before
7 Mr Henderson, as it were, before he gives his evidence,
8 and just simply to call Mr Henderson at this juncture to
9 be questioned as to the contents of his report.
10 MR JUSTICE PICKEN: Before you do that, can I ask you, do
11 you rely on ground 2 if you fail on ground 1?
12 MR MOLONEY: We don't think we can, my Lord. The way in
13 which our submissions proceeded before this court on
14 Monday and yesterday were that the ground 2 abuse
15 essentially turns on whether or not Horizon was
16 essential to the case, because, in those circumstances,
17 in short form, the respondent should not have been
18 prosecuting these cases because of its attitudinal
19 resistance to the unreliability of Horizon. And so that
20 is the focus of our submissions on ground 2, and so --
21 but it follows my Lord, I should make this clear, but in
22 her case, if we succeed on ground 1, we would say that
23 we inevitably succeed on ground 2.
24 MR JUSTICE PICKEN: I understand that.
25 MR MOLONEY: Thank you, my Lord.
1 LORD JUSTICE HOLROYDE: Let Mr Henderson then make his oath
2 or affirmation.
3 MR MOLONEY: Thank you.
4 MR IAN HENDERSON (sworn)
5 Examination-in-chief by MR MOLONEY
6 LORD JUSTICE HOLROYDE: Thank you, Mr Henderson.
7 MR MOLONEY: Mr Henderson, would you give the court your
8 full name, please.
9 A. My name is Ian Rutherford Henderson.
10 MR MOLONEY: Would the court require me to go through
11 Mr Henderson's expertise or may I take that as read --
12 LORD JUSTICE HOLROYDE: Ms Johnson helpfully indicated it is
13 not necessary and, of course, we have Mr Henderson's
14 report, so we will take that as read.
15 MR MOLONEY: I am grateful for that indication, my Lord.
16 Mr Henderson, may I ask you, do you adopt the
17 contents of your report?
18 A. Yes, I do.
19 MR MOLONEY: May I simply tender Mr Henderson for
20 cross-examination then, my Lord?
21 LORD JUSTICE HOLROYDE: Yes.
22 Cross-examination by MS JOHNSON
23 MS JOHNSON: Mr Henderson, can you hear me okay?
24 A. You are a little faint but I am wearing headphones, so
25 I will do my best.
1 Q. Mr Henderson, we have the report that you have prepared
2 in the case of Wendy Cousins before us and I hope you
3 have that too.
4 A. Yes, I do.
5 Q. And without going through any of the preamble, we remind
6 ourselves that you, along with Mr Warmington, are
7 directors of Second Sight.
8 A. That's correct.
9 Q. And as you have set out in your report -- my Lords and
10 my Lady, tab 2, page 31 -- you were the coauthor of the
11 interim report into the Horizon system, dated July 2013,
12 briefing report part 1, July 2014 and briefing report
13 part 2, the following year, April 2015; is that right?
14 A. That's correct.
15 Q. And your remit was wide, I believe, not just involved
16 with the Horizon computer system but various other
17 aspects, such as operational processes and so on and so
19 A. That's correct.
20 Q. So for those years you were effectively living and
21 breathing Horizon and all its variables?
22 A. Correct.
23 Q. Now, in your report, and can I invite you, please, to go
24 to page 35, you say at paragraph 17:
25 "This matter relates to cash payments associated
1 with pensions and allowances [P&A] vouchers, often
2 described as foils, dockets or green giros."
3 And I am sure you will accept that your report,
4 I can take you to other paragraphs if necessary, but
5 your report is predicated upon the basis that
6 Mrs Cousins' case involved pension and allowance
7 vouchers; that is right, isn't it?
8 A. I didn't quite hear the last -- pension and allowance --
9 what word did you use after that?
10 Q. Vouchers.
11 A. Vouchers.
12 That is the term I found most frequently used by
13 Post Office and as I said in my report, I therefore
14 adopted that term, even though, as I think the court is
15 aware, we are primarily talking about what is known
16 colloquially as green giros or giro cheques, in terms of
17 this particular prosecution.
18 Q. Yes, and you were using pension and allowance vouchers
19 and green giros, effectively, as synonymous?
20 A. I was reflecting the way that in my research, I had
21 found Post Office had dealt with this matter without
22 making a clear distinction between what is clearly
23 different methods of payment and different documents.
24 There does seem to be general sort of confusion between
25 what is a green giro, which is a term not generally used
1 by Post Office, and some of the other documents that are
2 used to facilitate payments by the Department of Work
3 and Pensions.
4 Q. Mr Henderson, I am going to suggest that is not right at
5 all, because if we look at your report, you have
6 extensively quoted from a paper prepared by Post Office
7 to assist you in your Second Sight reporting, haven't
8 you? It is your footnote (Inaudible).
9 A. Yes, footnote 1, I have referred extensively.
10 Q. Yes. And if we go to page 38, please. This is you
11 quoting the Post Office information. You start at the
12 top of the page by saying this:
13 "Post Office has previously stated the following:
14 benefit payment methods. There are various methods by
15 which benefits can be received by customers."
16 Then the first one is set out there, and it is
17 pension and allowance books. Do you have that?
18 A. Yes, I do.
19 Q. And I am not going to go through it all but it is P&A
20 books provided by DWP to customers entitled to benefits
21 and then you repeat what the Post Office informed you as
22 to the way in which that method operated; all right?
23 A. Yes.
24 Q. And then if you go to page 40, please, Mr Henderson,
25 again quoting Post Office's own information, we see
1 paragraph 9, an entirely separate section headed "Green
2 giros." Have you got that?
3 A. Yes, I have.
4 Q. And customers who lose their POCA card or customers who
5 are on temporary benefits may be sent green giros by the
6 DWP. These are cheques, also known as DWP cheques,
7 which set out the payment amount and can be cashed in
8 the usual way.
9 So Mr Henderson, would you accept first of all, that
10 insofar as Post Office is concerned, these are two
11 separate methods by which benefits can be received by
13 A. I accept that but I also note at the foot of page 40,
14 where it says "Overclaims occurred with P&A books and
15 green giros", and bearing in mind this prosecution was
16 dealing both with overclaims and reintroductions, that
17 topic, as far as it related to the Department of Work
18 and Pensions, potentially related both to P&A books and
19 green giros, although I accept that Ms Cousins was
20 prosecuted only in respect of green giros.
21 Q. Yes, and the reason why this may be significant is,
22 first of all, I am sure you would accept, that there are
23 different methods whereby the customer receives these
24 two forms of benefit. In a pension allowance they would
25 receive a book with a series of vouchers within that
1 book, and when they come to cash those, the book is
2 scanned by the postmaster -- I am sure you would accept
4 A. Yes, subject to the comment that it is actually more
5 complicated than that. When I looked into this, I found
6 that there were at least 10 different sources of
7 allowance from different organisations, including for
8 example, the Ministry of Defence, the Royal Air Force,
9 and so on, all of which had slightly different systems.
10 Q. Yes, I completely agree, Mr Henderson, a pension
11 allowance book encompasses a wide spectrum of benefits
12 but the difference, or one of the differences, and I am
13 just going to go through a handful with you, whereas
14 pension allowance vouchers come in a book, green giros
15 are sent to the customer a single green giro at a time,
16 so they are not, as it were, torn out of a book; do you
17 accept that?
18 A. I do and that is also my understanding.
19 Q. And then pension and allowances, as you have indicated
20 on page 35, your paragraph 19, (inaudible) vouchers,
21 once they have been cashed at the Post Office, are sent
22 to a processing centre in Lisahally, which I think is in
23 Northern Ireland?
24 A. That my understanding.
25 Q. Yes. Whereas, Mr Henderson, the green giros are not
1 sent to Lisahally, they are sent to the Alliance &
2 Leicester and then it became Santander, in Bootle, in
3 Liverpool. Would you accept that?
4 A. Well, again, I think it is slightly more complicated
5 than that, because there was a predecessor organisation
6 which was Giro Bank, which is where the term giro was
7 originally derived from, as I understand it, so the
8 predecessor organisation was Giro Bank. It then became
9 Alliance & Leicester and as you will see in my report,
10 Post Office have used the term Santander to refer
11 collectively to the processing of green giros.
12 Q. Yes, but at the time with which this court is concerned,
13 would you accept that the green giros were sent to
14 Alliance & Leicester in Bootle; would you accept that,
15 Mr Henderson?
16 A. That is my understanding, subject to, you know, checking
17 particular dates and so on, but in general, I would
18 accept that.
19 Q. Well, thank you, and we have a slight difficulty because
20 we cannot hand you documents but I have shown Mr Moloney
21 one of the green giros involved in this case -- both
22 my Lords and my Lady, it is not the one in the bundle,
23 because that is the print and that is rather poor but
24 another one which we have, and you will have seen it
25 makes it clear it went to Bootle.
1 MR MOLONEY: I can confirm that, my Lords and my Lady.
2 MS JOHNSON: I am most grateful to my learned friend.
3 The reason why this may be relevant, Mr Henderson,
4 is this. Your report is predicated on all the cheques
5 going to Lisahally and you make criticism as to the
6 checking regime conducted there, don't you?
7 A. Well not just Lisahally and if I can just sort of step
8 back a moment, when I prepared my report, I started by
9 conducting a review of the relevant documents, the
10 relevant sort of evidence and I quoted extensively from
11 Post Office documents.
12 My expectation at the time was that we would follow
13 the procedure described in the order of the court
14 from November last year, where the respondents would
15 serve expert evidence and then would engage
16 constructively in preparing an agreed joint memorandum
17 and, as you know, that didn't happen.
18 So a number of the issues that I have raised in my
19 report, I hesitate to say that they were speculative but
20 they were designed to establish a dialogue with your
21 expert, so that we could provide a clearer explanation
22 for what is clearly a rather complex matter.
23 Q. Yes but of course you, as I indicated a little earlier,
24 you have been immersed in this subject for many years,
25 haven't you, Mr Henderson?
1 A. My first involvement was through the initial mediation
2 scheme which considered 150 applicants, former
3 postmasters. We analysed those cases and out of the 150
4 applicants, only 13 related to pensions and allowances.
5 Unfortunately, I don't have a breakdown of what
6 proportion of those were green giros, as opposed to
7 pension book issues, but I suspect the majority may well
8 have been green giros, but that was a relatively small
9 proportion of the overall work that I performed.
10 Q. Yes. So does it come to this, that you are still not
11 entirely clear as to the specific checking regimes
12 involved with Green giros?
13 A. Well, in my report, and I have raised this on a slightly
14 speculative basis, I am expressing opinions in terms of,
15 well, what was the reconciliation between Alliance &
16 Leicester or Santander and Post Office. We know that
17 they had a client relationship. We also know that there
18 were relatively infrequent reconciliations. We also
19 know that there were relatively infrequent transaction
20 corrections being issued as a result of errors being
22 I am speculating that the description that has been
23 provided by Post Office in terms of how the overall
24 system operated was perhaps -- it didn't necessarily
25 operate in the way that it was meant to operate. But
1 I raised that more in the expectation that I would be
2 able to have a dialogue with your expert and reach
3 an agreed position in terms of providing the court with
4 a joint memorandum.
5 Q. I see. So if I was to suggest that green giros were
6 checked more frequently than pension allowance vouchers,
7 you couldn't say one way or the other; is that what it
8 amounts to?
9 A. That is my position.
10 Q. Thank you.
11 Can I turn to a different topic, and if we go to
12 your report, please, at page 48.
13 A. Yes.
14 Q. And here we are dealing with what aspects of Horizon may
15 have been again in this particular case and in
16 paragraph 28, you set out a number of headings there,
17 and just so that the court understands, these are
18 headings which you culled from the schedules which were
19 placed before the court in Ms Cousins' proceedings?
20 A. That's correct.
21 Q. We don't need to look at the schedules but if we could
22 please go through them, just to understand what we are
23 really dealing with. 28(a), the first Horizon matter on
24 those schedules, (Inaudible), and I think that refers to
25 counter position; is that correct?
1 A. Yes and I don't know if this is of assistance but one of
2 the witness statements of the Post Office investigator,
3 which is at tab 32, actually sets this out in quite
4 a lot of detail. It is page 180 and 181 of the bundle,
5 so I would hope that the description is not
7 Q. The description is not controversial, but I just want to
8 appreciate, through you, what it amounts to.
9 So ID is the counter position and I think you can
10 confirm that there was only one counter at this relevant
12 A. That's correct.
13 Q. "User", second element, that is the ID of the person
14 entering the transaction, and having read the papers,
15 you will appreciate that Mrs Cousins and her some time
16 assistant shared the same user ID?
17 A. And in fact, it may have been slightly more than that.
18 One of the issues raised at one point was whether
19 Ms Cousins' husband or indeed son, ever worked in the
20 business. But what is clear is that the same user ID
21 was used by everybody, the same user ID and indeed
22 password, so that electronically, it is not possible to
23 link that entry or any of those entries to an individual
25 Q. Yes, well we perhaps don't need to worry about the
1 husband for the moment.
2 So that's user. F is shop unit and again, you can
3 confirm there was only one shop unit at this branch?
4 A. That's correct.
5 Q. Then we have the giro number and giro date which
6 emanates from the DWP. And then we have week number,
7 encashment date, day and time, so those are all, as it
8 were, mechanical features setting out the accounting
9 week number. The date, for example --
10 A. Can I just step back to the columns that are headed
11 "Giro number and giro date", which, on page 279 of
12 tab 48, the first page of this schedule, are blank in
13 terms of the first 18 items.
14 Now, what that indicates was that that entry is
15 derived from not just DWP but, actually, the giro cheque
16 itself and in circumstances when the giro cheque has
17 gone missing, it is not possible to know the relevant
18 giro number and the giro date and all of the other
19 information on that schedule, with the exception of the
20 last two columns, is derived exclusively from the
21 Horizon system, rather than from directly, DWP.
22 Q. Where the giros were retrieved, we would have the giro
23 date and giro number, wouldn't we?
24 A. Correct.
25 Q. And those matters I have just asked you about, week
1 number and encashment date, day and time, those are
2 mechanical features of Horizon which would pertain to
3 all Post Office business, wouldn't it?
4 A. That is correct.
5 Q. It is Thursday, 25 March. It wouldn't just apply to
6 this, it would apply to any relevant transaction on that
8 A. That is my understanding.
9 Q. Yes.
10 And then we have "Session ID", that is the recorded
11 session number of the transaction, "Mode", which is
12 simply "Serve customer; "Product number", I think you
13 can confirm that when Mrs Cousins was engaged with this,
14 she would look at her Horizon screen and there would be
15 a particular icon which said "Green giro", and she would
16 press that green giro icon?
17 A. That's correct but can I just backtrack to the session
18 ID and highlight the point that the session ID is not
19 a unique session number. In other words, multiple
20 transactions may have the same session ID and if you
21 look in that first batch of 18 transactions, you will
22 quite readily see that that happens. There are two
23 transactions that end 40-1, and there are three
24 transactions that end 689-1, even though they clearly
25 relate to different customers. At different times.
1 Q. Then, let's just finish this list, if we could. The
2 quantity -- that is the amount of cheques entered, and
3 sale value.
4 So what Mrs Cousins does is she presses the green
5 giro, having done her checks to ensure it was a valid
6 green giro and then she would manually enter the amount
7 which is to be handed over to the customer?
8 A. That's correct.
9 Q. Yes. Now, insofar as the processes or procedures are
10 concerned, we have been through what happens when the
11 customer presents the giro and what Mrs Cousins does.
12 And then you will have read her interview, and I could
13 take you to it if needs be, but I am sure you could
14 confirm that Mrs Cousins said that every Wednesday,
15 which was the end of the accounting week, after she had
16 closed at 5.30, she would reconcile.
17 What that means, if we can visualise it, is that she
18 would print out her summary of green giros cashed, let's
19 say, 10 green giros cashed that week and she would
20 compare that with the physical green giros, which
21 I think she said she pinned on the wall and they would
22 match. Horizon says you have paid out 10 and here are
23 10 green giros; yes?
24 A. Ms Johnson, sorry, can we just step back.
25 I may have misheard you but did you cover the last
1 two columns on the schedule at tab 48? The columns that
2 are headed "Name and status" or are you going to cover
3 those later?
4 Q. Well, name and status, that just deals with the author
5 of those schedules, doesn't it, Lisa Allen?
6 A. I think it is a bit more than that. When Ms Allen
7 prepared this schedule, as you are aware, Horizon does
8 not have the facility to record the name of the
9 beneficiary, in other words the person either presenting
10 the cheque or the beneficiary of that cheque, so the
11 name was entered by the investigator, the Post Office
12 investigator, when she did this work. But, as I hope
13 you will agree, the procedure used to do that was deeply
14 flawed and at one level could be regarded more as
15 a guess than anything more definitive. I just want to
16 sort of make that point absolutely clear, that there is
17 an element of doubt as to the accuracy and, indeed,
18 completeness of the entries in the name column, within
19 this schedule -- this very important schedule.
20 Q. Well, you might not be surprised that I don't agree that
21 it is deeply flawed but perhaps a more important point
22 is that is not dependent on Horizon, is it?
23 A. No, this is dependent on the work done by the
24 investigator. The last two columns were not derived
25 from Horizon. I agree with that.
1 Q. Yes. So can we just go back to Horizon, because I was
2 asking you about the weekly reconciliation process, and
3 I suggested to you that if everything is going according
4 to plan, you have your 10 giros paid out, according to
5 the Horizon printout, which you would then be able to
6 compare with 10 physical giros you have pinned on your
7 wall; that is right, isn't it?
8 A. That is my understanding, yes.
9 Q. So if any duplicate transaction had crept in, that would
10 become immediately apparent to the post mistress at that
11 point, wouldn't it?
12 A. Well, bear in mind we are talking about both overclaims
13 and reintroductions. An overclaim is where there is not
14 a corresponding voucher or giro sort of cheque and
15 a reintroduction is I think what you are describing,
16 where perhaps a genuine giro cheque has not been sent to
17 the processing centre and has been held over for
18 a period of time and then resubmitted.
19 Q. Yes, but whether overclaim or reintroduction, that would
20 be apparent when the post mistress did her weekly
21 reconciliation exercise, wouldn't it?
22 A. That is my understanding.
23 Q. Yes, not least because of the formula I put to you, but
24 also, if something had crept in, suggesting that 11
25 giros had been paid out, rather than 10, that would be
1 reflected in the till as well, wouldn't it? Because you
2 would have (Inaudible)?
3 A. Yes. This is, again, one of the features that
4 differentiates this case from some of the others that
5 this court has considered. The overclaim or
6 reintroduction results in a surplus of cash rather than
7 a shortage of cash.
8 Q. Yes. And your words speculated, I suggest, that
9 a phantom transaction bug may have been responsible for
10 this (Inaudible)?
11 A. Yes. I have said that the new evidence of bugs, errors
12 and defects, including phantom transactions, may well be
13 an explanation for the surpluses that were found at this
14 branch or at least contributed to the surplus at this
15 branch, because on both occasions that the Post Office
16 investigator performed an audit, and I am aware that in
17 your skeleton arguments you refer to the accounts
18 balancing, in fact that is not correct.
19 If you look at the witness statement of the various
20 investigators, on the two occasions that an audit was
21 conducted, on one occasion -- and I am referring to
22 tab 24, which is one of the reports of Ms Allen,
23 page 151, a third of the way down that page, the outcome
24 of the audit, and I am quoting, "was a surplus of
25 £4.10", and then on 151 -- sorry, 153, about halfway
1 down, the conclusion was, "This taken into consideration
2 would make the outcome a surplus of £32.91."
3 Again, I accept that those are not the level of size
4 of surplus that I would necessarily expect for either
5 an overclaim or a reintroduction but I just wanted to
6 get that point on the record, that when the audit --
7 when both audits were conducted, rather than finding
8 a shortfall, they did in fact confirm that there was
9 a surplus on both occasions.
10 Q. But on both occasions, extremely small amounts; yes?
11 A. I would agree small amounts, yes.
12 Q. And in fact, Mrs Cousins pleaded to an amount over
13 £13,000, so nothing approaching that level.
14 A. Bear in mind that was £13,000 over something like 18
16 If you look at the weekly cash declarations which
17 are in the bundle as well, I think, you will see that
18 the turnover of this branch was in excess of £50,000
19 every week. In some cases it was as high as £100,000.
20 So very substantial transactions were taking place.
21 I would argue that bearing in mind the volume and the
22 value of transactions, it would be relatively easy for
23 an overclaim or a reintroduction to occur and the
24 associated surplus to be lost in the overall sort of mix
25 of evidence.
1 In fact, this was very much the position adopted by
2 Post Office. When they first looked at the results of
3 the possible problems, they concluded, and I am quoting
4 from another document that is not in the bundle,
5 I think, which was an email from the finance centre
6 known as P and BA, regarding the missing giro pouches,
7 and I am quoting, "Hertford Heath had numerous giros
8 missing, £12,000 total this year, not consecutive weeks,
9 not frequent enough to notify security and
10 an investigation but approximately one per month."
11 In other words, it appeared to be the position that
12 this was pretty close to falling within the category of
13 business as usual, rather than an exceptional fraud
15 Q. Well, Mr Henderson, I don't want to get diverted into
16 (Inaudible) that are not going to be essential to this
17 point but that is not how things developed. We know
18 that Giro Bank contacted the Post Office because of the
19 quantity of giros that had not been received by them.
20 And there followed, it has to be said, (Inaudible)
21 taking place which led to this confusion. That can
22 hardly be described as business as usual, can it?
23 A. I would agree.
24 Q. Can we just go back, finally, to Horizon.
25 You have speculated, haven't you, that some phantom
1 transaction bug may be responsible. You have no
2 evidence for that, do you?
3 A. Well, we have the evidence from the GLO trials and the
4 findings of Mr Justice Fraser, that bugs, errors and
5 defects, including phantom transactions, occurred.
6 We have got the evidence of Post Office engineers,
7 the Romec engineers of phantom transactions. If you
8 look at page 279, tab 48, and, in particular, the first
9 section, where there are 18 of those(?) cheque
10 transactions sort of listed, none of which are supported
11 by giro number or giro date, I would speculate,
12 I accept, that it would be entirely consistent with
13 a Horizon bug error defect, including a phantom
14 transaction, that if such a phantom transaction
15 occurred, it would be, in effect, identical to any one
16 of those 18 entries.
17 That is my concern about the potential impact of
18 what is now known -- and I think it is accepted as new
19 evidence -- of bugs, errors and defects.
20 Q. The phantom transaction bug, as found by
21 Mr Justice Fraser, was operative in 2001, wasn't it?
22 A. That is my understanding. But bear in mind bugs, errors
23 and defects can manifest themselves in many different
24 ways and at this stage removed, we are looking at
25 a potentially unreliable technology and, yes, it is
2 Who knows whether such bugs, errors and defects
3 could have had the consequence that I have highlighted.
4 Q. But let's take it at its absolute highest, Mr Henderson.
5 There was some unknown bug operative here; that would
6 have been immediately apparent to Mrs Cousins, each week
7 when she had to reconcile that the printout along with
8 the giros in the pouch and that was sent off via the
9 postman the following day. It would become apparent
10 immediately, wouldn't it?
11 A. Not necessarily, and the reason why I say that is I mean
12 I have listened to the testimony of well over 100
13 sub-postmasters. A very frequent event was a problem
14 occurring and when they raised that problem with the
15 help desk, the help desk would say, "Well, don't worry,
16 it will sort itself out next week or the week after".
17 That was a very frequent response from the sort of
18 Post Office to problems.
19 So I am speculating but I could envisage a situation
20 where, if Ms Cousins found that there was a transaction
21 listed by Horizon that was not supported by one of the
22 giro cheques, she might feel, "Well, don't worry about
23 it, it is going to reverse itself or be resolved next
24 week". That was what many sub-postmasters were told
25 quite frequently.
1 Q. There is no evidence from the calls made by this
2 sub-postmistresses to that effect?
3 A. There may well be no calls but that may have been in her
4 mind at the time, that an apparent discrepancy would
5 resolve itself automatically, perhaps the following
7 Q. But the difference here is not only, as I have
8 suggested, would any Horizon problems be apparent but,
9 more significantly than that, this type of overpayment
10 reintroduction fraud depends on other features, such as
11 the giro cheques, the evidence of the customers and the
13 You have your criticisms of that, which we
14 appreciate, but those were all features of this case,
15 weren't they?
16 A. I am sorry, can you repeat that?
17 Q. Appreciating as we do, having read in your report that
18 you have criticisms as to the way the investigation was
19 conducted, but nevertheless it depended on the physical
20 giros and the copies thereof, the customers who said
21 "I never went in and cashed two in one go", and the
22 pattern that that demonstrated. Those were all features
23 of this prosecution, weren't they?
24 A. They were, but at the same time, and referring back to
25 page 279, the first 18 items, the first 18 entries on
1 that schedule are not supported by physical vouchers or
2 green giros. They are supported exclusively, or almost
3 exclusively, by information derived from Horizon.
4 What I am saying is I am quite concerned about the
5 reliability of a prosecution that is relying on, in
6 effect, a single source of evidence in relation to those
7 items. A combination of that, together with the flaws
8 in the identification of beneficiaries, causes me
9 further concern.
10 Q. Finally, as you have set out in your report, of course,
11 this type of fraud, overclaim and reintroduction fraud,
12 happened before Horizon was installed anywhere in the
13 country, wasn't it?
14 A. It certainly -- yes, I think that is correct. That is
15 not something I have addressed but Post Office in their
16 evidence certainly refers to both overclaims and
17 reintroductions as not necessarily being a new type of
19 MS JOHNSON: Thank you.
20 LORD JUSTICE HOLROYDE: Yes, thank you.
21 Mr Moloney.
22 Re-examination by MR MOLONEY
23 MR MOLONEY: Thank you very much, my Lord.
24 Mr Henderson, in your experience, does Post Office
25 or does it not use P&A as a generic term to incorporate
1 green giro?
2 A. The research that I did showed that P&A, or P&A
3 vouchers, was often used as an overarching term to
4 include all elements of ultimately payments on behalf of
5 the Department of Work and Pensions.
6 Q. It was put to you, well, you were asked, would you be
7 able to disagree with the proposition that green giros
8 were checked more frequently than P&A, do you remember
10 A. I remember that being put and I think my response is
11 I do not know, because I was then unable to have that
12 dialogue with an expert from the respondent.
13 Q. Have you ever seen any evidence from Post Office Limited
14 or anywhere else that green giros were checked more
15 frequently than P&A?
16 A. I think I would have to answer that, you know, the
17 absence of evidence is not evidence of that proposition.
18 So the short answer is I don't know.
19 Q. The reconciliation process described by Ms Johnson,
20 outlined to you, does that in your opinion preclude
21 Horizon having impacted the figures used for this
23 A. I am not sure we really got to the bottom of the
24 reconciliation, what was meant to have occurred. What
25 is unclear is how frequently that reconciliation process
1 happened, and (Inaudible) with that. I am speculating
2 that the detailed reconciliation between entries
3 generated by Horizon and transactions received or
4 processed by the Department of Work and Pensions was not
5 as frequent as it perhaps should have been.
6 I mean we were told that the so-called rota checks
7 were so infrequent that individual branches would only
8 be checked as infrequently as once per year, which seems
10 Q. If may be that my question wasn't clear and that you
11 thought I was asking about reconciliation between
12 Post Office and DWP to Giro Bank. I was asking you
13 about the questions Ms Johnson asked you about
14 Ms Cousins' process of reconciliation each week.
15 A. Which was the matching of the printout from Horizon with
16 the physical giro cheques in her possession.
17 Q. That's it, Mr Henderson. So I will ask you that
18 question again, if I may, and ask you, does that
19 reconciliation process, as described by Ms Cousins in
20 interview and repeated before the court this morning by
21 Ms Johnson, does that preclude Horizon of having
22 impacted the figures used for this prosecution or not?
23 A. I think the answer that I gave was that Horizon was well
24 known for producing evidence or transactions that
25 resolved themselves, maybe the following week or
1 sometimes later. What I don't know is whether that
2 occurred with Ms Cousins or how she reacted to it, but
3 I am certainly aware from many interviews with
4 sub-postmasters that that was generally a frequent
5 experience of many of them.
6 Q. Could this court be sure, in your opinion, or not, that
7 each of the transactions in the schedule at tab 49 were
8 unaffected by Horizon?
9 A. I think the short answer is no.
10 The new evidence about bugs, errors and defects,
11 bearing in mind in particular the schedules where
12 transactions are not supported by physical giro cheques,
13 I have concern about the reliability of Horizon evidence
14 in those circumstances.
15 Q. Now, I may be in danger of asking you a question as to
16 the ultimate issue in this case by asking this question
17 and I will stop if I am asked to, but the court may be
18 assisted by your opinion in any event.
19 Was Horizon data in your opinion essential to the
20 prosecution of Ms Cousins' case or not?
21 A. I believe it was essential for the reasons I have
23 Q. And what, just if I may seek the indulgence of court,
24 for you just to reiterate what those reasons were,
25 please, Mr Henderson?
1 A. The reasons are, I think, self-evident from the schedule
2 produced by the Post Office investigator, that almost
3 all of the entries, with the exception of giro number
4 and giro date, were derived from what is now accepted to
5 be an unreliable computer system, in other words
7 MR MOLONEY: Those are all the questions I had, my Lords and
8 my Lady, unless the court has any questions.
9 LORD JUSTICE HOLROYDE: Mr Henderson, there is one matter
10 I would just like to have your help with, to clarify my
11 own understanding.
12 As I understand it, one suggested way of
13 a sub-postmistress getting money from a Post Office
14 involved receiving a giro cheque from a customer, paying
15 out to that customer and then not remitting the giro
16 cheque to Bootle bank, but holding it back and putting
17 it through the system a second time the following week
18 in order to pay herself some money.
19 Have I correctly understood the mechanism of that
21 A. Yes, that seems to be a combination of, in the first
22 instance, an overclaim, where a payment is made to
23 a customer but without the associated document, the giro
24 cheque, being submitted to what I think Ms Johnson
25 described as Bootle, the Alliance & Leicester processing
1 centre; and then the second week, or subsequently, that
2 retained document, the giro cheque, being presented
3 a second time, the cash being withdrawn by the
4 sub-postmaster and it is only on that second occasion
5 that the document, the giro cheque, would be sent off in
6 the weekly bundle to Alliance & Leicester or Santander.
7 LORD JUSTICE HOLROYDE: Thank you. That is what I wanted to
8 clarify. Thank you very much.
9 Unless anybody has any questions arising out of
11 MR MOLONEY: No, thank you, my Lord.
12 LORD JUSTICE HOLROYDE: Well, Mr Henderson, thank you. That
13 completes your evidence. You are of course perfectly
14 welcome to continue to observe and listen remotely if
15 you wish to do so.
16 A. Thank you very much, my Lords, my Lady.
17 LORD JUSTICE HOLROYDE: Mr Moloney, is that a convenient
18 point for to us break?
19 MR MOLONEY: It is, my Lord. I have less than 10 minutes'
20 submissions to conclude this appeal.
21 LORD JUSTICE HOLROYDE: Thank you.
22 Just looking ahead, in does look reasonably clear --
23 famous last words -- that we will finish the hearing
24 this afternoon. That being so, could I give a gentle
25 reminder that we await the figures for the prosecution.
1 MR ALTMAN: Those are in train. Ms Carey is in command and
2 she can tell your Lordship where we are -- she is always
3 in command, I have to say, together with Ms Johnson.
4 LORD JUSTICE HOLROYDE: All right, thank you very much.
5 2.00, please.
6 (12.58 pm)
7 (The Luncheon Adjournment)
8 (2.00 pm)
9 LORD JUSTICE HOLROYDE: Yes, Mr Moloney.
10 Submissions by MR MOLONEY (continued)
11 MR MOLONEY: My Lord, we respectfully submit in conclusion
12 that the court should decide that Horizon data was
13 essential to the prosecution of Mrs Cousins, for the
14 following four reasons which I will take very briefly.
15 Firstly, the procedures for processing P&A vouchers
16 were flawed. There was no evidence that they were any
17 better or that there were any more frequent checks in
18 respect of green giros and whilst Mr Henderson was ready
19 and willing to accept that that may be the case, there
20 was no expert evidence to support that assertion before
21 the court. His readiness may in fact be consistent with
22 the view taken of him by the Honourable
23 Mr Justice Fraser in the GLO proceedings, where it was
24 found that the common issues, judgments at page 472,
25 that he was a careful and honest witness and we say that
1 that was reflected in his evidence before the court
3 The second reason is that the reality of those
4 procedural flaws, as far as dealing with the P&A
5 vouchers was concerned, was borne out by the fact that
6 reliance had to be placed by Lisa Allen in the schedule
7 behind tab 49 on similar amounts being attributable to
8 the same person. In fact, the same amounts being
9 attributable to the same person. That was the
10 underlying rationale for a central aspect of the case
11 and that underlying rationale is, as my Lords and my
12 Lady have seen in the skeleton argument from the
13 respondents in this case, now expressly conceded to be
15 That concession reinforces the potential for
16 duplicates to have been due to Horizon malfunction
17 within that schedule. That is our third reason, and our
18 final reason is that that becomes all the more relevant
19 in the context of the numerous other evidential failings
20 reflected in our skeleton argument, set out in our
21 skeleton argument, and then reflected in the basis of
22 plea agreed between the appellant and the respondent at
23 trial, where it was accepted that she was away for one
24 of the transactions, overseas, and that there were other
25 evidential flaws, as far as a number of the counts were
2 In all the circumstances therefore, we respectfully
3 ask the court to quash the convictions of the appellant.
4 LORD JUSTICE HOLROYDE: Thank you very much, Mr Moloney.
5 Yes, Ms Johnson.
6 Submissions by MS JOHNSON
7 MS JOHNSON: My Lords and my Lady, in our submission the
8 appellant has not demonstrated that Horizon reliability
9 is essential to this case. Before I develop that any
10 further, it is critical to understand the nature of the
11 fraud in this case and may I invite the court to the
12 opening note, which was presented in the case. You will
13 find that behind tab 6 in our case summary and can we
14 pick it up, please, at the bottom of the first page,
15 (Inaudible). I am going to take a little time on this,
16 because this is the bed rock of the case and
17 an important plank of our argument that Horizon
18 reliability was not essential.
19 Paragraph 4, the thefts involved these giros. The
20 procedure for paying customers who presented a green
21 giro at the Post Office branch is explained as follows,
22 in counsel's opening note and over the page:
23 "Green giros are a method of payment used by the
24 Department for Work and Pensions. Giros are sent out by
25 post to customers and each giro has a date on it showing
1 the earliest date when it can be cashed. When a cheque
2 is presented at a counter for payment, the clerk must
3 check it is a valid claim. Cheques are valid for
4 a month. The clerk checks that the words and numbers on
5 the cheque agree and ...(Reading to the words)... proof
6 of identity, if necessary. The cheque must be signed on
7 the reverse by the payee, the agent. The clerk date
8 stamps the giro on the front and then enters the amount
9 into the office computer system by touching a green giro
10 icon on the screen and then the screen shows the amount
11 to be paid to the customer, the cash is handed over and
12 the transaction is completed. The giro is retained by
13 the clerk in their stock."
14 It then goes on to explain the Post Office's
15 accounting week ran from Thursday to Wednesday, and
16 again, we have heard from Mr Henderson, this is critical
17 in our submission, the process at the end of each
18 accounting week, that the SPM checked the actual green
19 giros physically present as against the Horizon summary
20 entered into the system. It should be the same. Once
21 the cheque was made, summary to be placed at the front
22 of the bundle, ID (Inaudible) completed and then the
23 bundle is tied up ready to be sent off the following
25 As the court is aware, there are two forms of fraud
1 at play in this case, overpaying and reintroduction.
2 Again, it is important to fully appreciate the nature of
3 those frauds. Turning to paragraph 8, please, as stated
4 in the opening note, Chesterfield data showed there were
5 a number of weeks where giro transactions were being
6 performed (Inaudible) but they had received no giros at
7 all. I underline that because that is important. This
8 is not one or two giros missing; each week when this
9 fraud was perpetrated, no giros and again, we submit
10 that is important when one considers the impact or
11 non-impact of Horizon.
12 They wanted these missing pouches to be investigated
13 and, of course, the truth was the giros were not
14 missing. Their dispatch was simply being delayed until
15 Mrs Cousins could recash them fraudulently and my Lords
16 and my Lady, that is important because in our
17 submission, both in their effective grounds of appeal
18 and indeed, repeated in their speaking note, the
19 appellant has misunderstood the nature of the Crown's
20 case. By way of example, if you have Mr Moloney's
21 speaking note in front of you, at page 2, 7(n), the
22 whole case rested on an asserted modus operandi whereby
23 the appellant stole the vouchers and reintroduced giros
24 within them.
25 That not right, as is made clear in the opening
1 note. They were simply not dispatched. There was
2 nothing sent to be stolen, as is made clear in the
3 opening note I have just reminded you of.
4 Then paragraph 9 of the summary, page 95, the
5 prosecution's case was that Mrs Cousins had committed
6 the theft by making some overclaims and many
7 reintroductions and then only noticed in slightly later
8 claims that the claim for a giro had never existed.
9 Elsewhere it has been described as occurring in a branch
10 with false payment on Horizon that doesn't remit the
11 associated giro. Then the example is given there. Over
12 the page and, importantly, at paragraph 10,
13 reintroductions, and that is really the focus of this,
14 were explained. A more sophisticated tactic is by the
15 reintroduction of the legitimately cashed giro. Having
16 correctly performed the giro transactions through
17 Horizon, the clerk retains the giro, rather than
18 dispatching it and then recashes it in another week.
19 The giro was date stamped when the reintroduction
20 takes place, and that is important.
21 It is then sent off with a summary and because it
22 appears on the summary and it is date stamped in the
23 appropriate week, it has a legitimate appearance, even
24 though the genuine transaction has taken place in
25 an earlier week. If a genuine mistake had occurred
1 where a cheque was cashed in one week but not accounted
2 for until the next, it would be expected that the
3 Horizon accounts would show a loss for the first week
4 and again in the second. This is because in the first
5 week, cash would have been given out but there would be
6 no document to account for the payment, thus producing
7 a loss. In week 2, there would be a payment document
8 but no money would have been given out, thus producing
9 a gain.
10 So, in effect, there are two sides of the same coin.
11 It is important to understand the nature of the
12 fraud, when one considers the role of Horizon within it.
13 This is self-evidently not a case involving a Horizon
14 generated shortfall, which a postmaster had to make
15 good; this is not a case in which the amount of cash or
16 stock held at a branch did not match what Horizon
17 recorded should be present. This case is dependent on
18 the physical giros, importantly with a signature and
19 with date stamp, the evidence of the customers as to
20 their usual habits and how they would not shore up giros
21 and go in and cash a number in one go. Moreover, their
22 evidence as to their regular day of the week and, from
23 those strands of evidence, the patterns that allowed the
24 prosecution to make out its case.
25 Now, in our submission, the appellant has tried to
1 shoehorn this case into a Horizon matrix by, as
2 Mr Henderson did, arguing that Horizon processes or
3 Horizon capability was flawed. But we would urge the
4 court to look at that with some care, because the design
5 of Horizon, the structure of Horizon, are wholly
6 different questions to the reliability of Horizon.
7 Those shortcomings, such as Horizon didn't allow
8 them to identify the individual customer, they were all
9 known at the time of these proceedings. They have
10 nothing whatsoever to do with the two judgments with
11 which this court is concerned.
12 When one actually analyses the element of Horizon
13 that is in play in this case, and in parenthesis, save
14 perhaps for a robbery or a burglary, almost any case
15 involving the Post Office is going to involve Horizon in
16 some small measure. That is not the question. The
17 question is, first of all, what was the measure and was
18 reliability essential?
19 As you heard from Mr Henderson, the Horizon elements
20 were purely mechanical.
21 Prosecution counsel, in his opening note, described
22 it in this instance as a glorified cash till and with
23 respect, we would suggest that is an accurate
25 Accounting week number, date, day of the week, the
1 time, those are all mechanical features that one would
2 expect in any form of mechanism such as this, and do not
3 have any bearing on the (Inaudible) Horizon reliability
4 was essential.
5 We place great reliance on the system, the system
6 which I have intimated with Mr Henderson, that according
7 to Mrs Cousins -- and perhaps it is so important because
8 in our submission, this evidence, Mrs Cousins' own
9 evidence demonstrates Horizon reliability was not
10 essential. Let's just remind ourselves of what she
11 said. May I invite you to go behind tab 23, where you
12 will find her interview.
13 And picking it up at page 124, please, in the middle
14 of that page, Mrs Cousins is explaining the system:
15 "Most of them are the customers I know. I take the
16 giro, enter it on to Horizon, date stamp it, pay the
17 customer out and pin it to the board I have full of
18 green giros. That is where it stays all week until
19 Wednesday night, when I do the books up and they are put
20 into their envelopes.
21 "So are the giros only done up once a week?
22 "Yes, that is after I close on Wednesday night, when
23 I do all the books.
24 "So you close at 5.30 on Wednesday night, you print
25 off your final giros and then what do you do with them?
1 "I put them into the green pouch. I take two copies
2 off the Horizon system. One I keep in my weeklies, one
3 I put in the folder with the green giros, the green giro
4 docket, Q 6301, in there and then it is handed to the
5 postman Thursday morning."
6 Finally, if you go, please, to page 130 of the
7 interview, two-thirds down the page, Mrs Cousins says:
8 "I can say with my hand on heart, definitely I have
9 never held back on any giros in this office. I do them
10 up religiously every Wednesday and I have done since
11 I started here. I do them up, I check them."
12 At the top of the following page:
13 "I personally do them up every Wednesday."
14 So in our submission, that again is critical
15 evidence, first of all, given those elements of the case
16 that I directly outlined, that this is not a Horizon
17 essential case. The taking in of this (inaudible), even
18 forgetting the speculative phantom transaction bug
19 posited by Mr Henderson, remembering the fact it was
20 only operative in 2001, putting all of that aside, let's
21 say there was some unknown bug, it would make itself
22 manifest at this point and that is, in our submission,
23 critical; critical, given all Mrs Cousins has said.
24 There is no evidence that you have the records of
25 the call(?) log, no evidence whatsoever on that, or
1 indeed (Inaudible) that she ever suffered any problems
2 doing this exercise.
3 Now, criticism has been made as to certain elements
4 of the Crown's case but they are not elements that it's
5 dependent upon Horizon reliability. You might suggest
6 that Horizon could have been designed as a better system
7 in the first place but that is really not for comment.
8 They are not dependent on Horizon reliability and
9 importantly, all these criticisms were available at the
10 time. None of the evidence that has come out of the two
11 judgments affect what was available at that time of
12 these proceedings.
13 In his perfected grounds, Mr Moloney made certain
14 non-Horizon points and I want to deal with them very
15 quickly, if I may, because as you will have seen from
16 our response, we characterise that as really a question
17 of evidential sufficiency, almost akin to a half time
18 submission, and various non-Horizon questions have been
19 raised. First of all, a suggestion that someone other
20 than Mrs Cousins may have been involved in the
21 reintroduction. An assistant was mooted, but that
22 ignores the evidence that I have just taken you to from
23 Mrs Cousins' interview. It was her job. It ignores the
24 statement of her assistant, which is in the bundle.
25 I am not going to take you to it but she was clear that
1 she only worked three mornings a week and had nothing
2 whatsoever to do with that Wednesday evening
4 Fujitsu logs were acquired by the prosecution in
5 this case, to ensure that they could be clear as to the
6 times of when transactions were done and importantly,
7 the proposed plea document, about which I will come on
8 to in a moment, expressly disavows any suggestion that
9 it was Mrs Cousins' assistant. So we would submit, one,
10 that has nothing to do with Horizon, all of that
11 material was available at the time.
12 Again, in his grounds, Mr Moloney relies upon the
13 collection sheets and you will have seen a selection of
14 them in the bundles. Perhaps we could just look at one
15 by way of example. It is a short point. Let me just
16 take the first one, which is behind tab 7, please. This
17 is an example of the collection sheet that was written
18 up by the postman when he came on the Thursday morning
19 to collect the various special items. This is just one
20 example and we will see here that a number of priority
21 items and then other items, you will see -- it is rather
22 faint, but it says giro vouchers and there is one
23 reported here, 26 October 2005, purportedly collected at
24 5.30. The point is made: well isn't that evidence that
25 the pouch was properly put together by Mrs Cousins and
1 handed over to the policeman?
2 Two points arise. First of all, all of this was
3 available at the time, but, secondly and more
4 importantly, as is made clear in Lisa Allen's witness
5 statement, again, which was available at the time, these
6 collection sheets identified giro pouches but as the
7 investigator made clear, that would mean green giros or
8 giro deposits and withdrawals which is a wholly separate
9 series of documents which has nothing to do with this
11 So one cannot safely infer from these documents that
12 the pouch was indeed handed over and subsequently
13 stolen. As I have already said, of course, it was never
14 the Crown's case that they were stolen, but they just
15 did not (Inaudible).
16 So in our submission, all of that evidence
17 demonstrates that this case fundamentally did not depend
18 on Horizon reliability. It is for that reason that we
19 rely on Mrs Cousins' plea, because if it is not
20 a Horizon case, it is therefore not an abuse, the
21 questions of disclosure do not arise and nothing in the
22 fresh evidence viciates pleas of guilty and it is
23 important, in our submission, to remind ourselves what
24 Mrs Cousins pleaded to.
25 Can I just take you, please, to page 102, which is