Application to receive the Clarke Advice part 2

This was made in a written submission to the court on 26 Nov 2020. It is accompanied by an oral submission which was made on 3 Dec 2020.

 IN THE COURT OF APPEAL CRIMINAL DIVISION 

Between:

Post Office 

(respondent)

v

Hamilton and others 

(appellants)

Application to receive the Clarke advice and other documents including transcripts under Criminal Procedure Rules 5.8

My Lords and Lady Justice,

1. I am an NUJ-accredited freelance reporter with a valid press card. My work on the Post Office has been published by the BBC, Private Eye Magazine, and the Daily Mail.

In 2018 I set up a website to report the Bates v Post Office High Court group litigation called www.postofficetrial.com. The website continues to document the fallout from the litigation. I am also using it to document the current proceedings at the Court of Appeal.

2. As set out below, there is a considerable public interest (over and above the usual public interest in ensuring open justice) in the circumstances of these proceedings. 

The goal of this application is to ensure that the public is able to properly follow this important trial, and thereby to secure the ends of open justice.

First application

3. As the court is aware, at 9.05pm on Tuesday 17 November 2020 I made an application  under Criminal Procedure Rules 5.8 to receive:

- the CCRC Statement of Reasons, 

- all the appellants’ Grounds of Appeal,  

- any supplementary submissions filed to the Court, and

- all the Post Office’s responses filed to the Court and transcripts of proceedings. 

I explained I would use the documents to better aid the media’s reporting of this and subsequent Court of Appeal hearings, inform the many interested parties who cannot attend court either in person or remotely, and better aid public understanding of the issues at stake.

4. As part of the first application I also asked the court (given the number of legal firms involved in proceedings) to:

- mandate all the parties to supply me with a named contact the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases 

- indicate that any requested documentation/evidence should be supplied to the media in the interests of open justice unless the parties or the court felt there was an overriding reason why it shouldn’t.

5. At 9.20pm on 17 Nov I sent a copy of my application to the Post Office press office and the solicitors I had contact details for. I told the recipients of my covering email that I was happy to discuss my application before the hearing began. 

6. At 10.30am on 18 Nov the court dealt with my application without an order, making it clear that once Mr Altman QC had read a few paragraphs from the CCRC’s Statement of Reasons it should be supplied to the media.

7. The court also indicated that the media should request documents from the relevant parties, and any dispute over supplying them could be referred back to the court for resolution.

8. The issues of the parties supplying named media liaison contacts and transcripts was not addressed.

Background to the second application

10. Immediately after the court had dealt with my first application, the 2013 Clarke advice was raised in court, first by Brian Altman QC and later by Paul Marshall, a barrister representing three Subpostmasters.

Brian Altmann QC said: 

“It [the advice] said that Dr Jennings – this is actually Mr Gareth Jenkins, an expert witness – in many of the prosecutions may have failed to disclose information, that he was well aware of, that Horizon has bugs and errors in it.”

11. At 12.36pm the Post Office press office sent me the CCRC Statement of Reasons.

12. At 1.13pm I applied to the Post Office press office for the Clarke advice and the Post Office documents outlining their response(s) to the CCRC’s Statement of Reasons and any subsequent Grounds.

13. At 2.04pm I received two Respondent’s Notices from the Post Office.

14. At 7.50pm I published a report on my website called: “What’s in the 2013 Simon Clarke document?” https://www.postofficetrial.com/2020/11/whats-in-2013-simon-clark-document.html 

15. On Thursday 19 November at 12.38pm I chased the Post Office for a response to my application for the Clarke advice and was told at 2.48pm the same day that the Post Office was still considering my request. 

16. At 9.14am on Friday 20 November I received an email from Lord Arbuthnot. 

Lord Arbuthnot forwarded to me a letter he had sent that morning to the Business Minister Lord Callanan, which stated:

“On Wednesday 18 November the Court of Appeal considered a piece of advice written by a barrister, Simon Clarke, in 2013 for the Post Office.  According to Brian Altman QC, acting for the Post Office, this advice - which was apparently to the effect that the evidence of Gareth Jenkins (a former senior Fujitsu Horizon engineer) was wrong - was disclosed to Aria Grace solicitors (acting for three appellants) by Peters and Peters solicitors (acting for the Post Office) last week.  As you know, the judge in the Horizon litigation referred Mr Jenkins’’evidence to the DPP.

In 2013 I and other MPs were in full flow of the discussion with Paula Vennells and Alice Perkins about the unsafe nature of the Horizon convictions.  We should have been told about this document, but I have not yet seen it.  Please will you immediately send me a copy, and place it in the library of both Houses?”

17. On Friday 20 November at 9.59am I received the following from the Post Office press office:

“we will not be sharing the document with the media at this time. As the Court indicated on 18 November, you may make an application to the Court for access to the document under CPR Rule 5.8(7)-(8).”

18. At 3.28pm on the same day, I made a further appeal to the Post Office to release the Clarke advice, seeking clarification as to whether it was unwilling to release the advice or  felt legally unable to.

19. At 5.16pm on Friday 20 November I emailed an EX107 form to Jennifer Lund, Senior Legal Manager at the Criminal Appeal Office, seeking permission to buy the transcripts of Wednesday’s and Thursday’s hearings.

20. At 6.01pm Ms Lund kindly supplied me with the ruling given on 19 November and asked if I still wanted full transcripts of both days. I confirmed that I did (acknowledging I understood this would be at my own expense) and she told me she would forward my EX107 application form to the relevant office.

21. At 9.40pm on 20 Nov, Nick Vamos, a partner at Peters and Peters solicitors, emailed me on behalf of the Post Office to say:

“POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice. Therefore, your application to see the document will need to be decided by the Court.”

22. At 5.11pm on Saturday 21 November I received another email from Lord Arbuthnot forwarding a second letter he had sent at 4.45pm on 21 Nov to Lord Callanan’s office, this time cc-ing the Lord Speaker and the Speaker of the House of Commons. In it, Lord Arbuthnot stated:

“On 3rd February 2015 the BIS Select Committee took evidence in their inquiry into the Post Office Mediation scheme.  Part of that evidence was a written submission from the Post Office, although they also received oral evidence from amongst others the Chief Executive of the Post Office.  Paragraph 11 of that written evidence (http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/business-innovation-and-skills-committee/post-office-mediation/written/17827.pdf ) reads as follows:

“At the start of the Scheme, both Post Office and the Justice for Subpostmasters Alliance made clear that mediation cannot overturn a conviction. This can only be done through established Court procedures. Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant. It takes its responsibilities in this regard very seriously and Post Office’s investigations have been carried out with this important duty firmly in mind. Post Office writes to everyone who has suggested they have or have seen evidence that a  conviction is unsafe and asked them to disclose this so that it can be acted on. To date no such evidence has been provided.”

I suggest that the contemptibly late disclosure of the advice of Mr Clarke – something that should have been in the public domain in 2013 – establishes that the Post Office lied to, and was in contempt of, Parliament. The above quoted paragraph of the Post Office’s written advice was only one of many instances of this. I should be grateful if you would consider my request for the immediate publication of the advice in the light of this.”

23. This seemed to me to be an extremely serious allegation. In the light of it I emailed the Post Office press office and Mr Vamos on 22 November asking the Post Office:

a) to respond to allegations it had lied to parliament,

b) to reconsider its position on releasing the Clarke advice so that we could all see why so many people considered it important.

24. On 23 November I was told again by Mr Vamos that the Post Office would not be releasing the Clarke advice. I also received a comment from the Post Office press office re Lord Arbuthnot’s allegation. It was: “It is not for the Post Office to comment on direct correspondence between Parliamentarians.”

25. On 23 November I published a piece called: “Peer accuses Post Office of lying” (https://www.postofficetrial.com/2020/11/peer-accuses-post-office-of-lying.html).

26. On 24 November I asked Ms Lund if I had been given permission by the court to receive transcripts of the hearings on 18 and 19 Nov. Ms Lund told me the same day she had not yet heard back from the relevant office and would ask a colleague to chase it on my behalf.

27. As of 10.30am on Thu 26 November I do not have the Clarke advice and I do not have the transcripts of the 18/19 Nov hearings (nor do I know if I will get permission to buy them).

I also don’t know if I am going to receive any supplementary Grounds or additional material from the some of the appellants solicitors because I don’t know if such Grounds exist, and in some cases I don’t know who to ask to find out if they are willing to supply them. 

28. I am hoping the following application will at least help provide me with some of the documentation I am looking for and offer the media and parties a clear, court-approved path for requesting and receiving documentation going forward.

Application to the Court to Receive the Clarke advice and other documents

29. Part 5B.1 of the Criminal Practice Directions 2015 (updated May 2020) states:

“Open justice, as Lord Justice Toulson recently re‐iterated in the case of R(Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, is a ‘principle at the heart of our system of justice and vital to the rule of law’. There are exceptions but these ‘have to be justified by some even more important principle.’”

30. Part 5B.9 states:

“The court will consider each application on its own merits. The burden of justifying a request for access rests on the applicant. Considerations to be taken into account will include:

… v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a ‘public watchdog’, by reporting the proceedings effectively;”

31. Part 5B.26 states:

“Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media… then there is a greater presumption in favour of providing the requested material in recognition of the press’ role as ‘public watchdog’ in a democratic society (Observer and Guardian v United Kingdom (1992) 14 E.H.R.R. 153, Times November 27, 1991). The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to”

32. On the above and following basis I would be most grateful if the court would order the parties to release the Clarke advice.

33. The Clarke advice was attached to a submission to the court made by Aria Grace Law on 16 November 2020, it should therefore qualify for release under Rule 5.8, CPD 5B.12 and 5B.13

34. It is also a document which has been referred to in open court. Cape Intermediate Holdings Ltd v Dring [Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, the Supreme Court] - citing principles set out by the Court of Appeal in the Guardian News and Media judgment - said the court should consider an access request if the material was placed before it for the case and has been referred to in the court’s public proceedings, even if the material was not read out in court or treated as read out, or not read by the judge during the proceedings; and that where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong (pars 37, 38 and 44 of the Cape judgment)

35. My request as regards the Clarke advice is not only to ensure fair and accurate reporting of the appeal proceedings, but to enable

“the exposure of ‘matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case” [Harman v Secretary of State for the Home Department [1983] 1 AC 280 (HL), 316]. 

36. The Clarke advice has also become a matter of significant public interest. As well as its relevance to what has happened to the former Subpostmasters whose lives were blighted by prosecutions, it is potentially relevant to:

a) an ongoing criminal investigation,  

b) a complaint to the Speakers of both Houses of Parliament

c) potential contempt proceedings at the Court of Appeal

37. With regard to point 36 a), the court has already (on 18 Nov) asked the media to be mindful of its "general need on their part to avoid reporting anything which may prejudice the ongoing investigation or any charges which may flow from it.” 

The media has been so mindful, and can be guided or restricted by the court in this respect as regards what should be published. Any charges in that investigation do not appear to be imminent. If they are not, the law would not normally permit a reporting restriction to be placed on publication of what is in the Clarke advice document to prevent such prejudice. 

The Law Commission, in its consultation paper 209, Contempt of Court, defined imminent proceedings (citing Attorney General v Sport Newspapers and others [1992] 1 All ER 503) as being proceedings “virtually certain to take place”. If this is the stage of any relevant criminal proceedings, I am not aware of that.

38. With regard to point 36 c), making the document public now will have little or no bearing on any contempt proceedings. Indeed, from the correspondence I have had, referred to above, it seems that were it not for the contempt claim made by the Post Office on Wed 18 November, it is likely the Clarke advice would have already been supplied to the media and made public. 

39. Contempt proceedings regarding the circulation of the Clarke advice should not be permitted to have a bearing on its release to those who are legitimately requesting it, especially when considering the interests of “advancing the open justice principle, including enabling the media to discharge its role”. 

40. It is acknowledged the Post Office has made no attempt to ask the court to impose reporting restrictions on the Clarke advice, thus far. In direct correspondence with me it has already said:

“POL wants to be open and accountable and share information with the media as far as it is able to do so, but the Court of Appeal has made it very clear that it wishes to regulate any further public disclosure of the Clarke advice.”

41. The document in question will throw light on the decision-making process at the top of the Post Office. It will reveal how important information available to senior Post Office staff was dealt with at the time of the Post Office Mediation Scheme in 2015, and the High Court group action, Bates and others v Post Office Ltd.

42. It will also help inform the independent public inquiry, chaired by retired judge Sir Wyn Williams, who has promised a “thorough and rigorous” examination of the evidence. 

Ministers have said the aim of the inquiry is so “we can ensure the right lessons have been learnt, and establish what must change to make sure this cannot happen again”. [Gov.uk, https://www.gov.uk/government/news/retired-high-court-judge-to-lead-post-office-horizon-it-inquiry, accessed: 25/11/2020)] 

43. Taken as a whole, the Clarke advice seems to be an exceptionally important document to the wider public discourse, and it is in the court’s gift to give, especially when considering the interests of “advancing the open justice principle, including enabling the media to discharge its role”.

Other documents and information

43. I would also be grateful if the court would:

a) order all the appellants’ solicitors who haven’t yet done so, to release to the media any additional Grounds or supplementary material they have lodged with the court to support their clients’ cases (see CPD 5B.12 and 5B.13).

b) order all parties (who haven’t done so already) to provide the media with a named contact representatives of the media can approach to request any documentation/evidence which is referred to during this and any subsequent Court of Appeal hearings pertaining to the Subpostmaster cases.

c) give the media permission to buy or receive transcripts of the 18 and 19 November hearings, and transcripts of all subsequent hearings related to this case  going forward (ref CPD 5B.29)

d) allow the media to receive any written and/or orders/rulings made by the court once approved (ref CrimPR 5.8(4)(a) and CPD 5B.31).

44. Given the strong public interest in open justice, the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during hearings [Cape Intermediate Holdings Ltd v Dring [2019] 3 WLR 429, endorsing R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618.]. 

45. Where an applicant seeks such documents for a serious journalistic purpose, the Courts should assist rather than impede such a request, unless some strong contrary argument can be made out.

46. This default approach applies strongly in this application. There is a strong public interest in reporting these proceedings in full. Transcrips, documentary evidence and written arguments will give the public an insight into the case put forward by the appellants and help to ensure better understanding of the issues in these proceedings. Presenting this information, effectively, to the public will help to capture the public’s attention and thereby ensure public awareness and scrutiny of these proceedings. 

45. Responsible journalists, and their editors, know best how to present material in a way that will interest the public and so help the public to absorb the information. Where a journalist credibly asserts that they are hampered in their ability to report as fully as they would have wished, the court should be cautious about making what would really be an editorial judgment about the adequacy of material already available to a media organisation. This reflects Lord Rodger’s warning: “Judges are not newspaper editors” [Guardian News and Media Ltd [2010] 2 AC 697, per Lord Rodger, par 63]

46. These are long-awaited proceedings, which carry the utmost importance for the appellants, who in some cases have waited more than a decade for the chance to clear their name. 

47. In addition, the Post Office is wholly-owned by the taxpayer, has been supported by £2.4billion of public money in the last decade, and which has a Government official on its board. [UK Government Investments website, https://www.ukgi.org.uk/workcs/case-study-post-office-limited/ , (accessed: 25/11/2020)] 

48. Open justice can assist in ensuring that the Court process works effectively [Scott v Scott [1913] AC 417, Lord Shaw, 477]. It makes uninformed and inaccurate comment about Court proceedings less likely [R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966, per Lord Woolf MR, at 977].  It can result in evidence becoming available which would not otherwise become available [ibid].  

49. I intend to be in court on 30 November to live-tweet and then write up the scheduled hearing. I am very much hoping HMCTS staff will be able to find a space for me in the well of the court so I am properly able to hear what is going on. Either way I will be available if the court wishes to me to clarify anything with regard to this application. 

I remain your humble and respectful servant, 

Nick Wallis

26 November 2020

Nick Wallis

@nickwallis
www.postofficetrial.com

Peer accuses Post Office of lying

Baron Arbuthnot of Edrom

The fallout from Wednesday's Court of Appeal hearing continues. Lord Arbuthnot (pictured above) has written to the business minister in the Lords, the Lord Speaker and the Speaker of the House of Commons alleging the Post Office has "lied" to parliament.

Lord Arbuthnot bases his accusation on what he knows about advice given to the Post Office in 2013, and written evidence given by the Post Office to the Business, Innovation and Skills select committee in 2015. The 2013 advice was written by a barrister called Simon Clarke and was discussed in court last Wednesday.

In 2015, the Post Office told a BIS select committee inquiry:

"Post Office is under an absolute duty to disclose any evidence that might undermine a prosecution case or support the case of a defendant…. To date no such evidence has been provided.”

Lord Arbuthnot thinks the 2013 Clarke advice contradicts the above statement, or as he puts it:

"I suggest that the contemptibly late disclosure of the advice of Mr Clarke – something that should have been in the public domain in 2013 – establishes that the Post Office lied to, and was in contempt of, Parliament. The above quoted paragraph of the Post Office’s written advice was only one of many instances of this.”

This is about as serious as it gets. Parliamentarians, as a rule, simply do not accuse people or organisations of lying. Lord Arbuthnot just has. But is he right? Well that all depends on what is in the Clarke advice.

The Clarke advice surfaces

It appears the first anyone outside the Post Office knew about the Clarke advice was on 12 November this year, when it was disclosed to solicitors working for three convicted Subpostmasters - Seema Misra, Tracy Felstead and Janet Skinner.

A barrister, Flora Page, working pro bono for the Subpostmasters, passed the Clarke advice to her brother Lewis Page, a journalist. Lewis Page told the Post Office via email, the night before Wednesday's hearing, he had seen it. The Post Office sent Mr Page's email to their legal team. 

Wednesday's hearing at the Court of Appeal therefore began with Brian Altman, QC for the Post Office, explaining to the three judges why Ms Page's actions might be in contempt of court. 

The judges ordered a special hearing on Thursday, during which it became apparent Paul Marshall, the senior barrister on the same legal team, had separately passed the Clarke advice to the Metropolitan police. 

I did not attend Thursday's hearing, but I have been sent the order made by the court which notes:

"it is, in our judgment, for the court to determine in due course whether there be here conduct amounting to a contempt of court, and, if so, what if any sanction may be appropriate."

The judges then ask the Post Office to:

"assist the court by drafting a provisional formulation of the charge or charges which the court should call upon Ms Page to consider"

adding:

"it is, in our view, necessary that Mr Marshall must now assist the court in relation to the email received today [from the Met]... Mr Marshall should, as soon as practicable, assist the court with these matters."

Paul Marshall

So that's the latest situation with regards to the lawyers who leaked the Clarke advice. It looks as if the Post Office's QC, Brian Altman, is drawing up a charge of civil contempt, to which Ms Page and possibly Mr Marshall may be invited to plead guilty or not guilty.

I have asked Mr Marshall, Ms Page and Mr Page for comment. I have not heard from Ms Page and both Mr Page and Mr Marshall do not wish to say anything publicly at the moment.

Reporting restrictions on the Clarke advice

Before proceedings finished on Thursday, a further discussion was had about the merits of imposing reporting restrictions on the content of the Clarke advice. It went as follows:

MR ALTMAN [for the Post Office]:  The merits are, my Lord, that there is likely to be said much more about the content of that advice, the reasons why it was passed to Mr Page as it was in the circumstances we are now alive to, and secondly, in relation to Mr Marshall, why on two occasions he passed it to the Metropolitan Police.   

Therefore, one cannot exclude the possibility that part of the argument that the court is likely to hear, if not evidence, is the relevance and importance of the contents of the document.  So if that is to be protected ‑‑ and your Lordship will recall me arguing a little earlier that it is not a given that that document would become public; one would have to look at the Criminal Practice Direction ‑‑ then it needs to be protected due to its obvious sensitivity through privilege.

LORD JUSTICE HOLROYDE:  Thank you. Mr Bentwood, do you make any submissions? 

MR BENTWOOD [for Flora Page]:  My Lord, yes.  My Lord will appreciate that yesterday's hearings were being covered by the press.  

LORD JUSTICE HOLROYDE:  They were.

MR JUSTICE PICKEN:  And indeed by Mr Nick Wallis, who live-tweeted much of that which took place and I have since read.

LORD JUSTICE HOLROYDE:  Yes, he did. 

MR BENTWOOD:  So to the extent that the argument is already in the public domain ‑‑ much of it already is ‑‑ there need be, in my respectful submission, no reporting restrictions in relation to today's hearing.  

In relation to future hearings, in my respectful submission that would be a decision properly to be made after your Lordships have heard from the various members of the press who, although not present here today, I know have expressed considerable interest in transparency about that which takes place here.

MR JUSTICE PICKEN:  Your submission is that if Mr Altman is right, and the content of the document needs to be looked at, then that is the stage at which to think about press restrictions rather than now? 

MR BENTWOOD:  Yes, indeed: not to prejudge the issue of restrictions until the courts have properly been addressed as to it.  No doubt when that time comes the court can make an interim restriction, which can be revisited depending upon how the argument develops.

MRS JUSTICE FARBEY:  So you are saying this hearing today is no different in kind to yesterday's? 

MR BENTWOOD:  It is not.  Indeed, the substance of the document has not been ventilated today in any way near the level of detail at all; indeed, I have not read the document itself as yet.

After a little more discussion, the judges rose to consider reporting restrictions, and returned to make the following ruling: 

LORD JUSTICE HOLROYDE:  We do not think any more has been said about the content of the document today than was previously in the public domain, little though that is.  We accept Mr Bentwood's submission that the time to think about reporting restrictions will be if and when a stage is reached where the meat of the content of the Clarke advice is more in focus in the court's consideration.  We therefore do not impose any reporting restrictions in relation to today's hearing.

On Friday, after my second request for the Clarke advice, I received the following from the Post Office:

"At the Court of Appeal hearing yesterday morning, 19 November, the Court noted (without criticism) that some of the content of the document was already in the public domain and there was no current need for reporting restrictions. However, the Court also said that it would keep the need for reporting restrictions under review if and when more of the content of the document was referred to in Court. Therefore, we will not be sharing the document with the media at this time. As the Court indicated on 18 November, you may make an application to the Court for access to the document."

I asked the Post Office for a comment on Lord Arbuthnot's allegation that it lied to parliament. The Post Office says: "It is not for the Post Office to comment on direct correspondence between Parliamentarians."

Abuse of process

The reason we are at the Court of Appeal is because the Post Office engaged in abuse of process (and then spent tens of millions of pounds of taxpayers money at the High Court claiming the campaigning Subpostmasters case "lacks merit"). 

The Post Office says it is now a reformed operation, yet you could argue it appears to be doing two of the things which got it into this mess in the first place:

a) trying to keep important information from the public gaze (see Fraser J's second judgment in Bates v Post Office),

b) using its vast resources and legal firepower to set in motion events which may end up crushing peoples' livelihoods.

That said, the circumstances which arose last week are very different, and on Wednesday, Brian Altman made it clear the Post Office was only bringing the leaking of the Clarke advice to the attention of the court because it believed it had a duty to do so. 

I am very much hoping that if the Clarke advice does prove Lord Arbuthnot's contention that the Post Office lied to parliament, there becomes an over-riding public interest in knowing what it says.

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Fujitsu staff under criminal investigation named

This is part two of a contemporaneous write-up of the first Court of Appeal hearing involving the 47 Subpostmasters referred by the Criminal Cases Review Commission earlier this year. Part 1 is called "What's in the 2013 Simon Clark document?"

After alerting the court to the leaking of a document to a journalist, in possible contempt of court (see above), the Post Office QC, Mr Brian Altman, moved on to the need for a discussion about imposing possible reporting restriction on proceedings.

This, said Mr Altman, was because of the criminal investigations into two Fujitsu Horizon specialists, Gareth Jenkins and Anne Chambers. 

Mr Jenkins (as readers of this website will know) and Ms Chambers have both given evidence about the efficacy of the Post Office's Horizon computer system to various courts. In December last year as he handed down the Horizon Issues judgment, Mr Justice Fraser said:

"I have very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system. These previous proceedings include the High Court in at least one civil case brought by the Post Office against a sub-postmaster and the Crown Court in a greater number of criminal cases, also brought by the Post Office against sub-postmasters and sub-postmistresses.

After very careful consideration, I have therefore decided, in the interests of justice, to send the papers in the case to the Director of Public Prosecutions, Mr Max Hill QC, so he may consider whether the matter to which I have referred should be the subject of any prosecution."

Although Mr Justice Fraser didn't name Anne Chambers or Gareth Jenkins at the time, he did in his confidential letter to the Director of Public Prosecutions, dated 14 January 2020. We know this because it is in the appendix of the CCRC's Statement of Reasons, circulated to journalists today. In his letter, Mr Justice Fraser sets out what Mr Jenkins and Ms Chambers knew and concludes:

"in order to give fully truthful evidence to the court... namely the prosecution of Mrs Misra and the civil claim against Mr [Lee] Castleton, both Mr Jenkins and Mrs Chambers respectively should have told the court of the widespread impact of (at the very least) the bugs, errors and defects in Horizon that they knew about at the time that they gave their evidence."

This letter was sent by the DPP to the Metropolitan Police, who immediately started investigating. Last week, Computer Weekly was told the Met had turned their ten month investigation into a criminal investigation. Today we have discovered the names of at least two of the individuals involved.

After some discussion, Lord Justice Holroyde decided there was no need for any need for any reporting restrictions to be imposed on the Court of Appeal proceedings in the light of the Met's criminal investigation, but reminded the media of the "general need on their part to avoid reporting anything which may prejudice the ongoing investigation or any charges which may flow from it."

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A further Court of Appeal hearing to discuss the CCRC's statement that the prosecution of the appellant Subpostmasters were an "affront to the public conscience" will take place on 17 Dec. The full hearing to quash or uphold the appellants' convictions has been scheduled for the week beginning 22 March 2021 and will last four or five days.

Read part 1: "What's in the 2013 Simon Clark document?"

Read today's tweets from Court 4 of the Royal Courts of Justice in a beautifully curated single web page, here.

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This website is entirely funded by donation. You can contribute any amount through the tip jar via a secure payment portal I have set up for the purpose (click here for more info or to donate).

If you are able to give £20 or more you will be added to the secret email list. This alerts you to upcoming developments on this scandal before they are made public, as well as links to articles and stories posted here on this blog or elsewhere.

What's in the 2013 Simon Clarke document?

Say hey hey to the RCJ

This is part one of a contemporaneous write-up of the first Court of Appeal hearing involving the 47 Subpostmasters referred by the Criminal Cases Review Commission earlier this year. Part 2 is called "Fujitsu staff under criminal investigation named"

Before proceedings got properly underway this morning, Brian Altman, QC for the Post Office, got to his feet and told the three presiding judges that a journalist called Lewis Page, a freelance reporter working for the Daily Telegraph, had been in contact with the Post Office press office. Mr Page has written about the Post Office Horizon scandal before.

Mr Page had apparently indicated to the Post Office that he had sight of a document written in 2013 by a barrister called Simon Clarke. The document (according to my understanding of what Mr Altman told the court today) was about Gareth Jenkins, former Fujitsu Horizon Architect and purveyor of expert evidence at Seema Misra's trial, among others.

According to Mr Altman, Mr Clarke's advice was that Gareth Jenkins had given incorrect evidence to the courts in criminal trials involving Subpostmasters.

Mr Altman said the leaking of this document to a journalist before it had been discussed in open court was serious - a potential breach of the disclosure act and contempt of court. He read out a chronology of events - how and when the document was disclosed by the Post Office and to whom. He pointed out the familial link between Lewis Page and Flora Page, a barrister involved in the proceedings, acting for three of the appellant Subpostmasters. 

Dim view

Flora Page

Ms Page stood up and admitted to the court she had given her brother the Simon Clarke document. This, she explained, was for practical reasons: Mr Page was unable to attend court because he had been informed it was full, so Ms Page had supplied the document to him in advance of it being raised in court. Ms Page told the justices that her brother had no intention of using the document were it not raised in court, but she apologised unreservedly and recognised she should have waited before giving it to him.

The justices took a very dim view of this activity. The senior judge, Lord Justice Holroyde, suggested there would likely be consequences for Ms Page, potentially both legally and professionally. She was told to present herself to the court at 10.15am tomorrow.

Lord Justice Holroyde also asked Ms Page to tell her brother to return/destroy and certainly undertake never to publish any of the document’s contents. This assurance was given.

Big deal

Later on, Paul Marshall, Ms Page’s senior, raised the Simon Clarke document again. He said it was wholly unclear whether or not it had been disclosed to the Criminal Cases Review Commission, as if it had, it would have been extraordinary that it would not be mentioned by the CCRC in its Statement of Reasons - the key document referring the 47 Postmaster cases to the Court of Appeal. Mr Marshall said the Simon Clarke document had only been disclosed to his instructing solicitors, Aria Grace Law, after they had raised a query about a different document disclosed to them in October this year.

There is clearly something hugely important in the Simon Clarke document. If, as I think I inferred from what Mr Altman said this morning, it contains information, written in 2013, that evidence given by Gareth Jenkins in the course of prosecuting Subpostmasters was wrong, it could have massive implications for the safety of those prosecutions.

And of equal importance - if that is what the document contains - why wasn’t Simon Clarke’s advice disclosed to the courts and the prosecuted Subpostmasters’ legal teams years ago? Why did the Post Office sit on it until last week?

I have asked the Post Office to supply me with the Simon Clarke 2013 document under Criminal Procedure Rules (5.8), now it has been raised in open court.

[UPDATE: My application failed - read why here.]

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A further Court of Appeal hearing to discuss the CCRC's statement that the prosecution of the appellant Subpostmasters were an "affront to the public conscience" will take place on 17 Dec. The full hearing to quash or uphold the appellants' convictions has been scheduled for the week beginning 22 March 2021 and will last four or five days.

Read part 2: "Fujitsu staff under criminal investigation named"

Read today's tweets from Court 4 of the Royal Courts of Justice in a beautifully-curated single web page, here.

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The first Post Office Horizon investigation

This is the origins story of the first piece of journalism written about the Post Office Horizon scandal.

In 2008 Lee Castleton was working as an electrician on power stations. He was a former Postmaster at Bridlington, North Yorkshire. The Post Office had taken him to the High Court over a £24,000 discrepancy at his branch and bankrupted him.

Lee was dwelling on what happened. He had contacted Computer Weekly a number of times without much success, but decided it was worth having another go.

The magazine's executive editor at the time was Tony Collins. Tony was responsible for a Computer Weekly investigation which called into question the verdict of the inquiry into the Mull of Kintyre Chinook disaster. 29 people were killed. The inquiry blamed pilot error. 

Computer Weekly found evidence of a potential glitch in the helicopter’s engine control software which could cause the aircraft to increase thrust without warning. The magazine stated:

"Gross negligence can only be brought if there's no doubt whatsoever as to the cause of the crash. In this case, there are too many uncertainties and the evidence that we have highlighted proves that the evidence on which the verdict was based is inconclusive.

We are saying that the verdict of gross negligence is manifestly and demonstrably unsafe."

Tony was right. 

It was not his only success. In 2007 he won an award for demonstrating the NHS national IT system was a dangerous flop.

In September 2008, Tony saw Lee's letter and gave it to Rebecca Thomson, a 26-year old staff journalist on the Computer Weekly team. He asked her to look into the story.

A bit... hello? What?

I first contacted Rebecca seven years after she published her investigation. I felt it was important to find out a bit more about the journalist who had broken the Horizon story. Rebecca was no longer at Computer Weekly and had just taken a job in the corporate world, but she was fairly easy to find on twitter. I sent her a tweet asking if she would be willing to correspond. 

Rebecca did not reply publicly, but followed me, so we were able to message each other in private. We swapped email addresses and I told Rebecca I was keen to chat through her experience of being the first journalist to break the story. 

Rebecca kindly agreed to a telephone call and two weeks later we spoke. The conversation did not go the way I expected. 

Before I could ask any questions about Rebecca’s work on Computer Weekly, she told me she had received a call at work from a senior public affairs exec within her company. That person asked Rebecca if she had been contacted by a journalist with regard to her investigation into Horizon. Bemused, Rebecca confirmed she had. Rebecca’s colleague said he had received a phone call from someone claiming to be from the Post Office, during which he had been reminded that his company counted the Post Office among its clients. It was suggested that Rebecca might like to tread very carefully before upsetting her company’s clients.

An apologetic Rebecca, new in her job, said to me that on the basis of her conversation at work, she didn’t feel able to talk to me about breaking the Horizon story or her time at Computer Weekly. Our conversation ended shortly thereafter.

I was disturbed by this. The tweet I had initially sent Rebecca was innocuous enough, and that was the only communication between us in the public domain. 

I don’t mind the Post Office following me on twitter. I actually asked them to once so I could send a direct message to their Director of Communications. But surely my one public tweet wouldn’t provoke anyone in the Post Office to pick up the phone and speak to Rebecca’s employer. What kind of weirdo would do that?  

The full story

A year later, I tried again. By this time Rebecca had jacked in her job in the corporate world and was back in journalism. She was happy to chat about her experience of putting the Computer Weekly investigation together. Here is what happened:

“Tony passed on Lee’s contact details and I gave him a ring. Lee told me his story, which was heartbreaking. It was quite upsetting talking to him because he’s such a nice man and he’s obviously been broken by this… organisation. 

He had a young family and he just sounded so downtrodden by it all. When I listened to him, he didn’t sound like a crazy, and he had lots of detail - he had his computer log and dates and he just wanted someone to look into his data and see if they could see anything that might have been causing him problems.

Lee also knew other people who had been in a similar situation. He gave me names and contact details, so I started calling around.”

In her piece, Rebecca interviewed seven former Subpostmasters - Lee Castleton, Jo Hamilton, Noel Thomas, Amar Bajaj, Alan Bates, Alan Brown and Julie Ford. 

“Alan Bates became my main source of contact after a while. Because Lee had so much on his plate I started dealing with Alan, who was very helpful.”

Given this story was not in the public domain, the legal risks of printing unproven allegations must have been very high. I asked Rebecca what her biggest concern was: 

“Never mentioning Fujitsu. Because they were the ones who might actually sue. Tony said that because the Post Office was a publicly-owned company it was very unlikely to sue us. That’s what made the story possible to run at all. If it was a private company we were investigating, we couldn’t publish because we couldn’t prove anything. All we had was the testimony of the Postmasters and a handful of experts saying 'Yes this looks suspicious but we have no way of knowing what the actual problems are.'”

In the finished piece all the Subpostmasters blame Horizon and the Post Office’s heavy-handed approach towards them for their varying woes, which include jail, bankruptcy and the loss of significant sums of money. All of them say their union, the National Federation of Subpostmasters, gave them no help whatsoever⁠.

The Post Office’s position is worth recording. Rebecca wrote:

“The Post Office denies it received any complaints from postmasters, and also denies that any IT-related fault could have caused the systems to show incorrect sums of money owed by some postmasters.”

Both parts of that denial are untrue. I have letters from Alan Bates, written to the Post Office, directly complaining about weaknesses in the Horizon system as early as 2000 and Alan Brown’s story (Case Study 6 in Rebecca’s piece) was a real systemic computer fault (it became known as the Callander Square incident) which could and did cause Subpostmasters to be out of pocket⁠.

It was Rebecca’s first investigation as a journalist:

“I got very emotionally involved with it. I just felt sorry for them basically. It’s quite an affecting story. And I think they were used to people like me asking questions about proof, because they’d been desperate to find proof for themselves. Any documentation they had they were very keen to send to me. I spoke to far more Subpostmasters than the case studies we went with in the end. Some were quite clueless, but some were really switched on.

The thing that gets me is that the Post Office should have been looking out for them, really. I know they weren’t actual employees of the Post Office but you kind of assume that a government-run organisation, which is there to provide to you with a living…” 

… she tailed off… 

“It’s just shocking that it could turn around and become so aggressive and could ruin their lives… and how people could end up in these desperate situations by doing comparatively so little. Obviously false accounting is wrong, but they all turned around and said they knew it was wrong, but they didn’t know what else to do.

I guess it was that combination of that desperation and being put in that position by a company that should have been trusted and that you automatically would trust because of what it is. It’s like the NHS turning on people. Institutionally… it’s so… weird in a way.” 

I asked Rebecca what it was like when, after six months of solid work, she got to press the button and push the story into the public domain.

“It was obviously exciting. We’d spent a lot of time getting this right, and so to finally get it out there was great, but we had really been working up to getting this onto the Today programme or having one of the Sunday papers pick up on it. A lot of Computer Weekly investigations had been picked up in the past and we genuinely thought it was a great story. But we put it out there and nothing happened, which was a bit disappointing…” 

Rebecca’s investigation is still up on the Computer Weekly website⁠. 

Although she was disappointed by the initial reaction, Rebecca’s piece had a far-reaching impact. Not least on James (now Lord) Arbuthnot, who read it and immediately set aside his scepticism about his constituent Jo Hamilton, who had been prosecuted by the Post Office for false accounting:

“It galvanised me. During the Chinook enquiry, Computer Weekly had been absolutely fantastic, and the fact that they were on Horizon’s case gave it, in my mind, credibility. I began to think that this was something that I couldn’t let go.”

Rebecca's piece also inspired the first TV investigation, by Taro Naw in the September of 2009, which uncovered yet more Subpostmasters having problems with Horizon.

Of the Postmasters interviewed in the Computer Weekly investigation, I’ve never had a chance to meet Amar, Julie or Alan Brown, but over the course of the last seven years I’ve come to know a lot about what happened to Jo Hamilton, Lee Castleton, Alan Bates and Noel Thomas. 

Alan went on to form the Justice for Subpostmasters Alliance and won an epic High Court battle against the Post Office, which only finished at the end of last year. Noel and Jo are due to have their convictions quashed at the Court of Appeal later this year, and Lee is still working as an electrician, still bankrupt and still fighting without much recognition or recompense for his efforts.

Rebecca remains exceptionally modest about her contribution, but I think she deserves significant credit for doing the job of getting the Post Office Horizon scandal into the public domain. She is, as you might expect, a bit of a hero of mine.

For more notes on the journalism which has reported on the efforts of the Subpostmasters to get justice, see "Credit where due".

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EXCLUSIVE: Business minister asks Dept for Health why Paula Vennells is still running an NHS Trust

Paula Vennells, CBE

Last year, Paula Vennells slipped from office into the warm embrace of the NHS at the exact time the Post Office, under her leadership, was asserting its legal right to treat its own Subpostmasters “arbitrarily, irrationally or capriciously.”*

On 24 December 2019, eight days after the second damning High Court judgment into her organisation's behaviour, a complaint was made to the Care Quality Commission (CQC) by Dr Minh Alexander about Ms Vennells' fitness to chair a large NHS Trust because: 

"The Post Office’s behaviour under Paula Vennells’ leadership was not accountable nor open about its computer problems, and the Post Office instead caused serious suffering to scapegoated subpostmasters, some of whom had been prosecuted and jailed. 

It would be very unsafe for such a corporate culture to be replicated in the NHS, where vulnerable patients would take the brunt of any cover ups."

Now it seems the government has similar qualms. In a letter to the Department of Health and Social Care (DHSC), Lord Callanan (the business minister in the Lords) writes:

"The decisions and conduct of POL [Post Office Ltd] while Paula was CEO were heavily criticised in the Horizon Litigation judgments from last year. This includes:

• attempts to confuse and obscure true facts regarding issues with the Horizon system, specifically during an attempt to mediate issues between the company and postmasters;

• haphazard practices and procedures in the organisation;

• an oppressive culture, behaving with impunity towards postmasters;

• fostering a culture of secrecy and excessive confidentiality, failing to be transparent, when necessary."

Lord Callanan of Low Fell

He concludes:

"I recognise that due process relating to the CQC referral must be followed, but I felt it was important that I made you aware of the background and the level of Parliamentary disquiet on POL’s conduct as set out above, most of which was under the leadership of Paula Vennells and I ask that DHSC considers whether Paula Vennells a fit and proper person to be the Imperial College NHS Trust chair in light of those criticisms."

You can read the original letter in full at the bottom of this blog post. 

I asked the DHSC to send me their response to Lord Callanan and a comment. They replied:

"This matter has been referred to the CQC. We are unable to comment until their investigation is complete."

Earlier this month Dr Alexander chased the CQC to see why she hadn't received any meaningful response to her request for a Fit and Proper Person referral made nearly nine months previously. The CQCs Deputy Chief Inspector of Hospitals Nigel Acheson, wrote back to tell her:

"we have not concluded the FPPR referral and we are making further enquiries with the trust...

I am unable to confirm when the processes will be completed but will keep you updated as and when I have further information to share."

Dr Minh Alexander

I asked Dr Alexander what she thought of this. She replied:

"The Fit and Proper Person process in the NHS is a farce, excessively protracted and exposes staff and patients to serious potential harm. We all depend on the NHS and it needs excellent leaders to safeguard service quality and patient safety. The NHS should not be abused for political favours nor be a dumping ground for recycled executives who have failed elsewhere, and who have a track record of denying serious errors and leading abusive organisations. It is disrespectful to NHS staff and patients that Paula Vennells remains in her NHS position at Imperial, almost a year on from the original referral to the Care Quality Commission."

Dr Alexander doesn't mince her words. Last week, Computer Weekly reported that Imperial College NHS Trust had commissioned its own review into Ms Vennells' appointment. A trust spokesman told Computer Weekly:

"Given our chair’s previous role at the Post Office and the complexity of the situation with the Horizon computer system, we have taken external legal advice to ensure our processes are sufficiently comprehensive. We continue to take into consideration developments in the Horizons legal action and related inquiries since our chair’s appointment.”

The trust hasn't quite yet managed to sort out how it's going to conduct its review, telling Computer Weekly:

"We are currently working up a process to provide an additional level of independent scrutiny. We will publish details of this process once established.”

Dr Alexander notes: 

"It is a failure that an external review is only now being reluctantly commissioned, causing expense and further delay. There can be limited confidence in the external review given that Imperial control the terms of reference. Imperial staff and patients should not be further exposed to potential harm. Dido Harding helped appoint Paula Vennells to Imperial and should show leadership by seeking her resignation in light of all the adverse court judgments, CCRC findings of multiple unsafe convictions of postmasters and the ministerial concerns about Paula Vennells' fitness."

I asked Ms Vennells about Lord Callanan's letter. She told me, through her lawyers, that it would not be appropriate for her to comment.

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* Reasons for Refusing Permission to Appeal the Common Issues judgment: par 26 "The challenge in paragraphs 35 and 38 of the Grounds to the findings that the Post Office was not entitled to suspend and/or terminate SPMs’ [Subpostmasters] engagements “arbitrarily, irrationally or capriciously” can only logically amount to an argument by the Post Office that it was contractually entitled to act arbitrarily, irrationally and capriciously in suspending or terminating the engagement of the SPMs. Such points are not reasonably arguable."

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Letter follows:

Lord Callanan Letter to Lor... by Nick Wallis

Effective scrutiny of the Post Office Horizon IT inquiry

Sir Wyn Williams

Next month, the Post Office Horizon IT inquiry, chaired by retired High Court judge, Sir Wyn Williams, will issue a Call for Evidence.

On 5 October, in response to an email about what it intends to do with that evidence, the inquiry secretariat laid out a number of points. On oral evidence, it said:

"The evidence taken will not be transcribed, but a thorough record of the Inquiry’s progress will be kept and reflected in the final Report." [my emphasis]

And with regards to all the evidence, the secretariat said Sir Wyn Williams' final report:

"will refer to evidence it has relied on, but the Inquiry will not publish the evidence it has received, it will provide a thorough summary of the Inquiry’s findings." [my emphasis]

I replied, expressing my concern, and I forwarded the secretariat's email to a number of parliamentarians who sit on the All Party Parliamentary Group on Post Offices. 

On 13 October, the business minister, Paul Scully, met with the All Party Parliamentary Group. Lord Arbuthnot expressed his disquiet at the inquiry's position. 

On 18 October, I wrote a short piece about the inquiry's clearly stated decision on publishing and transcribing evidence.

On 20 October, I received an email from Sir Wyn Williams stating:

"I plan to make an announcement on or before 6th November about the approach the Inquiry will take to collecting evidence. I am content to receive written representations from you and other journalists by 17:30 on Friday 23rd October 2020. I will consider these representations and... When I make my decision about the process I will acknowledge any representations that have been made."

On 22 October, Mr Scully wrote to Lord Arbuthnot. He said:

"Sir Wyn has been working to develop his approach. I can confirm that to my knowledge he has made no statement about an intention not to publish evidence."

This is only true if:

a) Mr Scully was not aware of the inquiry secretariat's email and my publication of its key points 

b) he considers an email to a journalist from the inquiry secretariat stating unequivocally that "the Inquiry will not publish the evidence it has received" is different to a statement from Sir Wyn himself.

Sir Wyn has now received representations from a number of media organisations - including the Press Association, BBC, Daily Mail, Financial Times, Computer Weekly and Private Eye - all of whom are requesting proper access and the ability to scrutinise evidence.

It will be interesting to see if the inquiry's current position, as stated by its secretariat at the beginning of this month, evolves. 

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Court of Appeal: Battle Royale

When the Criminal Cases Review Commission referred 47 former Postmaster cases to the Court of Appeal earlier this year, it did so for two main reasons.

Reason 1: It believed there were issues of "significance to the safety" of 47 convictions because:

a) the Horizon evidence used by the Post Office was potentially dodgy.

b) the Post Office failed to disclose to Postmasters what it knew about Horizon's reliability.

c) the Post Office did not investigate shortfalls properly before leaping to the conclusion that Postmasters had stolen money (something Second Sight pointed out seven years previously, which the Post Office ignored).

Reason 2: It believed the whole approach to prosecuting Subpostmasters was an "affront to the public conscience", because:

a) it was not possible for Subpostmasters to have a fair trial when evidence about the reliability of Horizon was not presented to court.

b) the Post Office knew it was not possible for Subpostmasters to have a fair trial, but proceeded anyway. 

So what?

Well. It's already widely known that of the 47 cases going before the Court of Appeal, the Post Office has made it clear it rejects the idea that three of the convictions are unsafe. 

What is less widely known is that whilst the Post Office accepts 44 convictions are unsafe, in all but four of those 44 cases, it rejects the idea there has been an affront to the public conscience.

And this is where it gets interesting, because now the appellant Subpostmasters have a choice. 

They could either accept their convictions only are unsafe because of potentially dodgy, uncorroborated and undisclosed evidence (Reason 1), or they could choose to push for a ruling from their Lordships that they were also victims of abuse of process and this whole thing is an affront to the public conscience (Reason 2).

The Noble Cause argument

There are some who say that going for the latter, whilst trickier in the short term, would make it far easier for a malicious prosecution claim to succeed when everything goes back to the High Court (the next battle after the criminal convictions are quashed).

Added to this there is the argument that winning a generic "affront to the public conscience" argument would make the path to the Court of Appeal easier for the 14 cases the CCRC didn't refer earlier this year, the fresh cohort it is currently considering, and the many other cases who have yet to apply or be accepted onto the Commission's books.

Finally there is the public relations situation. If the Court of Appeal isn't asked to make a ruling on affronts etc, the Post Office will be able to tell the world that, yes, they made mistakes with regards to disclosure and perhaps their investigations were not as thorough as they might have been, but there was nothing legally wrong with their decision to prosecute 900 people over a 14 year period and whilst regrettably, some people were wrongfully convicted, what's a few miscarriages of justice between friends?

The Big Risk to the above approach is that if the Court of Appeal decides the Post Office is right - that there has been no affront to the public conscience - it throws a spanner in the works of any malicious prosecution claim at the High Court. The claim could still be lodged, but it would have less of a following wind. The lawyers and Subpostmasters who pushed for this approach would face some stick for having potentially compromised the chances of every Subpostmaster's opportunity to get some proper compensation.

Another downside to the Noble Cause approach is that whilst it in no way threatens the overturning of 44 convictions, it will take longer to go through the Court of Appeal, as the arguments for and against Reason 2 are heard. This is likely to be a matter of months, though, rather than years.

The Low Hanging Fruit argument

The other argument is more simple. It suggests pushing at the door being held open by the Post Office to get the 44 convictions quashed in the Court of Appeal as soon as possible, and then retrain the guns over the Reason 2 arguments in a malicious prosecution claim at the High Court.

The downside to this approach is that it's great for the 44 appellants who are at the front of the queue banging at that door, but it could slow things up for the cases struggling behind them, as they will not be able to rely on a finding that using obviously ropey Horizon IT evidence (and what's more, actively hiding the truth of the matter) to pursue criminal prosecutions of Subpostmasters was an affront to public conscience.

On 18 November, the Court of Appeal will hear all the arguments from the interested parties and come to a conclusion. If the court thinks it doesn't need to make a ruling about abuse of process, it won't. It will hear the arguments made by the CCRC and the appellants over dodgy IT evidence and its disclosure (Reason 1) and likely go away quash between 44 and 47 convictions, leaving discussions over Reason 2 for a civil claim. 

If the Court of Appeal thinks it is important to consider the arguments on Reason 2 it will set a hearing date for that and we'll be a good few months into next year before the first Subpostmaster conviction is officially overturned.

These arguments are being made behind the scenes between the legal teams representing the 47 appellants to the court of appeal, and every single person I have spoken to is acutely aware that this is not an academic exercise, they know this is about peoples lives. 

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