CCRC letter to the Court of Appeal about the Clarke Advice

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

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

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

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

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

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

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

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

and:

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

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

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

The full letter from the CCRC follows...

CCRC Letter Re Clarke Advice Redacted by Nick Wallis on Scribd

*****************

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.

Court of Appeal ruling on possible contempt by Flora Page and Paul Marshall

As well as telling me I couldn't have the Clarke Advice, on 3 Dec 2020, the Court of Appeal was also busy trying to decide whether or not Flora Page or Paul Marshall had been in contempt of court by disclosing the Clarke Advice to a journalist and the police.

At the end of the day it made an order requiring another constitution to deal with it and then, last week, it released a ruling stating that the proceedings of 18/19 November and those of 3 Dec were not, of themselves, contempt proceedings. 

There are two careers hanging in the balance here, so I don't want to be flippant, but if they weren't contempt proceedings, what were they? The answer to this question might have a bearing on the progression of this situation, which, let's not forget, has cost three Subpostmasters their chosen representatives in court.

Here is the full ruling:

Court of Appeal ruling on Clarke Advice contempt by Nick Wallis on Scribd

Court of Appeal Ruling re access to the Clarke Advice

Late last year I made an application to the Court of Appeal to receive the Clarke Advice, described by Lord Falconer as a likely "smoking gun" in the Post Office scandal. 

Brian Altman, QC for the Post Office in the current Court of Appeal proceedings, told the court the Clarke Advice revealed that:

"Mr Gareth Jenkins, an expert witness [for the Post Office] 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.”

The significance of this document was such that when the legal team representing Seema Misra, Tracy Felstead and Janet Skinner received it from the Post Office, one barrister (Flora Page) sent it to a journalist and another (Paul Marshall) sent it to the Metropolitan Police, which is currently investigating two Fujitsu engineers (including Gareth Jenkins) over their role in the scandal.

The Post Office took exception to Ms Page's actions, which set in motion a chain of events, leading to both barristers stepping down from representing their clients. Mr Marshall has written to both Lord Justice Holroyde (who is presiding over this appeal case) and the Lord Chief Justice over the matter.

No gun jumping

My application to see and report on the plainly important contents of the Clarke Advice was refused by the Court of Appeal on 3 December, but I only got the full approved written ruling telling me why this week.

The whole document can be found below, but the key paragraph is:

"In our judgment, neither a need to mention a document in order to raise a concern as to the possible impropriety of its being given to a press representative, nor a reference to a document in submissions to which its contents are not relevant, can be regarded as a reference to the document sufficient to necessitate its provision to a journalist or any other person with an interest in the case.  It would, in our view, be contrary to the proper conduct of proceedings if that consequence could be achieved by a party who had received disclosure of the document simply making it available to a journalist, especially when that is done in advance of a hearing on the basis that the party concerned will refer to the document at the hearing, and all the more so when the document in question has no relevance to the issues to be discussed at the hearing."

therefore:

"there is at present no basis for granting Mr Wallis' application for access to a copy of the Clarke Advice.  The principles governing the provision of documents to journalists and to other persons who have a legitimate interest in proceedings, but who are not parties, do not at present require or permit the release of the Clarke Advice to Mr Wallis.  We emphasise the words at present.  The position may change as these appeals progress.  We emphasise that our decision today necessarily relates to the situation as it presently stands.  The court is not however prepared to allow anyone to jump the gun."

I asked Mr Marshall to give me his view on this ruling, and I also approached Mark Hanna for his view. Mr Hanna is co-editor of McNae's Essential Law for Journalists. He told me:

"The Court's ruling in respect of the Clarke Advice gives hope that this document will be released to the media later in the appeal proceedings, when the relevance of the document's contents becomes, as regards the reporting of what is said in court, beyond dispute. 

But the ruling is disappointing, because in it the Appeal Court judges seem to view the concept of open justice as relating strictly to the reporting of the particular proceedings. But there is case law that the societal benefits of open justice include revelation of matters raised in court but beyond the scope of the issues in that particular hearing. The Appeal Court ruling does not set out clearly what risk of harm exists from allowing the Clarke Advice document to be fully reported now."

Mr Marshall wrote to say:

"Underlying the reasoning in the court’s ruling of 3 December are two a priori assumptions, unexamined and unargued.  

First, once disclosed to the appellants, the appellants are restricted in the use they can make of the “Clarke Advice”.  

The Post Office asserted (but did not establish) that the document is covered by an implied undertaking as a matter of law.  But the Clarke Advice is a document that tends to cast doubt on the safety of convictions of the appellants (that’s why it was disclosed). It is disclosed by the Post Office as prosecuting authority, post-conviction, not a private litigant. That is entirely different from the usual circumstance in which a party to, say, civil litigation gives disclosure of its private documents which they are entitled ordinarily, as of right, to keep to themselves. 

In civil litigation there is an implied undertaking of the kind identified by the House of Lords in Harman v Secretary of State for the Home Department (now codified under the rules of civil procedure). The quid pro quo is that as a consequence of being involved in litigation the documents disclosed under compulsion are protected in the use to which they may be put. That has no application whatever to the present appeals. 

There is no similar countervailing right of a prosecuting authority to withhold documents that cast doubt on a conviction.  

The second assumption (asserted but not established) is that the document was covered by legal privilege. 

But the assertion of privilege in the Clarke Advice would have been a ground for it not being disclosed to the appellants at all. Not only was the document disclosed, which ordinarily results in loss of privilege, but the terms of disclosure expressly provided that documents that met the criteria for disclosure would be disclosed even if privilege might otherwise have attached – a provision that is not referred to in the court’s judgment.

The question remains, had the Clarke Advice been disclosed to appellants before these appeals as a document that cast doubt on the safety of their convictions, on what possible basis could it have been said that the appellants would have been inhibited from going to the press about it? The Post Office could scarcely have been heard to say ‘we’ll let you have this document that casts, or may throw, doubt upon the safety of your convictions - so long as you don’t tell anyone about it and only if you use it for an appeal’.   

Any such restriction would likely have engaged rights guaranteed under Article 10 of the ECHR. In short, the judgment, unsatisfactorily, raises more questions than it answers.  Further, assumptions of the kind made are a questionable basis for displacing the principle of open justice identified in Cape Intermediate Holdings."

I hope the contents of the Clarke Advice, and both the CK Sift Review and the Altman Review which it spawned (see my oral submission to the Court for more on that) are made public sooner rather than later. Furthermore, I hope the decisions that were made by the Post Office and the government in the light of the information those documents contained are also fully exposed.

The full ruling is embedded below or can be read here on Scrib'd:

Court of Appeal ruling on Clarke Advice application by the media by Nick Wallis on Scribd

*****************

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.

Another four referrals by the CCRC

Four more former Subpostmasters have been referred back to the courts by the Criminal Cases Review Commission.

They are:

Roger Allen,  who pleaded guilty to theft at Norwich Crown Court  on 7 April 2004. He  was  sentenced to six months imprisonment.

Pamela Lock, who  pleaded guilty to false accounting  at Swansea  Crown Court on 1  November 2001. She was sentenced to  80 hours of  unpaid work and ordered to pay £26,071.53 compensation and £500 costs. 

Oyeteju  Adedayo (known to many as Teju), who  pleaded guilty to false accounting at Medway Magistrates’ Court on 19 January 2006. She was sentenced to  50 weeks imprisonment suspended for 24 months with 12 months of supervision and 200 hours of unpaid  work.

Parmod  Kalia, who pleaded guilty to theft at Bromley Magistrates’ Court on 17 December 2001. He was sentenced to six months imprisonment at Croydon Crown Court on 8 March 2002. 

Mr Allen and Mr Lock will likely be rolled into the cohort of appellants who will be heard at the Court of Appeal on 22 March.

Mrs Adedayo and Mr Kalia's cases will be dealt with at Southwark Crown Court (because they were convicted at magistrates' courts, crown courts hear the appeals).

"Unbearable shame"

This brings the total number of Subpostmaster referred by the CCRC to 51. Six of those Subpostmasters have already had their convictions quashed. Of the remaining 2020 referrals the Post Office is contesting three. 

Interestingly, Mr Allen was not prosecuted by the Post Office, but by the Department for Work and Pensions. Nonetheless his prosecution was Horizon-related. 

It means that it is up to the DWP to decide whether or not to contest Mr Allen's appeal. The Post Office tell me that they have served a respondent’s notice for Pamela Lock’s case but as it's not yet in the public domain they are unwilling to provide any more information about it. No decision has yet been communicated to the court about Ms Adedayo or Mr Kalia.

I have spoken to two of the Subpostmasters named above. Neither wished to comment on the record but I got a sense they are relieved to have got this far.

Teju Adedayo has had her story published on her solicitor's website where she spoke about her ordeal at the hands of the Post Office's investigators, saying:

"My parents brought me up to respect the law, work hard and earn a decent honest living. I’ve been completely broken by this, particularly by how this has impacted on my family and the unbearable shame it has brought on us all."

Ms Adedayo is represented by Hudgells, who also represent Parmod Kalia. Today Neil Hudgell, the firm's MD, released a statement saying:

"We are particularly pleased as whilst we have had plenty to celebrate in the past few months, we have been determined to ensure nobody is left behind.

We have 30 clients who have been told their convictions will be quashed, a significant number more at the initial stage of submitting their cases to the CCRC, and a handful still awaiting decisions from them.

We keep going until we’ve overturned the convictions of each and every person wronged as a result of his scandal.”

 *****************

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.

Paul Marshall's "resignation" letter to the Court of Appeal

Paul Marshall

On 15 December, Paul Marshall (pictured left) stood down from representing Seema Misra, Tracy Felstead and Janet Skinner at the Court of Appeal.

He faces possible contempt of court charges over passing a document known as the "Clarke Advice" to the police.

I reported Mr Marshall's decision to step down at the time. Now I have the full text of the letter he wrote to the court explaining his decision. It makes for troubling reading. 

In his letter, Mr Marshall states he has been made subject to an order of the court: 

"In proceedings to which I am not a party, in the course of a hearing at which I was not present, in the course of a hearing of which I was given no notice that any issue in connection with my conduct was to be raised... The first notice of which was given to me 4 days after the order was made, where the document founding criticism of my conduct by the court was provided to me 11 days after the hearing, and then only upon my specific request."

Right then

The night before a Court of Appeal hearing on 18 November 2020 Mr Marshall sent the Clarke advice to the Metropolitan Police. His junior, Flora Page, passed it to a journalist.

The next morning, Brian Altman, QC for the Post Office, said the advice (written in 2013) was alleged to contain evidence a senior Fujitsu engineer:

"relied upon in many of the prosecutions [of Subpostmasters] had failed in many cases to disclose information he was well aware of that Horizon had bugs and errors in it."

This goes to the heart of the Post Office scandal, because in Feb 2015 (nearly two years later), the then chief executive of the Post Office, Paula Vennells, told a parliamentary inquiry:

"If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those."

As a result of what was said about the Clarke advice in court on 18 November, Lord Arbuthnot told the government it was clear the Post Office had "lied" to parliament in 2015, and the former Lord Chancellor, Lord Falconer, told me it was likely a "smoking gun".

Shortly after the existence of the Clarke advice was made public, Ms Vennells announced she was resigning from her job chairing an NHS Trust.

Nonetheless, the judges took a dim view of the document's disclosure outside Court of Appeal proceedings, and began the process of considering contempt charges against Mr Marshall and Ms Page.

Open justice?

On 26 November I applied to the court to be supplied the Clarke advice on the basis that it was of significant public interest. 

On 3 December, my application was refused. Nearly three weeks later I am still waiting for the approved ruling which explains why.

In his letter of 15 December Paul Marshall tells the Court of Appeal he feels "inhibited from continuing fearlessly to represent my clients before this court." 

I am publishing a redacted version of the letter below. Acting out of an abundance of caution, I am trying to measure the public interest against the Court of Appeal's unwillingness to allow the Clarke advice and its contents to be made public. I hope, by removing references to what the Clarke advice contains beyond that which is already in the public domain, I have struck the right balance.

More importantly, I hope the redacted elements do not detract from the power of Mr Marshall's argument. Something has gone terribly wrong when a barrister feels unable to represent his clients in one of the highest courts in the land.

If you can't see the letter embedded below, click on the link. You may need to sign up to Scrib'd to read it, which is free. 

Paul Marshall letter to the... by Nick Wallis

Earlier this week I told Mr Marshall of my intention to publish his letter and asked if he had anything to say about it. He declined to comment, other than to ask me to make clear that I had not received the letter I am publishing from him.

I asked the court if it had anything to say in response to Mr Marshall's letter. I understand it is not in a position to reply, given it is now the Christmas holidays. 

I asked if Mr Altman had anything to say about Mr Marshall's letter, given the criticisms which are levelled at him. I was told by lawyers acting for the Post Office it would not appropriate for Mr Altman to comment, however:

 "that should not... be taken as an acceptance of anything said in Mr Marshall’s letter". 

On 18 November, Mr Altman said the Post Office only brought their knowledge of the leaking of the Clarke advice to the court:

"because we regard it as our professional duty to ds so.  We also make it clear that the complaint is about the alleged acts of a lawyer or lawyers acting for three of the appellants, not the appellants themselves."

On 17 December, the three appellants in question, Tracy Felstead, Janet Skinner and Seema Misra, won the right to have their prosecutions by the Post Office considered as a possible affront to the public conscience. It's a shame they have been deprived of their legal representatives in doing so.

*****************

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.

Horizon trial judgment could force changes to the legal system's view of electronic evidence

Stephen Mason

I have known the barrister Stephen Mason for nearly a decade. He specialises in the presentation of electronic evidence in court. 

When the Second Sight interim review into the state of the Post Office's Horizon IT system was published in July 2013, I asked him straight up if it was possible that Horizon IT errors could be responsible for discrepancies in Subpostmaster accounts. His simple "Yes, of course" by way of response was unequivocal.

We stayed in touch. I read some of his work, including his clear view of where the court was wrong in the prosecution of Seema Misra, the West Byfleet Postmaster sent to prison whilst pregnant.

Mr Mason's central argument is that a recommendation given by the Law Commission in 1997 to the courts is helplesssly, hopelessly and dangerously wrong. The guidance states:

"in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time... The principle has been applied to such devices as speedometers and traffic lights and in the consultation paper we saw no reason why it should not apply to computers." [my italics]

You don't need to be a legal eagle or IT genius to see that the Law Commission's decision to leap from a speedometer to the vastly complex digital ecosystems underpinning modern computer networks is mutton-headed, to say the least.

Yet it is this presumption the courts have relied on throughout the 21st century in the prosecutions of Subpostmasters and unfortunate individuals in other spheres, who were, it turns out, entirely innocent.

Mr Mason has been attempting to get the legal position on computers changed for as long as I can remember. Now he has a document which might force the issue - the Horizon Issues judgment, handed down on 16 Dec 2019.

On the anniversary of the judgment, Mr Mason, along with the barrister Paul Marshall and eight other learned authors, published a paper positing alternatives to the way digital evidence is currently handled in the courts.

It is called: "Recommendations for the probity of computer evidence" and it states:

"All computers have a propensity to fail, possibly seriously. That is to say, they have a latent propensity to function incorrectly."

As a general rule of thumb:

"A program on a mobile telephone might hitherto have contained tens of thousands of lines of software code. A program such as Horizon will contain tens of millions of lines of code, and will be exceedingly complex. Programming is a human task and programmers make mistakes; an error rate in writing software code of 10 errors per thousand lines of code is considered good, 1 error per thousand lines is rarely if ever achieved."

By way of example the paper cites a 2006 University of York review of a study conducted by the Ministry of Defence into the safety of the software contained in its Hercules C130J air transporters. The MoD found that the Hercules software contained about 1.4 safety-critical faults per thousand lines of code (kLoC) with an overall flaw density of around 23 per kLoC

The review notes:

"whilst a fault density of 1 per kLoC may seem high it is worth noting that commercial software is around 30 faults per kLoC, with initial fault injection rates of over 100 per kLoC."

Mr Mason et al's clear recommendations for a protocol on the way electronic evidence is treated by the legal system can be read here. They seem eminently sensible.

*****************

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.

Victory for Subpostmasters, defeat for press freedom

l-r Janet Skinner, Tracy Felstead and Seema Misra

After a day of legal argument at the Court of Appeal, Lord Justice Holroyde and his fellow judges have decided to allow Seema Misra, Tracy Felstead and Janet Skinner to argue their prosecutions were an affront to the public conscience and should never have happened.

Earlier this year, in the light of the Bates v Post Office civil litigation, the Criminal Cases Review Commission referred 47 convictions to the courts, arguing there was abuse of process by the Post Office as prosecutor, and the convictions may well be unsafe. 

The CCRC split the abuse of process into two limbs, or categories, or grounds (all three terms were used liberally and interchangeably in court today). The first limb contends that a lack of disclosure of important information (eg Horizon fault log data) by the Post Office led to unsafe convictions. The CCRC contended that had that information been put into the hands of a defence team it would have altered the way they defended the case and/or advised their client. 

The second limb was about the prosecutions being an "affront to the public conscience" - ie that the Post Office knew it should not be prosecuting, but did so anyway (eg for asset recovery purposes, or despite knowing its Horizon data was unreliable).

Of the 47 convictions referred to the courts by the CCRC, the Post Office only accepts there was an affront to the public conscience in 4 of them (including Noel Thomas, who featured in the very first Computer Weekly investigation into the Post Office Horizon IT scandal back in 2009). 

The Post Office also resists any abuse of process with three of the referrals.

From the remaining 40, six convictions have already been overturned at Southwark Crown Court.* That happened last Friday, so suddenly that Lord Justice Holroyde today said he had no idea the hearing was due to take place until he found the convictions had been quashed, via twitter. As the only journalist live-tweeting in court that day, I am delighted to have been of service.  

That leaves us with 34 Subpostmasters who the Post Office agree should have their convictions overturned on grounds of lack of disclosure, but not on the issue of affront to the public conscience. It was their cases and their cases alone which were the subject of proceedings today.

All the limbs

There were three main schools of thought amongst the parties in court today:

a) the Post Office and a couple of appellants, whose view was that consideration of limb 2 was unnecessary,

b) the bulk of appellants, who essentially didn't mind either way, and so long as things didn't drag on too long, they would like the judges to consider limb 2 of their appeal if limb 2 considerations were allowed,

c) Seema, Tracy and Janet, who were adamant that consideration of limb 2 was essential for justice to be done.

To cut a long story short: Seema, Tracy and Janet won. The judges decided they will be able to argue that their prosecutions were an affront to the public conscience. 

In fact it was something of a cake-ist victory for all the appellants, as the judges ruled:

a) second limb arguments could be heard within the time frame already allotted by the court for the full appeal hearing, which runs for a week from 22 March 2021. 

b) any appellant who wished to have category 2 abuse considered in their specific case could apply to do so.

Seema, Janet and Tracy's case was put to the court by Lisa Busch QC, the late substitute for Paul Marshall, who stood down from representing his clients earlier this week. As Ms Busch made clear, she was using a lot of the work, and the skeleton arguments Mr Marshall had submitted to the court shortly before his departure.

Speaking of skeleton arguments

Whilst the appellant Subpostmasters will justifiably be celebrating tonight, journalists are not. Tom Witherow from the Daily Mail made an application to receive the documents released to me by the court, which the Post Office generated in response to my application to receive the Clarke advice. He developed his argument carefully and cogently with an oral submission on a videolink.

The Post Office previously told me they felt I could not publish the documents Mr Witherow was requesting, and when Brian Altman QC for the Post Office told the court he had no object to Mr Witherow receiving the documents I was a bit confused. It turns out Mr Altman was quite happy for Mr Witherow to receive the documents, but that he should not be allowed to publish them. This, whilst consistent with the Post Office's position, is.... frustrating. 

Mr Altman also, with my advance agreement, pointed out to the judge that I was seeking the skeleton arguments of all parties.

The judge asked me to make a submission if I wished to. I stood up and said I had asked all the parties for their skeleton arguments for today's hearing, that I had not received them and that this was very odd as it is usually a formality for any journalist to receive skeleton arguments from the parties once proceedings are underway without any need for applying to the court.

After rising to consider their position, the judges came back and told us they had decided to decline both mine and Tom's application. I was a little bemused as I was not aware I had made an application to the court on this occasion. And I am more than a little concerned, as it means the Post Office, whilst professing helpfulness, openness and transparency, has successfully (whether inadvertently or not) managed to keep documents out of the public domain which, were it not for the bizarre sequence of events which began on 17 November, would be published as a matter of course, without remark.

That said, the Post Office made it clear to the judges they had no objection to Mr Witherow seeing the documents about the Clarke advice, nor to me receiving the skeleton arguments. And I have been told that the Post Office have also kindly agreed to pay for and circulate transcripts of every hearing from 3 Dec onwards (including events at Southwark Crown Court) in the interests of aiding reporting and for the public record.

I still haven't received the approved written judgment against my second application from 3 December. 

If you would like to read a blow-by-blow account of what happened today, you are more than welcome to, read my collated live tweets, on this web page.

* The six appellants were separated out into a crown court because the original prosecutions were at magistrates' courts.

*****************

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.

Barrister quits over Clarke advice order

Paul Marshall

A barrister representing two former Subpostmasters and a former Post Office worker at the Court of Appeal has stepped down, saying he feels "disabled from discharging my professional duty to my clients."

Paul Marshall, from Cornerstone chambers, is facing contempt of court charges after he admitted passing a confidential document, known as the Clarke advice, to the Metropolitan Police. Until today he represented Seema Misra, Janet Skinner and Tracy Felstead, who were all prosecuted by the Post Office and sent to prison.

Mr Marshall's contention, expressed through his own representative at the Court of Appeal earlier this month, is that any contempt charge against him in these circumstances would have no basis in law. 

Flora Page

Mr Marshall's junior, Flora Page, has already exited, after admitting passing the Clarke advice to her brother, a journalist. She, too, faces contempt charges.

The Clarke advice was written for the Post Office in 2013 by a barrister called Simon Clarke. It contains information that a senior Fujitsu engineer failed to disclose Horizon IT errors during the prosecutions of a number of Subpostmasters. The document has yet to be made public. In 2015, the chief executive of the Post Office told Parliament that no evidence of any miscarriages of justice had been found.

The allegation of contempt for disclosing the Clarke advice was first raised by the Post Office in court on 18 November, against Flora Page. They said the document should only have been seen by the judges, appellants and their legal representatives.

On 19 Nov, the Met alerted the court to Mr Marshall's actions in sending the Clarke advice to them. 

A hearing on 3 Dec led the Court of Appeal to order a different "constitution" of judges to consider whether a contempt had taken place.

In his letter to the Court of Appeal, sent today, Mr Marshall says:

"Having carefully and anxiously reviewed the proceedings on the 18 November, 19 November and 3 December 2020, and the terms of the order made on 3 December 2020, I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clients.  Accordingly, it is in my clients’ best interests to be represented in these appeals before this court by other counsel…. It is most unfortunate for my clients that they are deprived of representation by both counsel of their choice as a consequence of events of 18 - 19 November and 3 December 2020."

(UPDATE: I am now in possession of the full text of Mr Marshall's letter and I have published it, with some redactions, here) 

"An absolutely brilliant barrister" 

Mr Marshall and Ms Page were the only two barristers arguing that the Post Office's actions in prosecuting the appellant Subpostmasters was an affront to the public conscience. Their arguments were due to be heard in court this Thursday 17 December.

Two other barristers from Cornerstone chambers - Lisa Busch QC and Dr Sam Fowles - have agreed to step into Mr Marshall and Ms Page's shoes to make those arguments in their absence. 

Seema Misra, who was sent to prison ten years ago whilst pregnant, and whose prosecution the Post Office now admits was an abuse of process said:

"We can't thank Paul enough for going the extra mile. We are so sorry to lose him at this late stage, but we understand the reasons.  He has been an absolutely brilliant barrister."

Tracy Felstead was prosecuted by the Post Office and was sent to prison aged 19 (read her harrowing story here). The Post Office has now admitted Tracy's prosecution was also an abuse of process. Today she said:

"I’m really upset that it’s come to this, I am truly grateful for all Flora and Paul have done for us. I understand their decisions and I’m truly grateful for the new team jumping on board."

As the Clarke advice was referred to extensively on the 18 and 19 November in open court, I applied to see it. My request was refused. Lord Arbuthnot has demanded a copy of the Clarke advice is placed in the Libraries of both Houses of Parliament. The government has so far refused. 

Shortly after the existence and the importance of the Clarke advice was made public, Paula Vennells, Chief Executive of the Post Office when the advice was written, announced she was stepping down from her job chairing a large NHS Trust.

Read my written application to see the Clarke advice here.

Read my oral submission in support of my application to see the Clarke advice here, in which Lord Falconer, the former Lord Chancellor, describes the document as a "smoking gun".

*****************

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.here

Former Post Office staff told NDAs can be waived for inquiry

The Post Office has said non-disclosure agreements signed by present and former staff will not be enforced for those who want to give evidence to the Post Office Horizon IT Inquiry. This removes at least one obstacle (or excuse) potentially stopping former Post Office from contributing to the inquiry. The waiver also includes serving and former Subpostmasters.

The Post Office made the concession in response to a request from the inquiry chair, Sir Wyn Williams, who himself appears to have been prompted by the Communications Workers Union.

Writing to the CWU's Andy Furey, Sir Wyn says:

"Post Office Limited has indicated it will waive any confidentiality obligations owed to the organisation by current or former postmasters/employees so that such individuals may engage freely with the Inquiry. The waiver is limited in purpose so it applies to any current or former postmaster or Post Office Limited employee who wants to engage with the Post Office Horizon IT Inquiry."

There is, of course, a catch. According to the Post Office:

"The scope and operation of any waiver will need to reflect the specific agreement entered into with the individual, given that the terms, rationale for them, and extent to which it might be appropriate to maintain them for matters outside of the Inquiry and its terms of reference, will be case specific.  It would however reflect the overarching principle that Post Office will enable the individual to participate in the Inquiry free from any inhibition created by an NDA."

Hmm... you receives your money, you takes your chances.

The letter which prompted the above appears to have been a letter sent by Mr Furey on 23 November, in which he told Sir Wyn:

"I am concerned that unless your inquiry can demonstrate that witnesses are accorded full protection, you may struggle to get vital witnesses to contribute. Even if you were to get witnesses to participate, it could be superficial and from their perspective they may wish to give the impression they are co-operating even though they may choose to hide behind the non- disclosure position in response to some pertinent questions."

Andy Furey, the CWU's Assistant Secretary told me:

"We welcome this response and we’re pleased that Sir Wyn sought and received assurances from the Post Office to clarify this issue. Hopefully this will provide some reassurances to people, so they feel they can submit evidence to the inquiry, speak from the their experiences and tell the truth of what’s going on without fear of reprisal or repercussions. 

We sincerely hope this also means former Post Office managers and executives who were involved in the decision to prosecute Subpostmasters and the subsequent cover up and rebuttal of the Second Sight investigations - including Alice Perkins, Paula Vennells and Mark Davies - will come forward and tell us what they know."

*****************

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.

First Subpostmaster convictions quashed

l-r Chris Trousdale, Neil Hudgell, Vipin Patel, Varchas Patel, Mrs Patel, Siema Ashraf, Kamran Ashraf, Jaswinder Barang, Mr Barang, Sharon Barang

Six former Subpostmasters have made history by having their convictions quashed at Southwark Crown Court.

Julie Cleife, Christopher Trousdale, Susan Rudkin, Vipinchandra Patel, Kamran Ashraf and Jasvinder Barang were all prosecuted by the Post Office between 2004 and 2012 for crimes ranging from false accounting to theft, fraud and false representation.

Today a judge at Southwark Crown Court quashed their convictions after the Post Office indicated at the beginning of November it would not oppose them. Read the transcript here. At the end of the hearing, the judge told the court:

"I am sure that all of the appellants are grateful for the approach that the Post Office has taken finally to this matter and that it can be put to rest for them."

That is an odd take, to put it charitably.

The six former Subpostmasters had their cases referred to the crown court by the Criminal Cases Review Commission as part of a wider group of 47 Subpostmasters whose cases were referred earlier this year. The CCRC determined their prosecution was an abuse of process because it relied on using inaccurate data from the Post Office's unreliable Horizon IT system. 

Because this smaller group were initially convicted at magistrates courts, their appeals, or more accurately, re-trials needed to be take place at a crown court.

Speaking outside court shortly after her conviction for fraud had been overturned, Jaswinder Barang said:

"It's the worst thing, to be found guilty for something that you haven't done. I am a law-abiding citizen and that's the way I want to spend the rest of my life. Today is just absolutely wonderful - it's made me feel very happy."

Her daughter-in-law Sharon Barang added:

"We're just really happy - we were the first ones to get justice and we really hope this will set a precedent for many more people to get justice. It's been an absolute nightmare, for our family... such an ordeal."

Kamran Ashraf, who was convicted of theft in January 2004 said: 

"It's means everything. It's been 17 years. Way too long. Way way too long. But the main thing is we got there in the end. I'm just shellshocked. I just don't know how to react. So many mixed emotions. We are overjoyed, but at the same time when you think back and just think about the things that have happened over the last 17 years. Not just to me, but my family, and all we've been through as a group, it's just been horrendous. It really has."

Siema Ashraf, who was a young mother when Kamran was sent to prison said:

"It's wonderful. I'm still in shock. I think it hasn't hit home yet. We've been waiting for this day for a very very long time."

Helen Pitcher, Chair of the Criminal Cases Review Commission said:

"This is really good news for the people involved in these six cases... We know from the Post Office that there could be hundreds of other cases out there – it seems likely that some of those will approach the CCRC for help while others may still be able to go direct to the Court of Appeal.”

The Post Office said they:

“did not oppose these appeals and sincerely apologises for historical failings. We have taken determined action to address the past, ensuring there is redress for those affected and to prevent such events ever happening again.

Fundamental reforms have been made to forge a new relationship with postmasters, helping them to build thriving Post Office businesses for customers and communities throughout the UK.”

The Post Office is currently reviewing around 800 prosecutions made between 1999 and 2014, where Horizon data was used in evidence. The CCRC is actively reviewing 21 cases, but says any Subpostmaster with a criminal conviction who has not appealed already should seek legal advice before applying to the courts directly to have their conviction quashed.

Neil Hudgell, a solicitor who represented three of the appellants in court today said:

"Their first comment to me was 'what about the others?' There are a sea of other people behind them who are going to get the same outcome in due course. It's just a great vindication.... The tide has turned. The cards are in their hands. And it's for them now to go to the Post Office and ask them to make some sort of reparation for their losses. They can never get back, of course, what they've lost. The Post Office now say they have an open and transparent way of working and the next test of that of that will be to ensure that Chris, Vipin and everybody else who has suffered so badly gets some sort of reflection for that, in an appropriate award of compensation for them."

The historic six: 

Kamran Ashraf – Theft – 28/1/04 – South Western Magistrates Court

Jasvinder Barang – Fraud 3/8/12 – Luton Magistrates Court

Julie Cleife – False representation – 26/10/10 – Basingstoke Magistrates Court

Vipin Patel – Fraud – 3/6/11 – Oxford Magistrates Court

Susan Rudkin – False accounting – 23/3/09 – Burton-upon-Trent Magistrates Court 

Christopher Trousdale – False accounting – 8/3/04 Scarborough Magistrates Court

*****************

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.

Transcript: Historic hearing at Southwark Crown Court 11 Dec 2020 - convictions quashed!

This is the transcript to the hearing at Southwark Crown Court on 11 Dec 2020. Six Subpostmaster convictions were quashed, the first to be overturned in the entire Post Office Horizon scandal. The Post Office did not resist the Criminal Cases Review Commission's decision that their prosecutions amounted to an abuse of process. 

The story of the hearing is reported on this website, here. 

Most notable quote in the transcript below from the judge, who says: 

"I am sure that all of the appellants are grateful for the approach that the Post Office has taken finally to this matter and that it can be put to rest for them."

I am not sure that is true.

If you are unable to see the transcript embedded below, you can read it on Scribd, here.

**************

I am currently crowdfunding all my work on the Post Office Horizon scandal. If you are able to make a donation so I can continue my work, I would be very grateful. Donations above £20 get you added to the secret email list, £25 gets you a free (forthcoming) ebook, and £40 or more gets you a free, signed, (forthcoming) hardback book about the scandal. More here.

Post Office Scandal: Southwark Crown Court Appeal Hearing by Nick Wallis on Scribd

Vennells steps down from NHS Trust

Rev Paula Vennells, CBE

Paula Vennells, who was managing director of the Post Office from 2010 to 2012, and its chief executive from 2012 to 2019, has decided to step down from her current job as Chair of Imperial College Healthcare NHS Trust.

Ms Vennells will stay in post until next April. It was, we are told, a personal decision. It comes three months after it was revealed a government minister had written to the Department of Health questioning Vennells' fitness for office.

In a short statement, quietly slipped out on Thursday 3 December, when most people following the Post Office Horizon IT scandal were watching events at the Court of Appeal, Ms Vennells said:

“By the time I leave, I will have been in the position for two years. While I will be very sad to go, it is a personal decision at the right time."

The Trust's chief executive, Professor Tim Orchard said: 

“Paula has made an enormous contribution... Her continued focus on our vision and values, as well as diversity and inclusion, has supported real progress with our organisational culture... We are very grateful for her commitment and expertise and will make the most of her remaining time at the Trust.”

This is the third job Vennells has lost by resigning in the space of twelve months. In March this year she stepped down as a non-executive director of the Cabinet Office.

In June Ms Vennells' left her position on the Church of England's Ethical Investments Advisory Group. An email to a Post Office campaigner from the EIAG stated she had "taken a leave of absence as she engages with the BEIS Select Committee Review." 

The founder of the Justice for Subpostmasters Alliance, Alan Bates, said of Ms Vennells' latest announcement:

"I was utterly amazed they appointed her in the first place, don't they read newspapers or undertake due diligence when they appoint someone?  Her departure seems to be yet another case of her jumping ship before being pushed."

The timing is curious. Lord Arbuthnot, who has long campaigned for Subpostmasters, speculates:

“Can it be a coincidence that shortly after it became clear that the Post Office lied to Parliament, Paula Venells announced she was stepping down from the Health job?”

Lord Arbuthnot

Lord Arbuthnot is referring to the Clarke advice, written in 2013, which was recently revealed at a hearing of the Court of Appeal. 

The Clarke advice seems to contradict assurances given in 2015 by Ms Vennells and the Post Office to parliament that they had fully investigated all the the Post Office's prosecutions and had so far found no evidence of any miscarriages of justice. 

Lord Falconer, the former Lord Chancellor, described the Clarke advice as a likely "smoking gun" and Andrew Bridgen, an MP who has also campaigned to help Subpostmasters for years said:

"it appears that the post office did knowingly mislead MPs in 2015. It also appears that they were confident hiding behind their lawyers."

I asked Imperial College Healthcare NHS Trust for Ms Vennells resignation letter and more information as to why she stepped down. The trust responded saying they did not wish to add anything to the statement of their website.

I asked Ms Vennells via her lawyers why she stepped down, and whether or not she, or the Post Office, did lie to parliament in 2015. I have so far not received a response.

On 24 December last year, Dr Minh Alexander asked the Care Quality Commission to start a Fit and Proper Person investigation into Paula Vennells' appointment as Chair of the Imperial NHS Trust. At the time Dr Alexander said:

"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."

Dr Minh Alexander

Today Dr Alexander reacted to Ms Vennells' announcement by telling me:

"It is a relief that Paula Vennells will no longer be a part of a safety critical public service where transparency is vital. But it would not be acceptable for the matter to end simply with Paula Vennells riding into the sunset. Those who appointed her, helped to protect her, turned a blind eye and failed to act expeditiously and effectively on the ongoing governance risk posed by her position as Imperial trust chair need to confront what they did. The government needs to ensure a systemic response to reduce the risk of such future abuses of the NHS. Patients and NHS staff should not be treated so disrespectfully again.”

Ms Vennells  remains a non-exec director on the board of Dunelms and Morrisons, and she also holds a position within the Church of England as a non-stipendiary priest within the Bromham Benefice, where she is protected by the Bishop of St Albans.

No one should be rewarded for failure, and no one should be scapegoated for things which aren't their fault. The only inside explanation of what was happening at the Post Office in 2013 after Second Sight completed their interim report comes via evidence submitted by Paula Vennells to the 2020 BEIS inquiry. It was this inquiry the EIAG said she had stepped down to focus on.

Ms Vennells' heavily-lawyered evidence points the finger at Fujitsu for failing to disclose errors with Horizon. On the issue of the Post Office's prosecution mania, she says:

"the Board and I were assured by in-house and external lawyers that the Code for Crown Prosecutors was being followed... Whether the specific evidence was sound in any one case was a matter for their judgment and not mine: it would have been wrong for me to become involved unless of course I became aware of a systemic problem, which I did not."

Cryptically she adds:

"Post Office was also mindful of its disclosure obligations in relation to convictions. When we went through the Scheme [the Post Office's 2013 Complaint and Mediation Scheme], Post Office lawyers considered each and every case in the Scheme where there had been a conviction in order to assess whether there was anything that had emerged from the Scheme which Post Office was obliged to disclose."

Nowhere in her submission does Ms Vennells mention the Clarke advice, or the subsequent Altman General Review or the CK Sift Review, which looked at all the Post Office prosecutions since 2010, not just the ones accepted onto the mediation scheme [for more information on the CK sift review - see my oral submission to the Court of Appeal]. 

Either Ms Vennells was not aware of the Clarke advice, the Altman General Review and the CK Sift Review, or she was aware of them and chose not to tell parliament.

Janet Skinner

Janet Skinner was sent to prison for nine months in 2007 after being prosecuted by the Post Office (see BBC Panorama's Scandal at the Post Office). Janet has been fighting to clear her name for 13 years, and last month the Post Office admitted her prosecution was an abuse of process. Ms Skinner reacted to the NHS announcement by saying:

 

"It is quite a shame that Paula Vennells didn’t provide the same kind of care and support in her previous employment. Is it a case of ‘jump before pushed’ again? No doubt she will profit again with a good pension/severance package; something that us postmasters did not receive."

Tracy Felstead was sent to prison aged just 19 after being prosecuted by the Post Office. She has suffered mental health battles for many years and is still fighting to clear her name. Like Ms Skinner, last month the Post Office admitted her prosecution was an abuse of process. Ms Felstead told me:

"I’m delighted to hear this news, it’s a shame it’s taken so long, I don’t believe Paula Vennells has ever felt any genuine remorse towards those of us who have been affected! If she had she would have done the right thing from the start, I’d like to think the other roles she holds will now go the same way."

*****************

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.