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Neutral Citation No: Ref: KEE11983
ICOS No: 04/55916/A01
Judgment: approved by the court for handing down
(subject to editorial corrections)* Delivered: 25/10/2022
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
R
v
ALAN WILLIAM McLAUGHLIN
Mr Maloney KC (instructed by Madden & Finucane, Solicitors) for the Appellant
Mr Henry KC (instructed by the Public Prosecution Service) for the Public Prosecution
Service “PPS”
Before: Keegan LCJ, Treacy LJ and Horner LJ
KEEGAN LC] (delivering the judgment of the court Ex Tempore)
[1] Weare ina position to give a judgment in this case this afternoon and that is
on the basis of the helpful written submissions that we have received which have
been supplemented by the oral arguments today. This ruling will in due course be
committed to writing.
[2] On 16 February 2005 the applicant, Mr McLaughlin, pleaded guilty to 15
offences of false accounting, contrary to section 17(1)(a) of the Theft Act
(Northern Ireland) 1969. The charges relate to the applicant’s employment at
Brookfield Post Office in Tennent Street, Belfast, where he was a sub-postmaster.
The total loss alleged to have been occasioned to the post office was in the region of
£10,000. The applicant pleaded not guilty at arraignment to the charges against him
but changed his plea to guilty at trial and was ultimately convicted and fined
£700.00 in relation to all of the charges and a compensation order in the sum of
£1300 was made.
[3] He now seeks leave to appeal his conviction and an extension of time some 17
years later. The reason for this application is set out in the helpful skeleton
argument filed by Mr Maloney KC on the applicant’s behalf. This case follows a
large number of convictions which have been quashed in England and Wales of
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sub-postmasters and related employees of the post office. The background to these
cases is explained in a comprehensive judgment of Lord Justice Holroyde in the case
of Hamilton and others [2021] EWCA Crim 577.
[4] I We will not for the purposes of today’s ruling repeat all of the salient issues
that are examined in that decision. Suffice to say that we have considered the case
along with some of the subsequent cases in this area. From review of the law it is
clear that issues have arisen in relation to convictions which are based on the
operation of the Horizon system which operated in post offices. Whether a
conviction should be quashed depends on the circumstances of each case.
[5] I The Hamilton case concerned 42 men and women who were employed by
Post Office Ltd or its predecessors The Post Office and Post Office Counters Ltd as
sub-postmasters, sub-postmistresses, managers or counter assistants. They were all
prosecuted by their employer and convicted of crimes of dishonesty. Many years
later their cases were referred to the Court of Appeal in England and Wales by the
Criminal Cases Review Commission to decide whether their prosecutions were an
abuse of process of the court and whether their convictions were unsafe. These
cases centred on the reliability of the computerised counting system which was in
branch offices during the relevant period known as the Horizon system.
[6] Briefly, we want to refer to the characteristics of the Horizon system as
Holroyde LJ sets out in Hamilton. It is an electronic point of sale and accounting
system. It was designed and installed in about 2002. It provided a computerised
system of accounting within branch post offices and between the branches and Post
Office Ltd. The judgment also points out that the system did not allow for a facility
to dispute the figures raised by Horizon in relation to accounting at the various post
offices. Persons were required instead to contact the helpline. At paragraph [19] of
the Hamilton case the judge also sets out concerns about Horizon as follows:
“19, The initial roll-out of Horizon was delayed by
technical issues. From an early stage of its introduction,
some SPMs_ were experiencing, and reporting,
discrepancies and shortfalls in their branch accounts
which they considered were caused by faults in Horizon.
The case later advanced by the claimants in the High
Court proceedings, and by the appellants in these
appeals, is that Horizon has throughout been affected by
bugs, errors and defects, and that faults in the system
caused it to overstate the amount of cash or stock which
should be held at a particular time, thereby causing an
apparent and unexplained shortfall in branch accounts.”
(7] The initial roll-out of Horizon was delayed by technical issues from an early
stage of its introduction, some of the users were experiencing and reporting
discrepancies and shortfalls in their branch accounts which they considered were
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caused by faults in Horizon. However, the system was said to be reliable. But
ultimately, the difficulties have come to light and resulted in a number of the
convictions based upon this accounting system being quashed in Hamilton and
subsequent cases.
[8] This has occurred in some of the cases even where a guilty plea has been
entered and the Hamntilton case explains the rationale for that at para [125] of the
judgment as follows:
“125, We also bear in mind that many of the appellants
pleaded guilty. But as we have already said, R v Togher
and others provides clear authority that a conviction
following a guilty plea may be quashed on grounds of
abuse of process where the plea was “founded upon” the
irregularity of non-disclosure. We have no doubt that all
the guilty pleas of the appellants in “Horizon cases” were
founded upon Post Office Limited’s (“POL’s) failures of
investigation and disclosure. The whole conduct of the
prosecutions was based upon the constant assertion that
the Horizon data was reliable and that the money must
have been stolen, or at least a shortfall dishonestly
concealed. The appellants were denied the material
which could have been used to question that assertion.
They were, moreover, in the very difficult position of
being charged with offences of dishonesty committed in
breach of their employer's trust. They are likely to have
been advised that imprisonment is very often imposed for
such offences, and that the mitigation which would be
available to them if they pleaded guilty could therefore
be of particular importance. Many may well have felt
that they had no real alternative but to plead guilty on the
most favourable basis which could be agreed with POL.”
[9] A number of similar cases have arisen in Northern Ireland. One appeal is
defended, which we are hearing in January. In the present case the prosecution
does not oppose the application for leave to appeal and an extension of time. The
reasons for that concession are set out in the skeleton argument helpfully filed by Mr
Henry. Specifically, at paragraph 3 of that argument the following rationale is
found:
“The PPS does not oppose this appeal because the
prosecution case relied on the reliability of the Horizon
system and because the applicant placed the reliability of
that system in issue during the proceedings in the Crown
Court. Asa result, he ought to have been provided with
disclosure about the problems within that system, that
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was not done. The PPS which conducted the prosecution
was not made aware of the problems. As a result of not
receiving disclosure the applicant’s proceedings were
unfair. There was a breach of his Article 6 right to a fair
trial sufficient in the circumstances to raise a sufficient
sense of unease about the safety of the convictions to
warrant them being quashed.”
[10] The legal test which this court must apply emanates from the case of
Rv Pollock [2004] NICA 34 which is essentially that if this court decides that it has a
significant sense of unease about any conviction the conviction may be quashed.
The issue of extension of time is obviously related to information that has come
about as a result of the Horizon cases. The test in relation to that is found in a case
of R v Brownlee [2015] NICA 39. That case tells us that each court will consider a
request for an extension of time against the circumstances of the particular case and
taking into account the merits of a particular case. The PPS is not opposing the
substance of the appeal, notwithstanding the long period of time since conviction.
[11] The facts are set out in the various skeleton arguments and we will not repeat
them at this point but save to say issues arose in relation to discrepancies with
records from this post office where the applicant worked. He was interviewed
about the discrepancies and then he was charged with the 15 offences we have
referred to. As Mr Henry confirms in his argument it is of note that every charge
refers to a specific accounting document; counts 1-7 refer to a computer add list,
counts 8-15 refer to a weekly summary sheet. He also records at paragraph [18]:
“It is of some moment that both of the items specified
above were automated documents created by the Horizon
system.”
{12} A further point that is raised by Mr Henry and reiterated by Mr Maloney is
that prior to trial the defence solicitor obtained a report from a forensic accountant.
We have considered this report which is contained in the Booklet of Appeal. It sets
out a summary of the issues in the case and, in particular, the expert report sets out a
number of queries about the evidence in the case. Mr Henry describes the import of
this report thus:
“The report is explicit in putting the reliability of the
Horizon system in issue and it comments on the lack of
records made available by Post Office Ltd and Fujitsu, the
destruction of certain documents before trial and the
limitation of the documents that were actually provided.”
[13] Clearly, some logs were provided to the defence accountant but they were
limited and did not contain all of the information the accountant wanted. The
accountant also refers to requesting other records that he was informed had been
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destroyed before his request was received. In the conclusion section the author of
the accountancy report stated:
“Our review has been restricted by the fact that the
transaction logs which detail all entries to the system are
not available. These logs record transactions but also
record user IDs which show who has keyed each entry.
The usefulness of these reports is reduced significantly by
the fact that individual vouchers cannot be traced
through to individual entries on the log and therefore
cannot be traced in individual user IDs. However, we
cannot comment further on whether a review of the full
available logs may have assisted our investigation in
identifying recurring patterns in relation to the entries
identified.”
[14] The failure to retain the relevant records and the failure of the investigators to
obtain them in the knowledge of what they were investigating has led to a situation
where an abuse of process application could not be made during the trial. There are
other matters referred to in the report which it is not necessary to dilate upon.
However, is clear that the expert refers to a number of causes of the discrepancies
raised against the applicant, namely poor bookkeeping and controls, ongoing
inaccuracies of the computerised system, a combination of these factors and
references are clearly made in the report on the integrity of the computer software
itself. Therefore, it seems clear to us, as Mr Henry accepts, that the expert report
placed the reliability of the Horizon evidence in issue. That being the case,
disclosure of relevant problems within the system was required but no such
disclosure was provided. This issue is emphasised and reiterated by the fact that
the defence statement has now become available and clearly also puts the issue of
the software systems in play and requests specific disclosure of the relevant
information.
[15] In light of the above we consider that it is proper to allow for an extension of
time. In the circumstances of this case we consider that leave to appeal should be
granted. The conviction does leave us with a significant sense of unease and should
be quashed. The reasons why this conviction is unsafe are well outlined in the
arguments but summarised in particular, at paragraph [43] of the PPS argument.
There the PPS concedes that the test devised by Lord Justice Holroyde in Hamilton
and others and repeated in later authorities is satisfied in the circumstances of
Mr McLaughlin’s appeal. The Horizon evidence was an essential component of the
prosecution case in the court below and a clear disclosure obligation went
unfulfilled unbeknown to the prosecutors with carriage of the case. That failure was
material and consequently there was a breach of the appellant's article 6 right to a
fair trial pursuant to the Convention.
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[16] Accordingly, we consider that this appeal succeeds. Applying the law to the
particular circumstances of this case the inevitable conclusion is that the conviction
should be quashed. We note in the skeleton argument that there is no request for a
retrial which is entirely proper in the very unfortunate circumstances which pertain
in this case. Given the length of time that this matter has been pressing it is
important that this matter has been brought to a conclusion for the applicant. We
commend all counsel for the expeditious way in which this case has proceeded and
for the high quality legal arguments provided to us. We also note that a public
inquiry has been established in relation to these matters.