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IN THE COURT OF APPEAL, CRIMINAL DIVISION
REGINA
-V-
HAMILTON & OTHERS
UPDATED DISCLOSURE NOTE IN RELATION TO THE CONTEXT
FOR ‘THE CLARKE ADVICE’
1. This note is intended to assist the Court and all parties by providing the background
and context for the Advice dated 15 July 2013 from Simon Clarke (in-house
counsel at Cartwright King) in relation to the use of Gareth Jenkins as a prosecution
witness in future prosecutions (“the Clarke Advice”).
2. The Clarke Advice had been considered for disclosure and deemed to be
disclosable as a part of Tranche 3 of the GDR (due for disclosure on 4 December
2020). As a result of disclosure requests made by Aria Grace solicitors in a letter
dated 27 October 20201, the Clarke Advice (and a number of other documents that
would also otherwise have been disclosed on 4 December 2020) were disclosed
early on 12 November 2020. In the interests of fairness, the same material was
also disclosed to all other Appellants at this time or very shortly after.
Chronology of events
3. In placing the Clarke Advice in context, the following chronology may assist:
12 June 2013 _I Helen Rose's report in respect of Horizon issues at the Lepton
Branch (“the Helen Rose Report”). A version of this note was
1 The Aria Grace letter of 27 October post-dated the determination that the Clarke Advice was
disclosable and would be disclosed within Tranche 3
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disclosed as part of Tranche 2 GDR disclosure on 29/30
September 2020 (Document ID 310054939).
27 June 2013
POL contacted Cartwright King solicitors, who had acted as
prosecuting agent for many of POL’s prosecutions, indicating
that it understood that the Second Sight Interim Report, which
was due to be published shortly, contained information that
suggested that Horizon may not be “bug free”, and that it
appeared to POL that someone within the organisation had
been aware of bugs affecting branches.
28 June 2013
Gareth Jenkins informed Simon Clarke and Martin Smith of
Cartwright King during a telephone conference that he had told
Second Sight about two possible Horizon Bugs (the Receipts
and Payments Mismatch and Local Suspense Account bugs).
Late June/early
July 2013
Cartwright King Solicitors were instructed to advise POL on
their post-conviction disclosure obligations, in particular,
whether the Helen Rose Report and/or the Second Sight
Interim Report needed be disclosed to individuals convicted in
POL prosecutions conducted since 1 January 2010°.
8 July 2013
The Second Sight Interim Report (“the SS Interim Report”)
was released. It was published on the POL website on the
same day. A copy has been disclosed to all Appellants as part
of Tranche 2 GDR disclosure on 29/30 September 2020 with
Document ID 136025457.
8 July 2013
Simon Clarke advised on the need to conduct a review of all
POL prosecutions so as to identify those who ought to have
had the material disclosed to them, as well as a review of
current cases where there had been no disclosure where there
ought to have been. Mr Clarke indicated that the existence of
bugs needed to be disclosed to defendants where the test for
disclosure was met, and he set out the scope of the exercise
2 A copy had been provided to the CCRC on 2 April 2015
3 This date was used because the bugs known of at that stage were believed only to apply to Horizon
Online rather than Legacy Horizon, and 1% January 2010 was the earliest date on which Horizon Online
was migrated into all Post Office branches.
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to be conducted. This post-conviction disclosure exercise is
referred to as the “CK Sift Review’.
9 July 2013 Cartwright King provided their first case specific advice in
relation to post conviction disclosure.
15 July 2013 The Clarke Advice on the continuing use of Gareth Jenkins as
a prosecution expert. This was disclosed in the circumstances
described above with Document ID 136028107.4
The CK Sift Review
4. It has been suggested that POL improperly failed to take any action to disclose the
matters dealt with in the Clarke Advice until forced to within these proceedings.
This is simply factually incorrect.
5. As outlined above, in mid-2013, when these matters became known to POL,
Cartwright King Solicitors (a leading criminal law firm who had acted as prosecution
agents for POL in a significant number of cases) were instructed to conduct an
independent review to ensure that proper post-conviction disclosure was made in
appropriate cases.
6. The CK Sift Review referred to above continued for a number of months into 2014,
during which Cartwright King reviewed all cases (both Crown Court and
Magistrates’ Court) in which the primary or main evidence against the defendant
was based on Horizon data, and included also those cases involving suggested
problems with Horizon training or support. This was undertaken by a sift review
process where an initial review was conducted of the case to determine whether it
was in scope of the review or not.
7. Once a potentially affected case was identified, senior in-house counsel at
Cartwright King carried out a case review to determine the essential question: “Had
POL been possessed of the material contained within the Second Sight interim
4 The advice was taken, and Mr Jenkins’ evidence was not relied upon in any further POL prosecution.
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report and Helen Rose reports during the currency of any particular prosecution
should/would POL have been required to disclose some or all of that material to
the defence?” In cases in which convictions had been obtained, this also meant
considering material for disclosure, which might cast doubt on the safety of the
conviction.
8. Over the course of a number of months, Cartwright King carried out a sift of 308
case files, a second sift of 229 case, and a full review of 53 cases. Of those cases,
Cartwright King advised that disclosure should be made in 26 cases and further
advised that a further 4 on-going prosecution cases should be discontinued. That
first phase of the sift review concluded on 26 November 2013. A second phase of
the sift review was then undertaken, concluding on 9 September 2014, during
which a further 238 case files were considered. Of those, 196 files were subjected
to a second sift and 30 files were subject to a full review. It therefore appears that
a total of 546 case files were subject to review as part of the Cartwright King review
in 2013 and 2014. It appears that 7 of the Court of Appeal/Crown Court Appellants
referred by the CCRC in March and June 2020 were the recipients of post-
conviction disclosure in 2013/14 pursuant to the CK Sift Review exercise.>
9. As a part of the 2020 post-conviction disclosure exercise, the CK Sift Review
advices have been reviewed. Where the disclosure test is met, the advice has been
disclosed to the individual concerned as case specific disclosure.
Disclosure of the Clarke Advice to the CCRC
10.Given the observations made during the directions hearing on 18 November 2020
as to whether the CCRC were aware of the Clarke Advice, it is thought that the
following clarification may assist:
10.1 The CCRC has been on notice of the existence and the contents of the Clarke
Advice since at least 27 February 2015. On that date the CCRC were
° Seema Misra’s case was reviewed as part of the CK Sift Review, and Cartwright King advised on 22
January 2014 that post-conviction disclosure to her was not required on the facts of her case. Her case
was further reviewed in 2015, resulting in further advice. Both advices have been disclosed to her as
case specific disclosure on 12 November 2020.
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provided with a copy of a document entitled ‘General Review’ by Brian Altman
QC dated 15 October 2013 which, amongst other matters, extensively referred
to the Clarke Advice and its contents and conclusions®. Had the CCRC
considered that seeing the actual Clarke Advice would have assisted them,
they could have served POL with a s.17 notice (as they did in relation to many
other such documents, all of which were provided) ’;
10.2Any suggestion that the fact of, and substantive content of, the Clarke Advice
had not been revealed to the CCRC by POL is therefore factually incorrect.
® The CCRC were aware of the existence of Mr Altman QC’s General Review, and its content was
summarised to the CCRC on 5 June 2014 in correspondence from POL. The CCRC formally requested
a copy of the General Review by way of a s.17 notice dated 14 January 2015.
7 It should not be thought that the fact that no disclosure of the Clarke Advice was made to the CCRC
without a s.17 notice is suggestive that POL has resisted disclosure of that advice or any other material
that would assist the CCRC. The process that has been agreed and adopted between POL and the
CCRC is that the CCRC is made aware of what material POL is in possession of during discussions
with POL, and the then CCRC informs POL what documents it wishes to see by way of a s.17 notice.
POL has been fully co-operative with the CCRC throughout, informing them of what material is available
and providing it whenever requested to do so.
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