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2020 01558 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
BETWEEN:
REGINA
-V-
HAMILTON & OTHERS
SUBMISSIONS ON BEHALF OF THE RESPONDENT IN RELATION TO THE
APPLICATION BY NICK WALLIS FOR ACCESS TO PAPERS IN THE
PROCEEDINGS
SUMMARY OF THE RESPONDENT’S SUBMISSIONS
1.
There is a clear presumption in favour of open justice, and a clear public interest
in facilitating fair and accurate reporting of court proceedings. The Respondent is
committed to ensuring open and fair reporting of matters properly ventilated in open
court.
The Clarke Advice has not been read aloud in open court (or treated as such).
Therefore, it is for the Court to decide what access to it should be provided to Mr
Wallis, if any, in accordance with Criminal Procedure Rule 5.8 and Criminal
Practice Direction 5B and in light of the ongoing investigation into Mr Jenkins.
The Respondent has produced a disclosure note to assist the Court with this
decision and to place the Clarke Advice in its proper context.
The Court may wish to consider allowing Mr Wallis and other interested journalists
to inspect the Clarke Advice and disclosure note to ensure that any future reporting
of the case is fully informed, subject to any such provision being subject to the sort
of restrictions envisaged in Criminal Practice Direction 5B.15.
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INTRODUCTION
5. By way of an application dated 26 November 2020, Nick Wallis has made an
application under Criminal Procedure Rule 5.8 for the following:
(i) A copy of the advice (“the Clarke Advice”) appended to the Appellants’ Note
dated 16" November 2020 from Paul Marshall, Flora Page & Aria Grace
Solicitors;
(ii) An order that “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”;
(iii) An order that “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”;
(iv) To “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”;
(v) To “allow the media to receive any written and/or orders/rulings made by
the court once approved”
6. These submissions are intended to assist the Court in its consideration of the
above applications by identifying the relevant legal and factual position, and to set
out the Respondent's position in relation to the applications.
LEGAL PRINCIPLES
7. Applications by the media for information and documents relating to a case from a
Court officer are governed by Criminal Procedure Rule 5.8 and Criminal Practice
Direction 5B.
8. The proper approach to such applications is helpfully summarised in the “Reporting
Restrictions in the Criminal Courts” guidance published by the Judicial College
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dated June 2016". In particular, part 5.2 (starting on page 32) deals with access
to documents held on court files and part 5.3 (starting on page 33) deals with media
access to “prosecution materials”.
9. There is a clear presumption in favour of open justice, and a clear public interest
in facilitating fair and accurate reporting of court proceedings. This does not,
however, mean that there is a presumption in favour of releasing documents to the
media that have not yet been read aloud in open court (or treated as such):
9.1 Where a document has been read aloud in open court (or treated as such),
then that document should generally be made available (see Criminal Practice
Direction 5B.12 & 5B.13). The presumption is stronger in cases where the
document has actually been read aloud than where it is only treated as such;
9.2 Criminal Practice Direction 5B.14 & 5B.15 deal with documents which have
been read aloud in part or summarised aloud:
5B.14 Open justice requires only access to the part of the document that
has been read aloud. If a member of the public requests a copy of such a
document, the court should consider whether it is proportionate to order
one of the parties to produce a suitably redacted version. If not, access to
the document is unlikely to be granted; however open justice will generally
have been satisfied by the document having been read out in court.
5B.15 If the request comes from an accredited member of the press (see
Access by reporters below), there may be circumstances in which the court
orders that a copy of the whole document be shown to the reporter, or
provided, subject to the condition that those matters that had not been read
out to the court may not be used or reported. A breach of such an order
would be treated as a contempt of court.
9.3 Criminal Practice Direction 5B.19 deals with documents provided to the court
but to which confidentiality attaches:
5B.19 A document the content of which, though relied upon by the court,
has not been communicated to the public or reporters, nor treated as if it
had been, is likely to have been supplied in confidence and should be
treated accordingly. This will apply even if the court has made reference to
1 https://www.judiciary.uk/wp-content/uploads/2015/07/reporting-restrictions-quide-may-2016-2.pdf
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the document or quoted from the document. There is most unlikely to be a
Sufficient reason to displace the expectation of confidentiality ordinarily
attaching to a document in this category, and it would be exceptional to
permit the inspection or copying by a member of the public or of the media
of such a document. The rights and legitimate interests of others are likely
to outweigh the interests of open justice with respect these documents.
9.4 Criminal Practice Direction 5B.25 deals with the approach to Material
disclosed under CPIA 1996 as follows:
To the extent that the content is deployed at trial, it becomes public at that
hearing. Otherwise, it is a criminal offence for it to be disclosed: section 18
of the 1996 Act.
Although the post-conviction disclosure in this case is subject to the common
law and not the CPIA 1996 disclosure regime, the Court will be mindful of the
fact that post-conviction disclosure is subject to the common law rules of
implied undertakings and the duty of confidence? thereby engaging Criminal
Practice Direction 5B.19 above.
THE APPLICATION FOR THE CLARKE ADVICE
Background to, and significance of, the Clarke Advice
10.In an attempt to assist the Court and all Appellants, a disclosure note has been
prepared to place the Clarke Advice in context and to dispel some of the
misconceptions about the Advice and the manner of its disclosure that have been
introduced by the written and oral submissions by those representing the
Appellants Misra, Skinner and Felstead, and subsequently reported by the media
(including Mr Wallis). A copy of this note is annexed to these submissions.
2 The Supreme Court decision in R (on the application of Nunn) v Chief Constable of Suffolk
Constabulary and another (Respondents) [2014] UKSC 37 confirmed that post-conviction disclosure
was to be governed by the common law principles (per ex parte Lee (1999) EWHC Admin 242) and
referring to the 2013 Attorney General's Guidelines on Disclosure, which provided at paragraph 70 that
“Disclosure of any material that is made outside the ambit of CPIA will attract confidentiality by virtue of
Taylor v SFO [1999] 2 AC 177.” in which the court reaffirmed that the principles in Harman v Secretary
of State for the Home Department [1983] AC 280 applied in criminal proceedings.
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11.Contrary to what has been suggested, the matters raised in the Clarke Advice were
not hidden by the Respondent. The position is addressed more fully within the
disclosure note, but it should be noted that:
11.1The Respondent ceased to rely on Mr Jenkins as an expert witness;
11.2In 2013, the Respondent instructed Cartwright King solicitors to review the
convictions of any individual who had been convicted in a case since 1
January 20108 in which Horizon evidence had been relied upon;
11.3That review exercise took place over a number of months and involved post-
conviction disclosure of the known bugs being made (through disclosure of
the Helen Rose report and the Second Sight Interim report) in any case where
senior in-house counsel at Cartwright King considered that the disclosure test
was met on the facts of the case;
11.4The Second Sight Interim Report, which contained the details of the two bugs,
was released on 8 July 2013, and the Respondent posted a copy on its
website.
Provision of the Clarke Advice to the CCRC
12. The Court has helpfully forwarded a copy of a letter dated 24 November 2020 from
Sally Berlin of the CCRC who appears to have been provided with a copy of the
Clarke Advice on Sunday 15 November 2020 by Mr Nick Gould, solicitor at Aria
Grace with conduct of the appeals of Misra, Skinner and Felstead.
13.Within the letter, Ms Berlin indicates that the CCRC has not been served with a
copy of the Clarke Advice, but “cannot entirely rule out that the advice might have
been contained within the many thousands of Post Office documents which have
been made available to the CCRC throughout our review via an online ‘data room’.”
14. The Respondent does not believe that the Clarke Advice itself has been provided
to the CCRC, although the Respondent has placed the CCRC on notice both of
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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the existence and substantive content of the Clarke Advice since at least 27
February 2015:
14.1 The Respondent was in correspondence with the CCRC from 12 July 2013
in relation to the matters arising out of the Second Sight review;
14.2 To ensure that the post-conviction review being conducted by Cartwright
King was appropriate, the Respondent instructed Brian Altman QC, among
other things, to conduct a review of the process (although not the individual
decisions in reviewed cases). The resultant document entitled ‘General
Review’ by Brian Altman QC dated 15 October 2013 extensively referred,
among other matters, to the Clarke Advice and its contents and conclusions;
14.3 The CCRC was aware of the existence both of the Cartwright King review
and of Mr Altman QC’s General Review;
14.4 Ina letter addressed to Ms Berlin dated 5 June 2014, the conclusions of the
General Review were summarised. The CCRC formally requested a copy
of the General Review by way of a s.17 notice dated 14 January 2015 and
the Respondent provided it to them on 27 February 2015;
14.5 It follows that the CCRC were on notice not only of the existence of the Clarke
Advice by 27 February 2015, but also of its content and conclusions;
14.6 There has been full cooperation between the Respondent and the CCRC in
relation to the provision of material sought. An iterative process was adopted
between the Respondent and the CCRC whereby the material requested by
the CCRC by way of s.17 notice was informed by discussions with the
Respondent about the material it holds*. The Respondent has complied with
all s.17 requests made of it.
15. The Respondent further observes that all GDR disclosure in the case is provided
to the CCRC (by way of s.17 notice) as a matter of course. As such, because the
Clarke Advice forms part of Tranche 3 GDR disclosure, it would have been
provided to the CCRC on or around 4 December 2020 in any event.
Respondent’s stance in relation to the application
4 The Court will appreciate the importance of ensuring that all material is provided pursuant to a s.17
notice as it is the statutory mechanism intended by Parliament to enable a party providing material to
preserve LPP over documents provided to the CCRC (per s.25).
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16.As Mr Wallis’ application accurately states, the Respondent's position as conveyed
to Mr Wallis is that:
“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.”
17.Whilst the Respondent is committed to ensuring open and fair reporting of matters
properly ventilated in open court, the Court may wish to take the following factors
into consideration in considering Mr Wallis’ application:
17.1 At present, the Clarke Advice has not been read in open court;
17.2 Although not CPIA disclosure, the principles derived from Criminal Practice
Direction 5B.25 are clear that disclosed material ought not to be released
unless and until it is placed into the public domain in open court. Moreover,
the common law principles governing post-conviction disclosure® are such
that it is protected by confidentiality and therefore Criminal Practice Direction
5B.19 applies;
17.3 Although disclosed in accordance with the Respondent's disclosure
obligations in Nunn, it should be kept in mind that the Clarke Advice is and
remains a document to which privilege attaches. Any waiver is expressly
limited to its use within the appeal proceedings;
17.4 At the hearing on 18 November 2020, Mr Altman QC mentioned the Clarke
Advice in the context of drawing the Court's attention to the e-mail from Miss
Page to Lewis Page. In doing so, there was reference to the nature of the
content of the document, but the contents were neither read in open Court
nor substantively summarised within the meaning of Criminal Practice
Direction 5B.14;
17.5 Later in the hearing on 18 November, during consideration of a separate
hearing to deal with the discrete point of law relating to whether the Court
was bound to consider argument on ground two of the CCRC’s Statement of
5 See footnote 2 above
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Reasons, Mr Marshall started to read, or at least summarise, parts of the
Clarke Advice, but the Court stopped him and made clear that the Advice
was irrelevant to the matters under discussion at the hearing. As such, the
Clarke Advice was not read or summarised by Mr Marshall within the
meaning of Criminal Practice Direction 5B.14;
17.6 Likewise, the written submissions to which the Clarke Advice was attached
did not relate to matters that were dealt with in argument at the hearing on
18 November;
17.7 Subject to the Court's view on whether the Court is obliged to consider
ground 2 of the Statement of Reasons® (and/or give leave to Mr Marshall to
advance new second limb abuse submissions), it may be that the Clarke
Advice will never be a document referred to during legal argument, as it
would be unlikely to be relevant to any submissions advanced under the
CCRC’s first ground;
17.8 In any event, the Court is aware of the ongoing investigation into Mr Jenkins
and another, and has already indicated that it is mindful that consideration
might have to be given to reporting restrictions in light of the state of the
investigation at the time that the Clarke Advice becomes relevant (if it ever
does).
18. Notwithstanding the above, the Respondent is keen to assist the Media to ensure
fair and accurate reporting, which includes assisting the press covering cases to
be properly informed about the issues in their proper context. The Court may wish
to consider allowing Mr Wallis and other interested journalists to inspect the Clarke
Advice and disclosure note to ensure that any future reporting of the case is fully
informed, subject to any such provision being subject to the sort of restrictions
envisaged within the terms and conditions of Criminal Practice Direction 5B.15.
THE APPLICATION FOR ADDITIONAL GROUNDS & SUBMISSIONS
19.The Respondent has already assisted Mr Wallis by providing a copy of the
Respondent's Notices.
6 A matter to be resolved at the hearing on 17 December 2020
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20.It is respectfully submitted that Mr Wallis’ application for an order directing
individual appellants to provide documents is misplaced. Criminal Procedure Rule
5.8 expressly governs applications for provision of information and documents by
court officers, not by the parties.
2
.It is submitted that it is preferable that the Court should be the gatekeeper for such
requests in accordance with the Criminal Procedure Rule scheme to ensure that
any provision of material is consistent with the Court’s duty to consider such
applications with all relevant considerations in mind.
OTHER APPLICATIONS
22.In respect of the request for an order that the Court direct that the parties must
provide a named contact for media enquiries, the Respondent has no objection to
providing such a point of conduct (and has done so), but queries whether the Court
could or should require individual firms of solicitors to have such a point of contact.
As noted above, Criminal Procedure Rule 5.8 expressly governs applications for
provision of information and documents by court officers, not by the parties.
23.The list of representation is a matter of public record, and there could be no
objection to this being provided to Mr Wallis (and any other interested journalist or
media organisation). It would then be a matter for the media to contact each firm
to ascertain whether they are willing to co-operate.
24.Subject to the Court's absolute right to restrict reporting of proceedings, the
Respondent has no objection to the applications at paragraph 5(iv) and (v) above.
25.In relation to the application for transcripts and written rulings, the Court will wish
to have regard to Criminal Practice Direction 5B.29 to 33.
BRIAN ALTMAN QC
ZOE JOHNSON QC
SIMON BAKER
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JACQUELINE CAREY
30 November 2020
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