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For Hearing 8'" December 2022
IN THE MATTER OF A PUBLIC INQUIRY
THE POST OFFICE HORIZON IT INQUIRY
(1) TRACY FELSTEAD
(2) SEEMA MISRA
(3) JANET SKINNER
(4) LEE CASTLETON
(5) NICHOLA ARCH
(6) VAY PAREKH
(7) SATHYAN SHU
SUPPLEMENTARY
SUMBMISSION ON COMPENSATION
“Parties are entitled to legal process in order to prosecute legitimate causes.
Since access to justice is available for the redress of wrongs, a party who uses it
for the commission of a crime or a wrong forfeits the right of access in relation
to the particular cause. Striking out a case for abuse of process is primarily
designed to protect the legitimacy of the court’s own process. For a court that
suffers its process to be used for the commission of a crime or a wrong will lose
public confidence in its ability to maintain the rule of law.” !
1 AAS Zuckerman “Court protection from abuse of process— the means are there but not the will.” (2012) 31
CLQ, Issue 4, 377 at p.378.
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“Both solicitors and counsel (as officers of the court) bear a heavy responsibility
to ensure that their clients fully comply with these duties. They must make their
clients appreciate from the start their obligation to make full and honest
disclosure, to avoid suppressing documents and to preserve documents from
loss or destruction. Where a solicitor becomes aware that a client refuses to
comply with their disclosure duties, they may be duty- bound to withdraw, or
even to notify the court. Barristers are similarly required to cease to act for a
client who refuses to authorise them to make some disclosure to the Court
which their duty to the Court requires them to make ...” ?
(Note: This supplementary submission addresses and amplifies the submission made by Paul
Marshall (1 December 2022) from paragraph 15 ff. Apologies are profusely tendered by
leading counsel for the delay in its submission. His instructing solicitors, junior, and Mr
Marshall are not responsible in any way for the late submission of this document)
Summary: POL, from 2000 to 2021 sought to deny, obstruct, and suppress the fact that
Horizon was subject to bugs, errors, and defects, and therefore unsuitable as a forensic
prosecutorial dataset. It maliciously and intentionally interfered and denied those
wrongly convicted over many years any prospect of appeal. Three cases: Castleton,
Brennan, and Butoy show that the senior judiciary (in EWHC and CACD) were misled
by POL in 2004, 2007, and 2018.
This was motivated by ruthless commercial interests. Over 700 SPMs were prosecuted
to serve this fiction, or myth. The abuse of prosecutorial power is without precedent
- standards of integrity, impartiality, and independence were abandoned in favour of
partisanship and bias.
Government cannot escape responsibility for this, as it failed to supervise and
inquire.
Fujitsu’s symbiotic relationship with POL facilitated these appalling miscarriages
of justice. It was financially beneficial for them to do so, and reputationally
expedient. Fraser J (when writing to the DPP) said that he had “very grave concerns
2 AAS Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (4the Edition) (Sweet & Maxwell
2021) 815
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regarding the veracity of evidence given by Fujitsu employees to other courts in
previous proceedings about the known existence of bugs, errors and defects in the
Horizon system.” He did not impute cupidity to them as a motive, but it seems that
loyalty to the corporate they served overcame any consideration of their duties as
experts to the Court.
The long delay in this matter being exposed, after the most bitterly fought litigation,
has wrought enormous harm on the victims. Years passed, and their faith in our
system of justice was destroyed, in the same way that the Law was used to destroy
them. The intentional and malicious denial of their right to appeal is inexcusable and
a grotesque injustice that ought to be compensated. That it is not a head of damage
is perhaps explained by the rampant breaches of prosecutorial and professional
standards, and POL’s abject lack of objectivity and integrity, amply demonstrated
over many years.
The matters addressed below advance the following propositions:
a. POL engaged in a deliberate policy of misleading the Courts. It not merely
disregarded but broke the Law in failing to follow well known and long-
established norms of independence and impartiality (established by the Civil
and Criminal Procedure Rules, the Attorney General’s Guidelines on
Disclosure, the CPIA and Codes of Practice. POL, in deliberately departing
from the same, whether through self-justification or partisanship, may have
committed criminal offences.
b. This approach, implacable and hostile to its victims, denied the wrongly
convicted the chance to clear their names. The failure to rectify the position
also allowed POL to criminalise and devastate the lives of countless others.
The High Court was misled [Castleton] and two appellants had their appeals
dismissed by the CACD before Hamilton was decided [Brennan and Butoy]. It
suppressed vital information and frustrated and deprived the wrongly
convicted the means to appeal for many years;
c. The CCRC decided to await the outcome of the Horizon litigation before
making a referral to the CACD. POL’s breakneck, no holds barred tactics in the
Bates litigation must be seen in that context. More inexcusable delay was
inflicted on the victims. The conduct of POL in Bates is directly relevant — it
hazarded the entire system of civil justice, knowing what was at stake.
d. This head of damage, the long delay, caused by POL’s deliberately false and
misleading conduct, and protracted misfeasance facilitated by sub-optimal
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Government supervision, and Fujitsu's active deception is not recoverable in
damages in the current compensation negotiations. Such ineligibility cannot
be justified.
. It should be an important factor in the assessment of compensation. The
protracted injustice, and denial of appellate rights, is inseparable from the
egregious wrongdoing attested to before the High Court and determined by the
CACD. This major head of damage, should it not fall to be compensated, will
work continuing injustice.
This is because the gravamen of the wrongs inflicted by the atrocious abuse of
the legal system, if not given any weight (as currently proposed) does not mark
the very grave nature of the damage, and denies proper restitution to the SPMs.
. THE PERNICIOUS EFFECT OF OBSTRUCTING & DELIBERATELY
DENYING A RIGHT OF APPEAL
. Delay is a potent source of injustice, its corrosive effect exacerbated years of
malicious non-disclosure.
A. Tracy Felstead spent half her life deemed to be a felon, from the age of
19 to the age of 41 — she should never have been prosecuted at all, but
her ordeal was prolonged by obdurate, aggressive denial by POL of its
excess - even through its attempt to suppress and evade the
consequence of its wrongdoing in CACD, in Hamilton. Tracy suffered
hostility from unexpected quarters, together with Janet Skinner and
Seema Misra, owing to the courageous and principled stance they took,
which was ultimately vindicated. Limb 2 could, of course, have been
abandoned as a result of the asperity and criticism they were subjected
to. POL knew this.
B. The taint of conviction: for years those who suffered injustice
encountered extreme difficulties restarting their careers or businesses in
any cash handling or retail business. This would include being denied
finance or credit. Unremediated allegations of dishonesty — especially
in small and often quite tightly knit communities — are crushing. The
stigma is ineradicable.
C. The extraordinary decimation of family life. The stigma, especially in
small tight knit communities has ripped family life asunder: victims
become outcasts or pariahs. This agony was unnecessarily prolonged for
years.
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B. BACKGROUND: GOVERNMENT_ RESPONSIBILITY FOR THE POST
OFFICE [POL] [SUBS0000001]
1. As BEIS submitted, the Post Office is Government owned and exists
to provide a public service [1]. Its history as a Public Corporation,
from 1969, is encapsulated at [27] (a) to (j) at pp.18-19 of BEIS’
submission.
2. As was submitted by Ms Buch KC on behalf of Tracy Felstead, J anet
Skinner, and Seema Misra in the Court of Appeal:
Post Office Limited
7. POL is an emanation of the State: Whitfield v Lord Lé Despencer
(1778) 2 Cowp 754 at 764; Mersey Docks & Harbour Board Trustees v
Cameron (1864) 11 HLC 443 at 464; Tamlin v Hannaford [1950] 1 KB
18; Triefus & Co Ltd v Post Office [1957] 2 QB 352 at 362; Malins v
Post Office [1975] ICR 60; Harold Stephen & Co Ltd v Post Office
[1977] 1 WLR 1172 at 1177.
8. POL is now incorporated as a company. In exercising its powers
as an investigator and a prosecutor, however, it has the same duties and
responsibilities as other public bodies which exercise those powers: for
details see the CCRC SoR, paragraph 65; Criminal Procedure and
Investigations Act 1996 Code of Practice (“CPIA CoP”), §1.1. Since its
incorporation it has been the subject of judicial review proceedings, i.e.
as a public body: R v Post Office, ex p Association of Scientific Technical
and Managerial Staffs [1981] ICR 76.
3. The Post Office, in essence, as the Inquiry has heard, was originally
a powerful arm of the State from the 17 Century. As BEIS and UKGI
candidly accept, the fact that it is owned by Government makes
matters worse.
4. Much worse, we submit, because the prodigious sums of public
money spent on legal services by POL, first to criminalise innocent
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SPMs, and thereafter obstruct and deny them the means to clear their
names, is not only a tragedy for the victims, but a national scandal
that calls into question the very administration of justice and equality
before the Law. POL’s conduct undermined both civil and criminal
justice and denied its victims effective access to the courts. The
mischief wrought, in which the courts became complicit is profound.
Evidence, routinely accepted by the courts against SPMs was
fabricated or perjured. At the very least flawed expert evidence was
relied upon to secure convictions. Evidence helpful to the defence
was concealed or withheld, and in consequence the SPMs, who
should never have been prosecuted in the first place, remained
convicted directly because of POL’s actions.
5. The ‘profound anger and dismay’ expressed on behalf of BEIS
concerning this tragedy, although laudable, does not answer the
question as to why POL was allowed ‘free rein’ in the conduct of its
ruthless, indeed infamous, defence in the GLO Bates litigation. The
exorbitant sums it expended almost fatally compromised the ability
of the Court to dispense justice. POL00006764 shows the
membership of POL’s Postmaster Litigation Sub-Committee, which
imputes knowledge to the Board, and the Government, especially as
one non-executive director was appointed by UKGI, which is
referred to at paragraph 4:
Protocol for engagement with UKGI
The request from UKGI for regular briefings on the progress and
status of the litigation was discussed and it was noted that UKGI
and Post Office were discussing a draft protocol to enable such
information to be shared. The Committee noted that such
briefings could involve legally privileged information and that it
was important for such privilege to be maintained.
6. The minute suggests that POL would jealously defend legal
professional privilege. Whether LPP was used as a pretext to deflect
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scrutiny is not yet clear, but the presence of a Government appointed
NED ought to have defeated this strategem. What can be confidently
submitted is that there was a critical failure of Government
oversight, which facilitated POL’s disgraceful conduct during the
Bates litigation. POL’s excesses, amply demonstrated, were,
therefore, in part attributable to that lack of monitoring.
C. POL’S INTENTIONAL DENIAL & PROTRACTED OBSTRUCTION OF
CONVICTED DEFENDANTS’ RIGHT TO APPEAL
CONDUCT OF THE BATES LITIGATION
References to Bates v Post Office Judgment No 3 ‘Common Issues’ [2019] EWHC 606
(QB) are made in round brackets (x) and are not underlined
References in BOLD [X] relate to Bates v Post Office Limited Judgment (No6)
“Horizon Issues” [2019] EWHC 3408 unless otherwise stated
1. Itis apparent from Fraser J’s judgments that a perverse, antagonistic,
and uncooperative approach marked POL’s engagement
throughout. In Bates No.3 he observed at (544):
“The Post Office has appeared determined to make this litigation,
and therefore resolution of this intractable dispute, as difficult
and as expensive as it can.”
2. From this one may infer that POL chose to be relentlessly combative
trying to make the litigation as arduous and costly as possible. Fraser
J’s condemnation was not exclusively directed at POL, and given the
outright dismissal by Coulson LJ of bias, no lurking suspicion that
the judge was unbalanced in his condemnation of POL’s tactics can
be sustained. Such criticisms Fraser J made were detailed, but wide-
ranging, covering a litany of bizarre, questionable, and almost
incredible events (considering the quality of representation, and
issues so clearly identified which were at stake) which suggested that
POL may have even desired to disrupt, or derail the proceedings.
The pun “lawfare” is not wide of the mark - a ‘scorched earth’ policy
of obstruction, obfuscation, and aggressive adversarial conduct,
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without (so it seemed) even the most scant regard for the overriding
objective.
. There were disquieting issues of non-disclosure, or misleading
pleadings, submissions, or erroneous evidence, which could not be
sensibly understood. Fraser J’s treatment of the remote access issue
[319]-[321] [539] reveals that POL only disgorged the reality of
remote access after Mr Roll had given evidence, and that Fujitsu’s
expert, himself, seemed to have been unaware. There was also the
delay of two months (in the trial itself) between the existence of a bug
being drawn to the attention of POL’s solicitor, and onward
disclosure to the claimants [620]:
321. I consider this to be extremely important evidence,
both in resolving the Horizon Issues, and indeed in the
whole group litigation. Its import is obvious. It means that
Fujitsu could remotely insert a transaction into the
accounts of a branch using a counter number which was
the same as a counter number actually in use by the SPM
(or an assistant). This would appear to the SPM from the
records that they could see (and anyone else looking at
those records) as though the inserted transaction had been
performed in the branch itself. This information was only
disclosed by Fujitsu (and therefore the Post Office) in this
group litigation in January and February 2019. Even Mr
Godeseth, a very senior person in Fujitsu so far as Horizon
is concerned, said that he did not know this before.
539. I consider the significance of the previously factually
untrue statements to be considerable. The statement was
made publicly by the Post Office, turned out not to be
factually correct, and the Post Office gave an explanation
and said the full set of facts was now available. The
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situation was pleaded to by the Post Office in its Generic
Defence, with a statement of truth. That too turned out not
to be correct, and the true position has only emerged in the
Horizon Issues stage of the litigation as a result of the
evidence of Mr Roll, which I have dealt with above. It was
only following his written evidence that Mr Parker, and
Mr Godeseth — both senior Fujitsu employees — prepared
their supplementary witness statements correcting their
first statements. These first statements, as I have explained
above, were simply untrue in that important respect.
These witnesses had previously stated that this was not
possible. Mr Parker said Fujitsu did not have the power to
do this.
620. The conclusion to be drawn from this is that
disclosure was given in a manner that could only have
disrupted and delayed proper investigation of the issues
contained in the documents. In this specific case, that
includes the Drop and Go bug. That document should
have been provided to the claimants very rapidly once it
came to the attention of the Post Office's solicitors, not kept
“for the next couple of months”, as Mr Parsons puts it.
4. Questionable redactions to documents had been made, censoring
information that revealed that POL’s board were aware of flaws to
Horizon at the material time, which were described by Fraser J (at
247]) as being,
“not consistent with a view that the debt/suspensions/audit
losses are incurred by carelessness on the part of SPMs or
criminal activity. It is also hard to see how it could be justified
that these had been redacted originally.”
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5. The catalogue of criticisms can justly be described as monumental.
This is not a quantitative but a qualitative judgment. The concerns
expressed go to the very integrity of our system of justice, and the
premise upon which the parties are supposed to be governed under
the CPR. The misleading position on remote access has been
addressed, but three examples provide further proof of a litigant not
engaging with its duties:
a. Dr Worden was not properly instructed, partisan, failed to
follow the duties of independence and impartiality, made a
priori assumptions which were indefensible, and had
received latent briefings from Mr Jenkins that had not been
recorded or retained. His expert evidence and conclusions
were not reliable;
b. Mrs Van Den Bogerd, a key POL witness, its Business
Improvement Director was found to be a poor judge of
relevance, omitting to deal with matters that cut against the
grain of POL’s case. Her statements (adopted in chief) were in
key respects wrong, and undermined in cross-examination
because it appeared she had not reviewed or was even aware
of the documents the claimants intended to rely upon (417)
(418) (425) (544) [249]-[252];
c. The revelation of KELs and PEAKs was unsatisfactory. In the
case of the former, the KELs were only obtained, after
unwarranted objections were dismissed. As to the latter, the
existence of PEAKs was only discovered fortuitously by the
claimants’ expert, by chance, in 2018.
6. The Court expressed concerns in respect of the following:
1) Fettering judicial assessments of credibility (21)
2) Application to exclude or present evidence driven by PR
concerns (15) (156)
3) Insinuating judicial bias (28) (30) (35)
4) Denial of manifest relevance (34) (425) (570)
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5) Culture of secrecy especially re Horizon (36) (483) (545) (560)
(561)
6) Questionable Redactions (37) (39) (42) (120) (246) (247)
7) Document destruction/deprivation re dismissed SPMs (166)
8) XX of SPMs on instructions criticised/not upheld on evidence
(121) (123) (137) (138) (223) (228) (266) (269)
9) Resiling from agreed positions [20] [21] [23] [26]
10) Attempting to adduce evidence and deny XX [71]
11) Failure to acknowledge impact of Horizon defects [64]
12) “Ongoing legal cases” influencing disclosure? [426] [437]
13) Relevant documents disclosed after conclusion of trial [593]
617] [619
14) Disclosure obfuscation re KELs /Peaks criticised _[586]-[590]
592] [603]-[606] [609
15) Late disclosure impeding trial/fairness [520]-[522] [568] [569]
[615] [616] [619] [620][624] [625] [935]
16) Failure to call but evidence of Mr Jenkins’ latent involvement
in briefing experts [77] [508] [510] [880]
17) Misleading instructions/inaccurate_submissions [378] [379]
382] [565,
18) Criticism of expert evidence (Dunks - witness at trial of Seema
Misra) [294
19) Criticism of expert evidence (Worden) [698] [702] [709] [722]
[728] [809] [819.9] [820] [844] [876] [880][902]
20) Non-disclosure/LPP asserted re litigation strategy expert [556]
558
21) Second Sight material originally provided to Second Sight not
collated or fully disclosed to claimants [186]
22) Contractual restrictions on evidence: Jan Henderson [67] [190]-
195
23) XX_of SPMs on instructions criticised/not upheld on evidence
91] - [117
24) Serious accusations put without foundation [134-139]
25) Misleading pleadings: remote access [532-545]
26) Costs [59
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7. It is submitted that these matters, collectively, suggest a determined
attempt by POL to suppress disclosure of its LIMB 2 wrongdoing,
which must have been apparent to them for years. The misconduct
of disclosure, and irrational decisions motivated by ulterior
considerations, in the civil and criminal proceedings is now obvious,
both in the GLO trial and before:
A. The claimants and Fraser J were not informed of the Clarke
advice regarding Mr Jenkins, which may reveal the reason why
he was not called and yet used as an eminence grise to brief
Worden - not initially revealed - POL00006357
B. The claimants and Fraser J were not provided with disclosure of
the documents referred to by JBKC, CTI in opening which record
Mr Brian Altman’s KC involvement in advising on (among other
things) disclosure and compensation, such as POL00006801,
POL00006586, and POL00038538.Nor were these provided in
Hamilton;
C. Mrs Misra’s defence team in 2010 were not informed of the
Receipts/Payments Mismatch Bug [437] [458] [459] even though
the matter was ventilated shortly before her trial and circulated
to the legal department;
D. Neither Mr Castleton, nor Mrs Misra’s defence team were not
informed of the undermining material concerning Ms Chambers
(who gave evidence in the Castleton trial) that the Callendar
Square bug had been around for years, probably since 2010.
E. The attitude to disclosure demonstrated by the POLs CEO - in
2015 POL00029812
F. The approach to the Rose Review, and whether it was privileged
POL00006545
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G. That CK were advising POL on compensation in 2013 (Simon
Clarke) and yet the CACD proceedings were only resolved, after
a bitter fight on GoA Limb 2, in April 2021 POL00006801
H. This advice on compensation chimes with the following by Fraser
Jat [219]:
“By 2013 Horizon was an extraordinarily controversial subject;
there can simply be no sensible excuse for the Post Office’s failure
to try and understand this particular subject. This is particularly
reprehensible given that an internal Post Office document in
August 2013 showed that Mr Winn’s involvement in this was
because his area of responsibility was as follows: ‘also responsible
for resolving specific branch accounting issues’. It was his specific
job to resolve specific branch accounting issues, yet he decided at
the time that ‘we have enough on’. I agree with Mrs Ven den
Bogerd that this is inadequate — that is putting it at its most
favourable to the Post Office. Somewhat stronger terms are also
justified”.
8. Appellate proceedings in EWHC and CACD did not bring POL to its
senses — in fact three cases demonstrate the degree of wrongdoing:
Lee Castleton’s case (Anne Chambers); and material non-disclosure
in:
Regina v Lisa Margaret Brennan [2004] EWCA Crim 1329
Regina v Harjinder Singh Butoy [2018] EWCA Crim 2535
9, The UKSC decision in R (Nunn) (Appellant) v Chief Constable of
Suffolk Constabulary and another (Respondent) [2014] UKSC 37
requires the CPS to co-operate in making enquiries that have a real
prospect of uncovering something affecting the safety of a
conviction. There can be no doubt that by 2018, contemporaneous
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with the GLO/Bates litigation, that POL’s conduct is difficult to
understand, except by way of deliberate obstruction, that featured so
heavily in that litigation, and its resistance to GoA 2, Limb 2 in
Hamilton.
10. The problem of non-disclosure reveals an attitude, of course, as was
identified by Fraser J, in a scathing passage, in the Horizon Issues
Trial, which deals with the delay in disclosing bugs, errors and
defects, and the myopia of POL as to their relevance:
440. I will reproduce two entries from one of these documents, a
PEAK with reference PC0103864. This shows that on 3 June 2004
an SPM reported "that he had a problem with some transfers
yesterday, he was transferring stock and cash between the aa
main stock unit and the bb shared stock unit and although only
one transaction shows for the transfer out the transactions were
transferred into the bb stock unit twice giving the pm a
discrepancy.”
441. The discrepancy in the cash account was £22,290 in total
(shown in the entry for 8 June 2004) although the reconciliation
error reported by the Host was £44,580. This was finally resolved
on 5 August 2004 with the issue of an error notice. There is
nothing to suggest that the SPM was told that this had been
caused by a software bug.
442. The Post Office's approach to this, in my judgment, entirely
misses the point. In my judgment, the above passages are simply
extraordinary. Two of the documents above are dated 2010, some
9 years ago. The PEAK is from 2004, 15 years ago. Their contents
support the claimants’ case on the Horizon Issues. Fujitsu knew,
to take Callendar Square as an example, that this bug existed in
Horizon. They knew that it had affected branch accounts. It was
not, as the Post Office puts it "unnecessary and inappropriate" to
notify SPMs of this. I have listed the points on this bug at [425]
above omitted by Mr Godeseth from his written evidence. Those
same points all lead to the same conclusion in my judgment,
namely that the Post Office ought to have notified, at the very
least, all those SPMs whose branch accounts had been impacted
by this bug that this had occurred, and that it had occurred as a
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result of a software bug. The fact that the integrity of Horizon
data was a live issue at this time should not have influenced the
decision to notify SPMs of a software bug. Further, the Post
Office's explanation in its submissions that SPMs had their
accounts "corrected in the ordinary course" is not a suitable
phrase, unless by "ordinary course" one means keeping the cause
or reason for the correction secret and therefore hidden from the
other party in the accounting transaction, namely the SPM. Also,
one is not educating users in the details and terminology of the
system (as suggested by Dr Worden) if one informs them that
there is a software bug in the system and its symptoms are as
follows. This is relevant to Horizon Issue 2, namely whether the
Horizon IT system itself alerted SPMs of such bugs, errors or
defects as described in Issue 1 above and if so how, and also
Horizon Issue 9, which concerns transaction data and reporting
functions available to SPMs. It is also relevant to Dr Worden's
consideration of countermeasures, which he considers includes
vigilance by users (which means SPMs).
D. OBSTRUCTION AND MOTIVE INFERRED FROM THE VARIOUS
JUDGMENTS OF FRASER J IN THE HORIZON GLO BATES LITIGATION
AND THE CACD IN HAMILTON: GOA 2/LIMB 2 ABUSE
Hamilton v Post Office [2021] EWCA Crim 577
Bates v Post Office Limited Judgment (No6) “Horizon Issues” [2019] EWHC
3408
REPUTATIONAL, DISCIPLINARY, _AND FINANCIAL _ MOTIVES
GOVERNING POL’S OPPRESSIVE APPROACH
1. The CACD encapsulated the Limb 2 submission as follows:
137. In those circumstances, the failures of investigation and disclosure
were in our judgment so egregious as to make the prosecution of any of
the “Horizon cases” an affront to the conscience of the court. By
representing Horizon as reliable, and refusing to countenance any
suggestion to the contrary, POL effectively sought to reverse the burden
of proof: it treated what was no more than a shortfall shown by an
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unreliable accounting system as an incontrovertible loss, and proceeded
as if it were for the accused to prove that no such loss had occurred.
Denied any disclosure of material capable of undermining the
prosecution case, defendants were inevitably unable to discharge that
improper burden. As each prosecution proceeded to its successful
conclusion the asserted reliability of Horizon was, on the face of it,
reinforced. Defendants were prosecuted, convicted, and sentenced on
the basis that the Horizon data must be correct, and cash must therefore
be missing, when in fact there could be no confidence as to that
foundation.
2. As may be seen, it was in POL’s interest to maintain that Horizon was
infallible for administrative, financial, and disciplinary purposes. The myth
of the ‘incontrovertible loss’ was used to harrow SPMs into submission, or
dismissal and prosecution. Astonishingly, at the specific request of POL
Horizon had no function for disputing transactions. This omission was to
become an oppressive feature in all these cases, revealing the disparity of
power between POCL and the SPMs. As Fraser J noted in the ‘Horizon
Issues’ judgment at [300]:
it was a specific Post Office decision not to have any dispute
button/function for SPMs built into the Horizon system.
3. The consequences of this omission, combined with the suppression of
information relating to Horizon’s bugs, errors, and defects, provides
important context to the prosecutions that followed, and the imbalance of
power. As was noted by the CACD at variously between [9] to [32] and
specifically at [22]:
appellants understood, and were led by POL to understand, that they
were required to make good any shortfall shown by Horizon, whether
or not they accepted that there was a genuine shortfall, and whether or
not there was any negligence or dishonesty on their part. They further
understood, and were led to understand, that they would be liable to be
dismissed if they did not do so.
4. Fraser J further observed:
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1000. Because the reports and data available to SPMs were so limited, their
ability to investigate was itself similarly limited. The expert agreement to
which I refer at [998] above makes it clear in IT terms (based on the
transaction data and reporting functions available to SPMs) that SPMs
simply could not identify apparent or alleged discrepancies and shortfalls,
their causes, nor access or properly identify transactions recorded on
Horizon, themselves. They required the co-operation of the Post Office.
5. The prosecutions revealed the very opposite. POL was obdurate in denying
disclosure, and financial considerations did not play a small part in this
given the loss of revenue from DSS. Prosecutions were conducted in this
vein, as detected by Second Sight POL00022772 at page 50/96:
25.21. We are aware of cases where criminal charges have been brought
which appear to have been motivated primarily by Post Office's desire
to recover losses. In some cases, those criminal charges do not seem to
have been supported by the necessary degree of evidence and have been
dropped prior to trial, often as part of an agreement to accept a guilty
plea to a charge of false accounting, so long as the defendant agreed to
repay all of the missing funds.
6. This practice was made more oppressive by the CACD’s finding (a
consistent feature of the upheld appeals) at [261] that:
It appears there was no evidence to corroborate the Horizon evidence.
There was no investigation into the integrity of the Horizon figures.
There was no proof of an actual loss as opposed to a Horizon-generated
shortfall.
7. At the same time, the campaign to maintain the myth, in the media, and
before Parliament, concerning vehement denials of remote access, were
considered by Fraser J, when he summarised the misleading statements as
follows at [554]
“which included public and high profile statements such as the
response to the BBC Panorama programme, whatever may have
been said on the subject to the Select Committee, as well as in its
own pleadings — about remote access without the knowledge of
SPMs. The Post Office should have done its best to discern whether
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such remote access was possible when this subject first arose, and
whether it had occurred, before such statements were made. Fujitsu
should have been frank and unequivocal, internally, with the Post
Office, so that there could be no possibility of incorrect statements
on this important point being made publicly by the Post Office. The
Fujitsu witnesses should not, in their first witness statements, have
made the incorrect statements that they did. Had those initial
statements been factually accurate, there would have been no need
for the supplementary statements from them that eventually led to
the true position being accepted by Fujitsu, and therefore by the
Post Office. It is highly regrettable that such a situation as this
should have developed ...”.
D. THE LAW
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THE MALICIOUS VIOLATION OF THE ECHR ARTICLE 6 RIGHT TO
THE HEARING OF AN APPEAL WITHIN A REASONABLE TIME
The right to an appeal within a reasonable time is of “extreme importance for
the proper administration of justice”. Lord Rodger in A-G’s Reference No 2
of 2001 said:
“By definition, the undue delay with its harmful effects occurs
by the time the hearing comes to an end. The relevant authorities
cannot remedy the situation and give the defendant his due by
holding a fresh hearing - this could only involve still greater
delay, prolonging the disruption to the defendant's life and so
exacerbating the violation of his Convention right. But the fact
that this particular breach of article 6(1) cannot be cured by
holding a fresh hearing is not just some quirk of the Convention
that happens to put the relevant authorities in a particularly
awkward position. On the contrary, it stems from the very
nature of the wrong which the guarantee is designed to
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counteract. If the responsible authorities cannot go back and
start again, neither can the defendant. For both sides time
marches on. When the authorities delay unreasonably, months
or years of the defendant's life are blighted.” He cannot have
them over again; they are gone forever. By signing up to article
6(1) states undertake to avoid inflicting this kind of harm. Since
the harm is irretrievable, the European Court of Human Rights
("the European Court") is correct to regard this right as being of
"extreme importance" for the proper administration of justice
(Guincho v Portugal (1984) 7 EHRR 223, 233, para 38).”
It follows that interference with/denial of the right to appeal is similarly of
“extreme importance”.
Further denial of the right results in “irretrievable” harm. While no court has
yet considered the circumstances in which the Post Office suppressed and
withheld from those defendants it had convicted, the information and
material that it had in its possession that was reasonably necessary for them
to appeal their conviction, for present purposes that it did so is assumed. On
the face of it that it did so is strongly supported and evidenced by among
other things:
a. The suppression/withholding of disclosable material in the July 2013
Clarke Advice from defendants and from the CCRC, until November
2020.
b. Non-disclosure of material in the Detica Net Reveal report of 2013.
Cc The obstruction, then dismissal of Second Sight.
d. Non-disclosure that the Post Office had notified its insurers of risk in
2013.
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e. The resistance to disclosure of knowledge/documents relating to the
prevalence of bugs in the Horizon system, including, in particular, the
Receipts and Payments Mismatch bug.
f. Maintenance of the false denial until 2019 of the facility to remotely
access and manipulate data at Post Office branch accounts without
postmaster knowledge (or permission).
The circumstances are unprecedented. There is no known instance in the
reported decisions - or in the jurisprudence of the ECtHR- of a prosecuting
authority systematically denying/subverting the right of significant numbers
of convicted defendants their right to appeal.
The Post Office had a commercial purpose in denying/obstructing a
defendant's right of appeal (see main submissions). It is submitted that that
was the same improper purpose as in its prosecutions — the protection of
Horizon and the Post Office’s commercial interests.
Given that, analytically and jurisprudentially the violation of the right to
appeal within a reasonable time — a right of extreme importance — is separate
from the issue of whether a trial was fair or an abuse of process, it follows that
as a matter of law, interference with the right of appeal is a separate and
discrete wrong.
It is separate and discrete from both the denial of a fair trial, viz first and
second category abuse of process as found in Hamilton and Ors. v Post Office
Ltd, it is also, for the same reason, necessarily separate and discrete from the
civil wrong in the tort of malicious prosecution — which is concerned with the
bringing and prosecution of legal proceedings with an improper motive and
purpose - maliciously.
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10.
11.
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In the same way that the Post Office maliciously prosecuted its postmasters,
for the purpose of protecting the Horizon System against challenge and for
the protection of its own commercial interests, the Post Office was concerned
to obstruct and deny those it had convicted in precluding them successfully
appealing their convictions. The full nature of that scheme is yet to be
examined and it will be considered in this Inquiry. But its fact should be
recognised as a wrong independent of and separate from malicious
prosecution. The wrong is the malicious violation of the Article 6 right to the
hearing of an appeal within a reasonable time.
It is the delay in the first of hundreds of appeals coming on for appeal in April
2021 that is the most extraordinary, and yet to be fully examined and
explained, feature of the Post Office fiasco.
The revelation of the July 2013 Clarke Advice, is emblematic of the central
importance of this issue. It is elementary that the Clarke Advice revealed
what until 2020 could only be guessed at, namely that there was an event the
importance of which caused the Post Office to fundamentally change its
prosecution policy from 2014. As Paula Vennells C.B.E. explained to Mr
Darren Jones M.P., Chair of the BEIS Select Committee, in June 2020, the Post
Office from 2014 effectively ceased prosecuting its postmasters for Horizon
shortfalls.
Even in 2020, the Post Office was engaged in vigorously seeking to manage
the disclosure of the Clarke Advice. The Post Office sought to persuade the
Court of Appeal to restrict its hearing, of the 42 appeals referred by the CCRC
under s. 9 of the Criminal Appeal Act 1995, to only one ground of appeal,
namely first category abuse of process, that was not opposed in 39 appeals.
The Post Office expressly submitted to the Court of Appeal (on Mr Nick
Wallis’s application for disclosure of the Clarke Advice) that if the Court
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12.
13.
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limited its consideration to the issue of the ground of appeal of ‘first category
abuse of process’ ~ fair trial as the Post Office urged it to do, the July 2013
Clarke Advice would not fall to be considered by the Court of Appeal and
would accordingly never be in the public domain. Other than the writers of
this Supplemental Submission, all the other lawyers engaged in the appeals,
before January 2021, were content that the Court of Appeal should not
consider second category abuse of process as a separate ground of appeal.
That position changed after the decision in Hamilton and ors. v Post Office
Ltd [2021] EWCA Crim 21.
The Clarke Advice of July 2013 is of fundamental importance. It exposes the
fact that from 2013, at the latest, the Post Office had the clearest possible
evidence that its prosecutions were in many instances likely to have been
flawed because of incomplete and misleading evidence given to the court of
the reliability of Horizon — invariably a fact that was taken as a “given” in
prosecutions until challenged head-on in Mrs Seema Misra’s prosecution. The
Post Office was so concerned in 2013 that in August 2013 it notified its insurers
(not disclosed as it ought to have been in the Bates GLO litigation). But the
Post Office took active and wholly improper steps to withhold that
knowledge from those it had prosecuted, thereby visiting upon them untold
and unimaginable suffering in precluding them asserting and and
establishing their right to exoneration.
In the absence of the law providing a remedy for the Post Office’s malicious
denial of/interference with the right of convicted defendants to an appeal
within a reasonable time, that right, recognised by the European Court and
the House of Lords to be of “extreme importance” the right remains a mere
aspiration. Such a conclusion is contrary to principle and would stand as a
reproach to any proper conception of justice.
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14. The extraordinary feature of the Post Office in its capacity as prosecuting
authority, is that from its first Horizon prosecution, shortly after the roll-out
of Horizon in 1999, until 2021, the Post Office actively subverted the criminal
justice system. In doing so it effectively denied to them a functioning justice
system in any meaningful understanding of that expression, and subverted
the rule of law. That goes beyond malicious prosecution and should and must
support relief. That is, it may be said, a very big deal indeed.
15. The Post Office in effect appropriated the criminal justice system for its own
commercial purposes.
16. This Inquiry cannot, of course, determine that issue as a matter of law (right
to relief for malicious violation of the Article 6 right to the hearing of an appeal
within a reasonable time). But given that so many claims for loss and damage
are being processed, including claims by those whose right to an appeal
within a reasonable time were grossly violated, it is appropriate that the issue
be raised. The Post Office is of course entitled to say that it did not subvert or
deny any defendant's rights to appeal, and/or that so far as it did do so, it did
not do so maliciously (viz with an improper purpose), and/or that so far as it
did so maliciously there is no available head or relief or remedy recognised in
law for it having done so. It has the opportunity now to do so.
PAUL MARSHALL EDWARD HENRY K.C. FLORA PAGE
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