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IN THE MATTER OF A PUBLIC INQUIRY
THE POST OFFICE HORIZON IT INQUIRY
LEE CASTLETON, TRACY FELSTEAD
SEEMA MISRA, JANET SKINNER
SUPPLEMENTAL SUBMISSION RE: COMPENSATION
CONCEALMENT DELAY AND DAMAGE
Essential reading......
EXECUTIVE SUMMARY.
PART I. INTRODUCTION
Delay ..
The Post “Office Ss defence ‘to the Bates GLO civil litigatio
PART Il. THE CLARKE ADVICE OF 15 JULY 2013..
The October 2020 document that led to disclosure of the July 2013 Clarke Advici
Key points in the July 2013 Clarke Advice.......
PART Ill. POST OFFICE MISUNDERSTANDING OF LEGAL PROFESSIONAL PRIVILEGE — 2013
WITHHOLDING OF NOTICE OF INSURANCE RISK.
Law — legal professional privilege .....
PART IV. THE ALLEGED PRIVILEGED NATURE OF THE CLARKE ADVICE.
PART V. LAW — LIMITED OR QUALIFIED WAIVER OF PRIVILEGE 30
Directions hearing 18 November 2020 .. wee 32
Case No. 20201558/B3 and Ors. Judgment re Rule 5.8 of the Criminal ‘Procedure Rules on the
application of Mr Nick Wallis (3 December 2021)... eee 33,
Felstead and Ors. v Post Office Limited [2021] EWCA Crim 25 (15 January 2021)..... 34
No express qualification to waiver of privilege — if it can be said otherwise to have attached... 35
The Disclosure Management Document (DMD) .... 36
PART VI. MR CLARKE’S REVIEW OF MRS MISRA’S PROSECUTION . 37
PART VII. THE RECEIPTS AND PAYMENTS MISMATCH BUG 45
SUBMISSIONS +53
19
26
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Essential reading
Tis nece: for the following to be read:
a. Fraser J’s treatment of the Receipts and Payments mismatch bug in the
Horizon Issues judgment: Bates v Post Office in Bates v The Post Office Lid
(No 6; Horizon Issues) Rev 1 [2019] EWHC 3408 (QB) paragraphs 428-459.
and the Horizon Issues judgment Technical Appendix paragraph? 128-140.
b. The Second Sight Interim Report of July 2013.
c The Clarke Advice of July 2013.
d. The section of Fraser J’s Horizon Issues judgment dealing with the absence of
Mr Gareth Jenkins as a Post Office witness from the Horizon Issues trial in
2019: Horizon Issues judgment paragraphs [508]-[516]: “The absence of Mr
Gareth Jenkins”.
e. The letter of Fraser J to Max Hill Q.C., Director of Public Prosecutions, dated
14 January 2020.
The Inquiry Chair invited submissions on compensation. In previously filed
submissions (31 May 2022) it was submitted that the approach to the fair quantification
of losses, whether for “final” compensation (convicted GLO claimants) or “further”
compensation (GLO claimants not convicted), should be by analogy to claims for fraud
so that ordinary rules of remoteness of harm/damage should have no application in
assessing “fair” compensation. These submissions are provided for the purposes of
explaining why fraud is an appropriate model for compensation. Because of the length
of these submissions, occasioned by the complexity and inter-related nature of the
circumstances, the main points are summarised.
The circumstances referred to below may not be widely known. Some points are
perforce repeated. Some citation is longer than usual, with the intention of assi
Inquiry. A striking feature of the present circumstances is the sheer length of time that
These submissions offer an
it has taken for Post Office victims to receive j
explanation for why it has taken so long.
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EXECUTIVE SUMMARY
0)
he essence of fraud is dishonest concealment and withholding of known
that the withheld
material facts - i.e. the truth, and the assertion of other fa
facts fals
‘The reason why fraud is an appropriate model for compensation
is that the Post Office maintained the fiction of Horizon integrity/reliability,
but concealed and withheld from its victims its knowledge of important
problems with the Horizon system that:
(a) would have enabled convicted defendants to Post Office prosecutions to
appeal their convictions from 2013.
(b) Would have had an important and arguably decisive effect/impact upon
the Bates GLO litigation that gave rise to Mr Justice Fraser’s “Common
Issues” and “Horizon Issues” Judgments in 2019. (That litigation was in
effect the result of the collapse of the Second Sight mediation scheme,
chaired by Sir Anthony Hooper, in 2015 following the February BIS
select committee hearing.)
(2) Central to the Post Office’s withholding of its knowledge - concealment - of
defects and problems in Horizon was its improper reliance upon legal
professional privilege as a ground for non-disclosure, and an otherwise
systemically constricted, skewed and flawed approach to its disclosure
obligations. These had the result that information that would have enabled
Post Office victims to seek and obtain redress for the harm inflicted upon them
by the Post Office, as long ago as not later than 2013, was successfully withheld
from them.
(3) The sole reason for the information emerging was the Bates GLO litigation,
the scale and resources allocated to which, for the first time (per Fraser J),
elicited disclosure of the Fujitsu Known Error Log to claimants, material that
could and should have been disclosed on Post Off
“e prosecutions but was
routinely withheld. Even in the Bates GLO litigation, that disclosure material,
considered by Fraser J to be the most important documentary evidence in the
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Horizon Issues trial, was strenuously resisted by the Post Office on grounds
that the material was (1) doubtful as to its existence, (2) irrelevant to the issues,
and (3) not in the Post Office’s power to disclose. In retrospect those
contentions might appear almost ridiculous, so far removed are they from
reality and the true position. But they provided a bulwark against disclosure
to Post Office victims until 2019 - well illus
rated by the four failed defence
applications for disclosure in Mrs Misra’s prosecution.
(4) From 2010° there were a series of developments that resulted in the Post
Office’s decision, from October 2013, to cease prosecuting postmasters and
employees for “Horizon shortfalls”. Three critically important factors were
only disclosed for the first time on 12 November 2020:
(a) In 2013, the Post Office was advised by external solicitors, Cartwright
King LLP, that its principal technical expert witness, who for a long time
had been used by the Royal Mail Group, and latterly the Post Office, as
their preferred expert witness on prosecutions, was an unreliable witness
whose credibility had been wholly undermined by his failure to disclose
in his evidence to the court his knowledge of bugs and defects in the
Horizon system. The effect was that the Post Office was itself put in
breach of its duty to the court as prosecuting authority in every one of 5
‘That non-disclosure tracks in an identical timeline the period of abolition of the former
statutory safeguards provided by s. 69(1)(b) of the Police and Criminal Evidence Act 1984 that
was repealed on the recommendation of the 1997 report of the Law Commission Evidence in
Criminal Proceedings: Hearsay and Related Topics. Computer evidence wa
Part XII. Importantly, the Law Commission considered that PACE s. 69 served no useful
considered in
purpose and proceeded upon the premise that most computer problems are apparent to an.
operator, a premise that the Horizon Issues judgment exposes to be false. The Post Office
supported the Law Commissions recommendation of repeal of the statutory protections
under PACE.)
The Post Office had concerns about the integrity of Horizon that v dered at a high
level from 2010, notably in the “Ismay Report” (seemingly, an important document not
disclosed in the Bates GLO litigation). The Post Office then elected against an independent
external review of Horizon being undertaken, explicitly acknowledging that the conclusions
from any such independent review would be disclosable in legal proceedings, including on
appeal.
e cons
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sampled c
“Clarke Advice” of July 2013.)
es in which Mr Gareth Jenkins had given evidence. (The
(b) In August 2013 the Post Office’s main board was notified of the
concerns in relation to (a) above, by other external solicitors, Bond
Dickinson LLP (later known as Womble Bond Dickinson LLP).
(©) In August 2013 the Post Office’s concerns about the known unreliability
of its preferred expert witness and the financial risk that presented to the
Post Office (inferentially, flawed prosecutions - the miscarriage of
justice) were communicated to the Post Office’s insurers as a notifiable
risk of claim.
(5) The Clarke Advice was prompted by information that had been received by
Second Sight, the Post Office’s own appointed independent investigators
(explained 30 November 2020). A critical piece of information disclosed to
Second Sight in July 2013 was the existence of the Horizon system’s “Receipts
and Payments mismatch bug” - that was not disclosed in Post Office
prosecutions when it should have been.
(6) The Receipts and Payments mismatch bug was a bug of fundamental
importance. Its effects were most important. The bug had the effect that a
Horizon operator’s branch terminal accounts would appear to balance at
terminal, but they would not in fact balance on the Fujitsu Horizon main
servers. So there might be a “shortfall” - ie. a balancing error - despite a
postmaster’s belief _- and_appearance - that their Horizon accounts _had
balanced at the branch terminal.
(7) The Receipts and Payments mismatch bug was discussed in detail between the
Post Office and Fujitsu at a meeting in September 2010, including its likely
impact on Post Office ongoing legal cases and the requirement for careful
management of the communication of information about the bug to
postmasters. A memorandum recording the bug’s effects was circulated within
the Post Office following the September meeting, including to the head of
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legal, crime, within the Post Office. Mrs Misra’s prosecution took place shortly
afterwards. The prosecution’s case was that any problem with Horizon would
be apparent to an operator. This was not true and was known both to the Post
Office and to Fujitsu not to be true.
(8) In the Horizon Issues trial it emerged in cross-examination that the Post
Office, in Mr Godeseth’s words, took a decision as to how the Receipts and
Payments mismatch bug was to be managed. The reason was that its existence
and known effects were recognised as exposing the Post Office to the risk of
fraud (below). Fraser J. concluded that the bug was “kept secret” by the Post
Office.
(9) The Receipts and Payments mismatch bug is referred to both:
(a) in the Second Sight Interim Report of July 2013,
(b) in the Clarke Advice of July 2013.
(10) The Clarke Advice was not disclosed to convicted defendants until November
2020. It was then said to be disclosed to appellants in the CCRC appeals “in
accordance with” duties owed as a matter of law by a prosecutor to a convicted
defendant, post-conviction, as explained by the Supreme Court in R. (on the
Application of Nunn) v Chief Constable of Suffolk Police [2015] AC 225.
(1) Information in the Clarke Advice gives the lie to the Post Office’s explanation
given to F
Bates GLO liti
. for Mr Jenkins not having been called as a witness in the
ation. ‘The explanation given to the court for Mr Jenkins’s
absence (which as the judge noted was volunteered and not required) was false
and misleading.
(12) Information in the Clarke Advice, and what it revealed about the Post Office’s
knowledge of Horizon problems in 2013, would have had an important,
possibly decisive, impact on the Bates GLO litigation.
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(13) Information about the Post Office’s notification of its insurers in 2013 of
financial risk associated with incomplete evidence given by Mr Jenkins, as its
preferred expert witness, would have had an important impact on the Bates
GLO litigation.
(14) Information about:
(a) Mr Jenkins’s known unreliability as an expert witness;
(b) The Post Office’s requirement to notify its insurers of risk associated
With the non-disclosure of bugs in Horizon;
() The receipts and payments mismatch bug and its known eflects;
would have enabled convicted defendants to appeal their convictions from
2013.
(15) The critical overarching circumstance was that in 2013 material available to the
Post Office revealed the presence of bugs in Horizon that showed that the Post
Office w
incapable of distinguishing between fraud/theft by postmasters, on
the one hand, and technical error on the other. That constituted an existential
threat to the Post Office’s business model.
(16) So, while the Post Office ceased prosecuting from 2014, the reasons for doing
so were withheld from those to whom that information was in law disclosable.
(17) The Post Office, between 2013 and 2014, undertook a review of 308
prosecution files in response to the Clarke Advice. As part of that review, Mr
Clarke himself, in 2014, had advised the Post Office that Second Sight’s July
2013 Interim Report, that identified the Receipts and Payments mismatch bug.
should not be disclosed to Mrs Seema Misra.
(18) Mr Jenkins had only given live oral evidence, as an expert witness, once, at Mrs
Misra’s trial.
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(19) In December 2014 Jo Swinson M.P., the government minister responsible for
the Post Office, had told parliament that Second Sight had been appointed to
forensically review and forensically investigate Post Office prosecutions. The
fact of the extensive review by Cartwright King LLP in 2013-2014 was not
disclosed by the CEO of the Post Office to the BIS parliamentary select
committee in February 2015. At that hearing the Post Office faced and resisted
repeated invitations by the committee members to produce to Second Sight
Post Office prosecution files. Less than two months after the select committee
meeting in February 2015 the appointment of Second Sight was terminated
and the Post Office withdrew from the mediation scheme chaired by Sir
Anthony Hooper.
(20) In his Horizon Issues judgment, Fraser J. expresses the view that the non-
disclosure of the Receipts and Payments mismatch bug enabled the Post Office
to continue to assert the integrity of the Horizon system despite its knowledge
of it and its known effects.
(21) In short, from 2013-2019 and indeed up to 2020, the Post Office engaged in
a complex strategy of concealment. A key component of that strategy was the
misapplication of legal professional privilege, said to attach both to the Post
Office’s notification to its insurers of risk in 2013 and, relatedly, the material
in the Clarke Advice. The notification to Post Office insurers in 2013 was
disclosable, but not disclosed. Material in the Clarke Advice, both in
connection with (a) Mr Jenkins’s known unreliability and (b) the Receipts and
Payments mismatch bug was disclosable, but not disclosed, to convicted
defendants.
(22) The non-disclosure of material in the Clarke Advice, the non-disclosure of the
Receipts and Payments mismatch bug and the non-disclosure by the Post
Office, in the Bates GLO litigation, of the notification of its insurers in 2018,
are closely inter-related circumstances each connected with the maintenance
by the Post Office of the fiction of the asserted integrity/reliability of the
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Horizon system. In the civil litigation, that was essentially a false case. For
convicted defendants, their rights of appeal were denied/obstructed.
PART I. INTRODUCTION
Delay
4. Ms Felstead had to wait 19 years for her conviction in 2002 to be quashed. Mrs Misra
was suspended from her West Byfleet branch in 2008. Between 2006 and 2007 she
received £22,000 from her sister-in-law to pay for and make-up alleged Horizon
shortfalls. (Those sums were never repaid by the Post Office, and Mrs Misra was paid
nothing at all by the Post Office under the terms of the December 2019 settlement of
the civil litigation.) She was wrongly convicted of theft in October 2010. Her conviction
was eventually quashed ten and a-half years later, only in April 2021. Janet Skinner
pleaded guilty to false accounting in 2007 in the hope of avoiding a custodial sentence.
She was imprisoned anyway. Her conviction was quashed 13 years later in April 2021.
Collectively, Tracy Felstead, Seema Misra and Janet Skinner had to wait a total of 44
years to have their wrongful convictions quashed and their names cleared. That is an
enormity. Lee Castleton was made subject to a civil judgment on seriously flawed and
misleading evidence in 2007 and bankrupted as a result. He still has a trustee.
5. A large part of the delay in justice being done is explained by the Post Office’s misuse
of the law of privilege.
The Post Office’s defence to the Bates GLO civil litigation
6. The position that the Post Office adopted in the Bates GLO litigation was summarised
by the trial judge, Mr Justice Fraser. In short, the Post Office defended the 550-odd
civil claims made against it on the basis that it believed that the Horizon system was
reliable and robust and that the Post Office had no knowledge of any significant errors
or problems with it. The judge expressed his understanding of the Post Office’s position
in the litigation, as it appeared to him, in his letter to the Director of Public Prosecutions
dated 14 January 2020:
“From about 2001 onwards, a small number of SPMs
reported
discrepancies and shortfalls in their branch accounts which they
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considered were caused by faults in Horizon. The Post Office asserted
that the shortfalls were caused by dishonesty - and sometimes
carelessness - on the part of the individual SPMs. Many SPMs had their
engagements with the Post Office suspended and terminated. Some were
convicted of criminal offences, and others pleaded guilty to offences,
such as fraud, false accounting and theft. All were pursued by the Post
Office for the shortfalls in question, and the total amount of such los
by the claimants in the group litigation was approximately £18 million.
Throughout the period (and indeed until about 2019) the Post Office
asserted that there was nothing wrong with the Horizon system. Prior to.
the group litigation, expert evidence was given to the Crown Court by
su witness
s, and also to the High Court in at least one Case
stleton], tha
there were no widespread or any bugs, errors or def
in Horizon.”
The Post Office’s position in the Bates GLO litigation, as understood by the trial judge,
was wholly at odds:
a. with the fact that in August 2013 the Post Office main board w
external solicitors, Bond Dickinson LLP of risks associated with the evidence
given to the court by its principal Fujitsu expert witness, used by the Royal Mail
Group and Post Office for many years’, that he may have “failed to disclose
certain problems in the Horizon system” and of the Post Office’s obligation to
consider whether further disclosure should be given to defendants to its
prosecutions.
b. With the fact that the Post Office in August 2013 notified its insurers of risk
associated with the evidence given by Mr Gareth Jenkins.
The issue of financial risk to the Post Office created by the prosecution of its
s was thus in 2013 recognised by the Post Office to be a serious
The important fact of communication of risk to the Post Office’s insurers in 2013 was
revealed to Ms Felstead, Mrs Misra and Mrs Skinner and other defendants to Post
M
Simon Clarke's “Clarke Advice” July 2013, paragraph 14.
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Office prosecutions, appellants in the first 42 appeals referred by the CCRC to the
Court of Appeal, for the first time on 12 November 2020 - i.e. a r the settlement
of the Bates GLO litigation.
PART Il. THE CLARKE ADVICE OF 15 JULY 2013
The October 2020 document that led to disclosure of the July
2013 Clarke Advice
10. The information referred to above was communicated by Peters & Peters LLP in a
letter to Aria Grace Law dated 12 November 2020. That letter was itself a response to
and detailed letter of request from Aria Grace Law dated 27 October 2020.
Il. Aria Grace had written to the Post Office’s solicitors in connection with very late
disclosure given by the Post Office (after written submissions had been filed with the
Court of Appeal for a directions hearing in November 2020 at which a main issue was
(originally) to be whether “second category abuse of process” should be permitted by
the court to be advanced as a free-standing ground of appeal in the appeals referred by
the CCRC). The Post Office’s stated position was that the CCRC position on the second
ground was weak and insufficiently vouched by evidence. (The CCRC had not seen the
July 2013 Clarke Advice, it having not been disclosed, either to defendants or to the
CCRC itself.)
12. At page 41 of a schedule of reproduced extracts from various documents, disclosed by
the Post Office by Peters & Peters on 23 October 2020, was an entry under the
reference “Note to POL Board from Bond Dickinson LLP (dated 23/08/13) entitled
“Post Office Limited Horizon Risks”. The second paragraph recorded:
“Post Office has an obligation to consider whether further discourse (sic)
should be made to defendants. It is of concern to Post Office that the
expert evidence of one prosecution witness, Dr (sic) Gareth Jenkins of
Fujitsu, may have failed to disclose certain problems in the Horizon
system potentially relevant to a case.”
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13.
16.
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That entry gave rise on 27 October 2020 to 14 separate numbered requests from Aria
Grace Law, on behalf of Tracy Felstead, Seema Misra and Janet Skinner, appellants,
for further information.
Included in the requests were the requests that the case (singular) referred to be
identified together with details of the “certain problems” mentioned. (At the time, given
the knowledge that Mr Jenkins had given evidence in Mrs Misra’s case, the concern was
that the memorandum referred, specifically, to Mrs Mis case.) The letter elicited the
following statement of explanation from Peters & Peters:
“a. The Document was saved with the name “Insurance Risks
23.08.13” and there are contemporaneous emails (from August-
September 2013) which confirm that it was provided by way of
notification to POL/RMG’s insurers.
b. — Ina later email dated 12 March 2014, Bond Dickinson (as they
then were) indicated that the Document was provided for the dual
purpose of “advising the board (its contents were later reflected in
a Board paper) and acting as notification to POL’s insurers.
d. _... It is clear from these minutes that the Board was aware of the
insurance notification...”.
Peters & Peters stated that they considered that, other than the extracted quotation, the
remainder of the 23 August 2013 document “does not meet the test for disclosure. We
will not therefore be providing the document in its entirety”. (It might be said that this.
constituted impermissible “cherry picking”: R v Secretary of State for Transport Ex p.
Factortame Ltd [1997] 9 Admin LR 591 at 598, Dunlop Slazenger International Ltd v
Joe Bloggs Sports [2003] EWCA Civ 901.)
Peters & Peters explained that there were Post Office board meetings in September and
on 31 October 2013. On 15 October 2013 Mr Brian Altman Q.C. had provided to
the Post Office a substantial document entitled “General Review”.
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19.
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Mrs Paula Vennells CBE, former CEO of the Post Office, in a letter of June 2020 to
Mr Darren Jones MP, chair of the BEIS parliamentary select committee, at paragraph
30 stated:
“According to the figures supplied by Post Office, there were 42
prosecutions in 2012/2013; 2 in 2013/2014; none in 2014/2015; 1 in
2015/2016; and none in 2016/2017. This accords with my recollection
that the change of approach effectively stopped private prosecutions
except in extreme cases...”
Mrs Vennells explained (paragraph 29):
“the Board adopted a new prosecutions policy in February 2014 to focus
on the most egregious cases of wrongdoing...”.
It is likely that the February 2014 “new prosecutions policy” was informed by the
following circumstances (among others - including, most obviously, the Detica report
of October 2013 and the Helen Rose July 2018 report) :
a. The Clarke Advice and what it revealed about non-disclosure of known bugs
and faults in Horizon in all the prosecutions reviewed by Mr Clarke.
b. The Post Office’s requirement to put its insurers on notice of risk of a claim
in connection with Mr Jenkins’s evidence.
c The October 2013 “General Review” by Mr Brian Altman Q.C..
d. The onerous requirement for the Post Office to review all prosecutions it had
undertaken from January 2010 (308 case files in all), as later explained by
Peters & Peters in a note dated 30 November 2020.
In his Horizon Issues judgment, Fraser J. describes a “dreadful complacency” on the
part of the Post Office in 2013 (paragraph [219]). There was in fact, anything but
complacency, given what happened between July 2013 and early 2014. Several different
firms of external solicitors were engaged, the Post Office engaged leading counsel to
advise, including on its disclosure obligations, and hundreds of prosecutions were
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reviewed between mid-2013 and 2014 as a result of Mr Jenkins’s known unreliability as
an expert witness and his incomplete disclosure to the court of Horizon bugs. A major
report by external management consultants, Detica was received (after months of work)
in October 2013, at the same time as the October 2013 ‘General Revie
20. The Post Office decided to cease prosecuting its postmasters and employees for
“Horizon shortfalls” because of the events of 2013.
21. It is inconceivable that the collapse in the number of Post Office prosecutions for
Horizon shortfalls from 42 in 2012-2013 to 2 in 2013-2014 to 0 in 2014-2015 was not
a direct result of the requirement for the Post Office to give notice to its insurers about
concerns both about Mr Jenkins as an expert witness and the questioned completeness
of disclosure of bugs and errors in the Horizon system given by the Post Office to
defendants to its prosecutions and to the court.
22. It is elementary that the purpose of the (effectively invariable) requirement for an
insurer of r
insured to notify sk of a claim, is to afford the opportunity to the insurer
to investigate the circumstances of its liability to pay an indemnity. Notification suggests
recognition of contingent financial liability against which a contractual indemnity would
be sought. It is likely that the Post Office’s insurers will have made inquiries as to the
basis for the notified risk. The duty of utmost good faith owed under contracts of
insurance might be expected to have elicited production to insurers of material in the
Clarke Advice of July 2013. (The reference by Bond Dickinson to concerns about Mr
Jenkins’s evidence in “a case” is an oddly attenuated summary by Bond Dickinson’ of
Mr Clarke’s conclusions in his July 2013 advice.)
Non-disclosure of notice of risk to insurers in the Bates GLO
litigation
23. Importantly, Aria Grace in their October 2020 letter requested “Please confirm that
this document was disclosed to the claimants in the Bates v Post Office Limited
litigation”. Peters & Peters’ response was as follows:
It is possible of course that the reference to “a case” came from Bond Dickinson’s
instructions.
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“We understand that the Document was not disclosed in the group
ligation. The Document attracts legal professional privilege, and as you
will no doubt be aware, material attracting legal professional privilege
does not fall to be disclosed in the context of civil litigation....”.
24, It follows that disclosure of the fact of Post Office notification of its insurers in 2013 was
withheld from disclosure in the Bates GLO civil litigation.
25. ‘This is a matter of grave seriousness, because of the implications that knowledge of such
notification would have had for the GLO claimants, and its likely impact and effect
upon the group civil litigation. It is of particular gravity, given the underlying consistent
theme of non-disclosure that emerged both:
a. in the civil litigation - see for example the unsatisfactory history of disclosure
of the Fujitsu Known Error Log the request for which was described by the
Post Office’s leading counsel to Fraser J. as a “red herring” (and see also denial
of ‘remote access’ (raised as an issue in Second Sight’s 2013 Interim Report)
denied by the Post Office until Mr Roll’s second statement of 2019);
b. and by the non-disclosure in Post Office prosecutions of Horizon records
established by judgment in 39 appeals in the Court of Appeal on 23 April 2021
- and in more than 38 subsequent appeals since then.
26. It is not open to sensible dispute that disclosure of the fact that the Post Office, as long
ago as 2018, had felt constrained to notify its insurers of recognised financial risk to the
Post Office in connection with incomplete evidence given by its principal Fujitsu expert
witness on Horizon issues, and associated concern about the completeness of disclosure
given by the Post Office to defendants to its prosecutions of bugs/errors in Horizon,
would likely have had a major impact upon the Bates GLO civil litigation.
27. Further, that the Post Office in 2013 notified its insurers of in connection with nom
disclosure to the court of knowledge of the most important Post Office technical expert
witness on Horizon issues, apart from anything else, gives the lie to the Post Office’s
explanation for Mr Jenkins’s not being called as a witness by the Post Office at the
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Horizon Issues trial - a circumstance to which Fraser J. devotes an entire section of his
Horizon Issues judgment under the heading: “The absence of Mr Gareth Jenkins”
(paragraphs [508]-[516]). Much of the technical evidence given for the Post Office at
the Horizon Issues trial emanated indirectly from Mr Jenkins, though was not attributed.
to him.
28. The trigger for Bond Dickinson being engaged to advise the Post Office main board of
risk in connection with Mr Jenkins’s evidence was, plainly, receipt by the Post Office of
the 15 July 2013 Clarke Advice, that itself was a response to information received by
the Post Office from Second Sight, prior to delivery of their Interim Report that was
formally submitted on 8 July 2018. Its content had been communicated prior to that
date.
29. Peters & Peters have said that the Post Office had intended to disclose the Clarke
Advice, but it was to be disclosed only in December 2020, that is to say, envisaged as
subsequent to the Court of Appeal hearing on directions for disposal of the CCRC
appeals.
Key points in the July 2013 Clarke Advice
30. Mr Simon Clar'
ke, a barrister then employed by Cartwright King LLP, in his July 2013
written advice for the Post Office, recorded that both Royal Mail Group and the Post
Office “[flor many years” had relied upon Mr Gareth Jenkins “for the provision of
expert evidence as to the operation and integrity of Horizon”. He recorded that Mr
Jenkins “has provided many expert statements in support of Post Office and Royal Mail
Group prosecutions”.
3. Mr Clarke considered 5 sample prosecutions in which Mr Jenkins had given evidence
between 5 October 2012 and 3 April 2013. These were selected because they
represented “recent examples of the evidence being given in support of [Post Office]
it became known that there were
prosecutions” and because they took place “after
defects in Horizon which materially affected the presentation of data and the provision
of false balance figures” (emphasis (italics in original) Mr Clarke’s).
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32. Under paragraph 36 of his July 2013 advice, Mr Clarke adverts to a number of
problems/bugs/errors in the operation of Horizon that were known to Mr Jenkins, or
were problems with Horizon and its integrity with which he was concerned, none of
which were mentioned in his evidence to the court in any of the 5 prosecutions reviewed
by him.
33. Mr Clarke’s conclusions are set out at paragraph 38 of his advice. His principal
conclusions were:
a. That Mr Jenkins “failed to disclose material known to him but which
undermines his expert opinion. This failure is in plain breach of his duty as
an expert witne
b. That Mr Jenkins’s “credibility as an expert witness is fatally undermined”.
c That “[nJotwithstanding that the failure is that of Mr Jenkins and arguably,
Fujitsu Services Ltd, being his employer, this failure has a profound effect
upon [Post Office] and [Post Office] prosecutions, not least because by reason
of [Mr] Jenkins’ failure, material which should have been disclosed to
defendants was not disclosed, thereby placing [Post Office] in breach of their
duty as a prosecutor.”
His advice was that the Post Office should cease to use Mr Jenkins as an expert witness.
34, The context of Mr Clarke
advice was that Mr Jenkins had given evidence in support
of Post Office prosecutions, where Mr Clarke observed:
a. “... the inevitable conclusion to which the reader is driven is that *... if that is
right, there must be no bugs’
b. “Plainly therefore [Mr] Jenkins is attesting to the then integrity and robust
nature of Horizon - there is nothing wrong with the system. Unfortunately
that was not the case, certainly between the dates spanned by the statements I
have extracted here, the 5" October 2012 and the 3" April 2013”.
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85. Mr Clarke had concluded that, as a matter of fact, in every one of the prosecutions
reviewed by him from 5 October 2012 to 3 April 2013, Mr Jenkins had given
incomplete and misleading evidence to the court and had put the Post Office in breach
of its obligations to the court as prosecutor.
36. One of the bugs which Mr Clarke refers to by reference to the Second Sight Interim
Report of July 2013 (the contents of which had been communicated to the Post Office
in June, and which appears to have been the trigger for the instruction of Cartwright
King) was the Receipts and Payments Mismatch bug, the most important and first of
the bugs identified by Fraser J. in his Horizon Issues judgment. The importance of this
bug, in particular to Mrs Misra and her prosecution, is considered in further detail below
under Part VII.
37. Information about the Receipts and Payments mismatch bug in both the Second Sight
Interim Report of July 2013 and in the Clarke Advice of 15 July 2013 was disclosable
under principles identified by the Supreme Court in R. (on the Application of Nunn) v
Chief Constable of Suffolk Police [2015] AC
. The known effects of the bug,
identified and discussed between the Post Office and Fujitsu in September 2010,
contradicted and were wholly inconsistent with the way in which the Crown’s case at
Mrs Misra’s trial was put.
38. So two important facts were revealed by the Clarke Advice:
a. Mr Jenkins was known to be a wholly unreliable witness of truth who had given
incomplete evidence in every case sampled in which he had given evidence.
b. Horizon had a bug in it the effect of which was fundamentally at odds with the
prosecution case at Mrs Misra’s trial.
Both cast doubt upon the safety of Mrs Misra’s conviction. It was accepted by leading
counsel for the Post Office in March 2020 that the Receipts and Payments mismatch
bug should have been disclosed at Mrs Mira’s trial. But there were missed opportunities
for its disclosure after that.
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PART III. POST OFFICE MISUNDERSTANDING OF LEGAL
PROFESSIONAL PRIVILEGE — 2013 WITHHOLDING OF NOTICE
OF INSURANCE RISK
39. The extent of the misunderstanding/misuse of legal privilege by the Post Office and its
legal advisers, over a long period of time, contributed to and greatly exacerbated the
harm suffered by the Post Office’s victims by the denial to them of justice. Not least,
rights of appeal were obstructed and defendants’ ECHR Article 6 rights to an appeal
within a reasonable time were infringed and violated.
40. Privilege is a substantive right (not a rule of evidence) that provides a ground for
objecting to and resisting compulsory disclosure: B v Auckland District Law Society
[2003] 2 AC 736, [67].
AL. Notification by the Post Office given to its insurers of risks in connection with Mr
Jenkins’s evidence was not, contrary to Peters & Peters’ letter of 12 November 2020,
subject to legal professional privilege. No reasonable lawyer properly directing
themselves on the law could have concluded otherwise.
42. The fundamental misunderstanding of the law of privilege is apparent in Peters &
Peters’ letter of 12 November 2020. The misunderstanding is revealed in paragraph
I(a) and paragraph 4:
“I(a). The Document was saved with the name “Insurance Risks
23.08.13” and there are contemporaneous emails (from August-
September 2013) [not disclosed] which confirm that it was
provided by way of notification to POL/RMG’s insurers.”
“A. We understand that the document was not disclosed in the
group litigation. The Document attracts legal professional
privilege.” (Emphasis supplied.)
43. The statement at paragraph 4 is simply wrong, given the statement at paragraph I (a).
The document, in the hands of Post Office’s insurers and as a communication with
them, was not privileged (below).
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44. The subject of the statement by Peters & Peters “it was provided by way of notification
to POL/RMG’s insurers” can only refer to the document from which the extracted
quotation in disclosure given on 23 October 2020 was taken - consistent both with the
name given to the document and the statement at 1(b) “the Document was provided for
the dual purpose of “advising the board... and acting as notification to POL’s insurers””.
4S. The document communicated by the Post Office to its insurers notifying risk in August
2013 was disclosable, in its entirety, in the Bates GLO litigation. But it was withheld
from disclosure.
Law — legal professional privilege
46. The legal position can be simply stated and is elementary: it is not possible to claim
privilege for communications between lawyer and anyone other than the client. If,
therefore, a lawyer communicates with a third party (not being his client) where no
litigation is anticipated, the client may not claim privilege for such communications.
The point is explained by Lord Justice Longmore in Three Rivers District Council
(No5) v Governor and Company of the Bank of England [2003] QB 1556 [2003]
EWCA Civ 474 at paragraphs [17]-[18]. These merit citation:
[17] The last of the three cases is Wheeler v Le Marchant (1881) 17 ChD
675 which was a case of legal advice privilege not litigation privilege. In
that context it was held that documents obtained from a third party to be
shown to a solicitor for his advice did not fall within the privilege. Advice
was given to the defendant trustee of the will of a Mr Brett in the course
of its administration in the Chancery Division; for the purpose of that
advice information was sought from both the former and the current
est
agent and surveyor. Part of the estate consisted of land in respect
of which the defendant made an agreement with Mr Wheeler that he
(Mr Wheeler) was to erect certain buildings and then be granted a lease
of that land. The parties fell out. Mr Wheeler brought an action for
specific performance and the defendant trustee claimed privilege for the
reports of the estate-agent/surveyor made to the solicitors in the course
of the administration of the estate. It was held that while the
communications between the defendant and the estate's solicitors were
privileged, the reports of the estate-agent/surveyor were not. Cotton LJ is
reported to have intervened in argument at page 680 to say:-
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"Your proposition is that all communications by a solicitor with
third parties, for the purpose of enabling him to give advice, are
privileged. Has any case protected them except when made post
litem motam?”
Counsel responded, after a little prevarication:-
"The question is whether the rule, though not distinctly carried to
such a length by any of the cases, ought not to be extended to
meet this case .. .
[18] Once again it is necessary to cite a little extensively from the judgments
in order to get their flavour. Sir George Jessel MR, now presiding in the
Court of Appeal, recognised the two categories of privilege saying this (pages
680-1):
"As regards the main question in dispute, this appears to be an attempt
on the part of the present Respondents to extend the rule as to protection
from discovery. It was fairly admitted by their counsel that no decided
case
s the rule to the extent to which they wish it c
ied, but they
urged that as a matter of principle it ought to be so extended. What they
contended for was that documents communicated to the solicitors of the
Defendants by third parties, though not communicated by such third
parties as agents of the clients seeking advice, should be protected,
because those documents contained information required or asked for
by the solicitors, for the purpose of enabling them the better to advise
the clients. The cases, no doubt, establish that such documents are
protected where they have come into existence after litigation
commenced or in contemplation, and when they have been made with a
view to such litigation, either for the purpose of obtaining advice as to
such litigation, or of obtaining evidence to be used in such litigation, or
of obtaining information which might lead to the obtaining of such
evidence, but it has never hitherto been decided that documents are
protected merely because they are produced by a third person in answer
to an inquiry made by the solicitor. It does not appear to me to be
necessary, either as a result of the principle which regulates this privilege
or for the convenience of mankind, so to extend the rule."
And (pages 681-2):
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"...it must not be supposed that there is any principle which says that
every confidential communication which it is necessary to make in order
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to carry on the ordinary business of life is protected. The protection is of
avery limited character, and in this country is restricted to the obtaining
the assistance of lawyers, as regards the conduct of litigation or the rights
to property. It has never gone beyond the obtaining legal advice and
assistance, and all things reasonably necessary in the shape of
communication to the legal advisers are protected from production or
y in order that that legal advice may be obtained safely and
And (pages 682-3)
"But what we are asked to protect here is this. The solicitor, being
consulted in a matter as to which no dispute has arisen, thinks he would
like to know some further facts before giving his advice, and applies to a
surveyor to tell him what the state of a given property is, and it is said that
the information given ought to be protected because it is desired or
required by the solicitor in order to enable him the better to give legal
advice. It appears to me that to give such protection would not only
extend the rule beyond what has been previously laid down, but beyond
what necessity warrants. The idea that documents like these require
protection has been started, if I ma so, for the first time to-da
ities of mankind have not been
I think the best proof that the nec
supposed to require this protection is that it has never heretofore been
asked. It seems to me we ought not to carry the rule any further than it
has been carried. It is a rule established and maintained solely for the
purpose of enabling a man to obtain legal advice with safety. That rule
does not, in my opinion, require to be carried further, and therefore I
think this appeal ought to be allowed
Brett LJ said (page 683):-
"The proposition laid before us for approval is, that where one of the
parties to an action has in his possession or control documents which
passed between his solicitor and third parties, they are protected in his
hands from inspection, on the ground that they were documents which
pi
enabling the solicitor to give legal advice to his client, although such
-d between the solicitor and the third party for the purpose of
information was obtained by the solicitor for that purpose at a time when
there was no litigation pending between the parties, nor any litigation
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contemplated. It seems to me that that proposition cannot be acceded
to. Itis beyond any rule which has ever been laid down by the Court, and
it seems to me that it is beyond the principles of the rules which have
been laid down. The rule as to the non-production of communications
between solicitor and client is a rule which has been established upon
grounds of general or public policy. It_is_confined_entirely_to
communications which take place for the purpose of obtaining legal
advice from professional persons. It is
me it is so confined in principle, and it does not extend to the suggested
so confined in terms, it seems to
case.”
Cotton LJ said (pages 684-5):-
"It is said that as communications between a client and his legal advise
for the purpose of obtaining legal advice are privileged, therefore any
communication between the representatives of the client and the solicitor
must be also privileged. That is a fallacious use of the word
"representatives." If the representative is a person employed as an agent
on the part of the client to obtain the legal advice of the solicitor, of
course he stands in exactly the same position as the client_as regards
protection, and_his communications with the solicitor stand in the same
position as the communications of his principal with the solicitor. But
these persons were _not_representatives_in_that_sense. They were
representatives in this sense, that they were emploved on behalf of the
clients, the Defendants, to do certain work, but that work was not the
communicating with the solicitor _to_obtain_legal_advice. So_their
communications cannot _be_protected_on the ground that they are
communications between the client _by_his representatives and_the
licitor. In fact, the contention of the Respondents comes to this, that
all communications between a soli
itor and a third person in the course
of his advising his client are to be protected. It was conceded there was
no case that went that length, and the question is whether, in order fully
to develop the principle with all its reasonable consequences, we ought
to protect such documents. Hitherto such communications have only
been protected when they have been in contemplation of some litigation,
or for the purpose of giving advice or obtaining evidence with reference
to it. And that is reasonable, because then the solicitor is preparing for
the defence or for bringing the action, and all communications he makes
for that purpose, and the communications made to him for the purpose
of giving him the information, are, in fact, the brief in the action, and
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ought to be protected. But here we are asked to extend the principle to
a very different class of cases, and it is not necessary, in order to enable
persons freely to communicate with their solicitors and obtain their legal
advice, that any privilege should be extended to communications such as
these."
Here Cotton LJ, unlike in his judgment in Southwark v Quick, considers
cach of the two categories of legal professional privilege and decides in
terms that the documents in question do not fall within the first category
because they are not communications between solicitor and client and
not within the second category because litigation is not contemplated.
This case thus makes clear that legal advice privilege does not extend to
documents obtained from third parties to be shown to a solicitor for
advic (Underlining supplied.)
47. The law is clear and well-established. In Three Rivers District Council (No6)_ v
Governor and Company of the Bank of England [2005] 1 AC 610, [111] the House of
Lords identified the scope of legal professional privilege:
all communications between a solicitor and his client relating to a
transaction in which the solicitor has been instructed for the purpose of
obtaining legal advice will be privileged, notwithstanding that they do not
contain advice on matters of law or construction, provided that they are
directly related to the performance by the solicitor of his professional
duty as legal adviser of his client.”
48. Legal professional privilege is distinguished from litigation privilege is that, in order for
litigation privilege to apply, there must be a confidential communication between client
and lawyer or lawyer and agent or between a client or lawyer and a third party for the
dominant purpose of use in litigation; that is, to seek or provide information or evidence
to be used in, or in connection with, litigation in which the client is or may become a
party, and when litigation is either in process or reasonably in prospect.
49, On no possible legal basis or legal analysis was the Post Office’s notification of its
insurers by the document from Bond Dickinson “saved with the name “Insurance Risks
23.08.13”" that was “provided by way of notification to POL/RMG’s insurers” subject
to/protected from disclosure by legal professional privilege, as asserted by Peters &
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Peters in their letter of 12 November 2020 at paragraph 4. The document, as
communicated to the Post Office’s insurers, did not “attract legal professional privilege”.
Such communications (between the Post Office and its insurers in connection with risk
associated with Mr Jenkins and evidence given by him in Post Office prosecutions) were
disclosable and should have been disclosed in the Bates GLO litigation.
50. Further, as is suggested by the contents of paragraph I (a) of Peters & Peters’ letter of 12
November 2020, itis very likely that there will have been a whole series of documents
passing between Post Office and its insurers generated by the Post Office putting its
insurers on notice of risk. It is likely that the insurer will have made inquiry/sought
clarification. It is strongly arguable that the duty of utmost good faith (full disclosure)
required disclosure to the insurer of material in the Clarke Advice. No such
communications, still less the insurance notification itself, were disclosed in the Bates
GLO litigation. That was an egregious disclosure failure.
OL, It is difficult to overstate the impact of the unfounded and misconceived claim by the
Post Office to privilege in the notification given to its insurers of known risk in
connection with evidence given by Mr Jenkins in 2013.
ary implication recognised the financial risk
52. The notification of risk to insurers by nec
(contingent liability) of the Post Office in connection with failure to disclose Mr
Jenkins’s knowledge of bugs and errors in the Post Office Horizon computer system. It
is not without irony that widespread and systemic disclosure failure by the Post Office
was the very issue that eventually became the key issue and first ground of appeal in the
Court of Appeal in 2021 - the financial consequences of which are in process of still
being worked-out. The Post Office’s most recent published accounts’ confirm that the
government has set aside £780 million for OHC (overturned historic convictions).
53. ‘Ground I’ or ‘first category’ (abuse of process by non-disclosure) was, in 39 of the first
tranche of appeals, conceded by the Post Office. It was there to be seen/known in 2013
s://corporate.postoflice.co.uk/media/tu dd5v/post -office-limited-ara-2021_signed-
pdf
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and was a risk by necessary implication recognised in the Post Office’s notification of
its insurers of risk.
PART IV. THE ALLEGED PRIVILEGED NATURE OF THE CLARKE
ADVICE
5A. In written submissions to the Court dated 30 November 2020, filed for the hearing on
3 December 2020 of the application by Mr Nick Wallis for disclosure of the Clarke
Advice, Mr Altman Q.C., Ms Zoe Johnson Q.C. and Mr Simon Baker on behalf of the
Post Office submitted to the cout that:
“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.”
55. The Post Office’s counsel expressed the ir hope that “... 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 [of appeal]”
(paragraph [17.7]).
56. No explanation was offered by the Post Office as to why, on 12 November 2020, the
Clarke Advice had been disclosed in accordance with principles re-stated by the
Supreme Court in R. (on the Application of Nunn) v Chief Constable of Suffolk Police
[2015] AC 225, but had not been disclosed before then.
57. Peters & Peters subsequently (80 November 2020) explained that it was intended to
disclose the Clarke Advice in December 2020. That it was held back is unsatisfactory.
58. Peters & Peters LLP on 30 November 2020 explained that Mr Brian Altman Q.C.
provided to the Post Office a document entitled “General Review” “dated 15 October
2013 which, amongst other matters, extensively referred to the Clarke Advice and its
contents and conclusions”. That being the case, it remains both unexplained and
extraordinary that the Clarke Advice itself was disclosed, pursuant to the common law
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continuing duty of disclosure identified and restated by the Supreme Court in Nunn,
only in 2020 - 5 months after referral by the CCRC of the first tranche of appeals in
June 2020 and 8 years afier it was first considered by the Post Office’s leading counsel.
59. There was plainly a change in the Post Office’s perception of the disclosable nature of
the Clarke Advice between 2013 and November 2020. The cl
ige_ remains
unexplained and is unsatisfactory given the importance of the material revealed in the
Clarke Advice and its relevance to the safety of a defendant's, specifically Mrs Misra’s,
conviction.
60. The duty of post-conviction disclosure owed by a prosecutor to a convicted defendant
explained by the Supreme Court in R. (on the Application of Nunn) v Chief Constable
of Suffolk Police [2015] AC 225 is not a qualified, but is rather an unqualified, duty.
Lord Hughes JSC, with whom Lord Neuberger, Lord Reed, Lord Clarke and Lord
Carnwath JJSC agreed, referred to the Attorney General’s guidelines, and said thi
“[30] All the stages thus far considered are ones at which the criminal
justice process remains afoot, with either trial or sentence or appeal to
be catered for. When it comes to the position after the process
complete, the Attorney General's guidelines deal specifically with
disclosure of something affecting the safety of that conviction. The
relevant paragraph in the most recent edition (2018), echoing the same
principle in earlier editions, says this:
"Post conviction.
72. Where, after the conclusion of proceedings, material comes
to light that might cast doubt upon the safety of the conviction,
the prosecutor must consider disclosure of such material."
The guideline must mean that not_only should disclosure of such
material be considered, but that it should be made unless there is good
reason why not. Thus read, it is entirely consistent with the principle
reflected in the position set out in the paragraphs above in relation to the
pre-Crown Court stage, to the pending sentence stage and to the pending
appeal stage. ...”. (Underlining supplied.)
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Even where the appeal process has been exhausted, there remains a continuing duty of
disclosure of material that comes into the posse:
ion of the prosecution that might
afford arguable grounds for contending that a conviction is unsafe. Lord Hughes said:
“{35] There can be no doubt that if the police or prosecution come into
[36]
[39]
possession, after the appellate process is exhausted, of something
new which might afford arguable grounds for contending that the
conviction was unsafe, it is their duty to disclose it to the convicted
defendant. Simple examples might include a new (and credible)
confession by someone else, or the discovery, incidentally to a
different investigation,’ of a pattern, or of evidence, which throws
doubt on the original conviction. Sometimes such material may
appear unexpectedly and adventitiously; in other cases it may be
the result of a re-opening by the police of the enquiry. In either
case, the new material is likely to be unknown to the convicted
defendant unless disclosed to him. In all such cases, there is a clear
obligation to disclose it. Para 72 of the Attorney General's
s this
guidelines, quoted above, correctly recogni:
Mis
trial and however careful the trial process. ...Quite apart from the
riages of justice may occur, however full the disclosure at
defendant's interest, the public interest is in such mis
ages, if
they occur, being corrected. There is no doubt that there have been
conspicuous examples of apparently secure convictions which have
been demonstrated to be erroneous through the efforts of
investigative journalists, or of solicitors acting on behalf of
convicted persons or, sometimes, of other concerned persons.
‘The safety net in the case of disputed requests for review lies in the
CCRC. That body does not, and should not, make enquiries only
when reasonable prospect of a conviction being quashed is already
demonstrated. It can and does in appropriate cases make enquiry
to see whether such prospect can be shown. It has ample power,
for example, to direct that a newly available scientific test be
undertaken. R v Shirley [2003] EWCA Crim 1976, a DNA case
not unlike Hodgson, appears to be a case in which it did exactly
that. What it ought not to do is to indulge the merely speculative
It is an independent body specifically skilled in examining the
Viz inquiries/investigations by Second Sight of knowledge of bugs in Horizon.
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details of evidence and in determining when and if there is a real
prospect of material emerging which affects the safety of a
conviction. This exercise involves a detailed scrutiny of the other
evidence in the case and a judgment on the likely impact of
whatever it is suggested the fresh enquiries may generate. Whilst in
principle the court retains control, via the remedy of judicial
review, of the duty laid upon the police and prosecutors after the
appeal process is exhausted, it is likely to determine, unless good
reason for not doing so is provided, that relief by that route is
inappropriate until the CCRC has had the opportunity to make a
reasoned decision.” (Emphasis supplied.)
62. The discovery by the Post Office and its lawyers, in 2013, that the principal technical
expert called in prosecutions (over a long period of time) to attest for the Post Office
qua prosecutor the reliability of Horizon (and its freedom from bugs capable of causing
losses of the kind of which defendants complained) had repeatedly and consistently, in
every case sampled in which he had given evidence, given incomplete evidence of his
knowledge of bugs, with the effect that his credibility as an expert witness was “fatally
undermined”, lies squarely within Lord Hughes’ formulation at paragraph [35] of
Nunn.
63. That was by necessary implication expressly recognised by the Post Office’s three
counsels’ statement in their 30 November 2020 written submissions.
64, As to the “safety net” of the CCRC referred to by Lord Hughes, the Post Office’s
position is that the CCRC knew of the existence of Clarke Advice but failed to ask for
it pursuant 5.17 of the Criminal Appeal Act 1995: paragraph [10] of Peters & Peters
“Disclosure Note in Relation to the Context for the “Clarke Advice”” dated 30
November 2020.
65. The Post Office’s contention that the CCRC could have requested, but failed to request,
disclosure to it of the Clarke Advice under s. 17 CAA 1995 is impossible to reconcile
with the submission to the Court of Appeal that the Clarke Advice was disclosed on the
appeals in accordance with “the Respondent's disclosure obligations in Nunn” - i.e. the
Post Office is accepted to have had a duty to disclose it to convicted defendants.
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66. Remarkably, in a separate advice in connection with Mrs Misra’s prosecution, Mr
Clarke, by an advice dated 7 December 2015, advised the Post Office that “all matters
relating to issues of disclosure now fall to be determined by the CCRC and _not by the
[Post Office]”.. There is no proper basis in law that a prosecutor’s disclosure obligation
to convicted defendants is superseded/displaced by the intervention of the CCRC. It
was noted that the Post Office was the subject of as. 17 order from the CCRC in respect
of Mrs Misra’s case. Mr Clarke provided another advice (referred to in his 7 December
2015 advice) on disclosure of documents to the CCRC or to any other party. The 7
December 2015 advice was also disclosed by Peters & Peters on 12 Nov ember 2020.
67. So far as the Post Office was under a duty to disclose the Clarke Advice (as expressly
accepted by the Post Office’s three counsel on 30 November 2020) it cannot be said
that privilege simultaneously attaches. There cannot be privilege in material in respect
of which a duty to disclose is owed under the Nunn principles of post-conviction duty
of disclosure regardless or not as to whether there are legal proceedings on foot or in
contemplation. (The point about the required disclosure is that it may enable an appeal
to be brought.)
68. Further, it is similarly wrong to speak of waiver of privilege in relation to material that
A
falls within Nunn disclosure obligations of the kind referred to by Lord Hughes J:
convicted defendant is entitled in Jaw as a matter of fairness to that material, as of right
(Nunn paragraph [35] - and the decision generally). For that reason, it is wrong to
speak of constraints upon the use of the material. The Post Office could not and cannot
be heard to say, for example of Mrs Misra’s prosecution: “we will tell you about our
knowledge of Mr Jenkins’s failure to comply with his obligations/known fundamental
unreliability as an expert witness and his consistent and repeated failure to disclose his
knowledge of bugs and errors in Horizon, specifically the Receipts and Payments
mismatch bug, but only on condition that you use that information solely for the
purpose of an appeal and for no other purpose”. (e.g. “and you don’t tell anyone else”).
PART V. LAW — LIMITED OR QUALIFIED WAIVER OF PRIVILEGE
69. It is convenient to state the applicable legal principles of limited or qualified waiver of
privilege. It is elementary that a party disclosing a document to another party, in the
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70.
72.
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ordinary course of events, waives any privilege in the document by producing a copy of
the document in question. The waiver of privilege is in the act of producing the
document. That much is trite law. (It is the against production (for inspection) of the
document that the right of privilege protects.)
ed v Commissioner of the Police for the Metropolis [2002] EWCA Civ 780 [16]
establishes that:
a. A party giving inspection of documents must decide before doing so
what privileged documents he wishes to allow the other party to see
and what he does not.
b. Although the privilege is that of the client and not the solicitor, a party
clothes his solicitor with ostensible authority (if not implied or express
authority) to waive privilege in respect of relevant documents.
c. A solicitor considering documents made available by the other party
to litigation owes no duty of care to that party and is in general entitled
to assume that any privilege which might otherwise have been claimed
for such documents has been waived.
In some circumstances privilege may be waived for a particular limited and specific
purpose. That is by way of exception to the rule that privilege in material that is disclosed
Goldman v Hesper [1988] 1 WLR 1238; British Coal
Corporation v Dennis Rye Ltd (No 2) [1988] W.L.R. 1113; B v Auckland District Law
Society [2003] UKPC 38, [68]; British Coal Corpn v Dennis Rye Ltd (No 2) [1988] 1
WLR 1113; Bourns Inc v Raychem Corpn [1999] 3 All ER 154.
is waived — general
For waiver of privilege, exceptionally, to be limited and restricted to a particular
purpose, as a matter of law it is necessary for the limited purpose to be clearly identified
at_the time that the disclosure and inspection is given. Otherwise, waiver is general
where a document has been disclosed to another party and no qualification or limited
purpose is identified by the disclosing party: Al-Fayed vy Commissioner of the Police for
the Metropolis. Unless such a limitation is communicated clearly to the recipient of
disclosed material they are entitled to treat the disclosure as a general waiver of privilege.
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73.
74,
75.
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No limitation, qualification, or restriction was stated to apply to waiver of privilege in
the Clarke Advice at the time of its disclosure and inspection by provision of copy on
12 November 2020.
There is no express limitation or qualification to waiver of privilege in the Clarke Advice
disclosed pursuant to the provisions of paragraph 79 of Peters & Peters’ Disclosure
Management Document (“DMD”) (it otherwise ving the prescribed disclosure
criteria for disclosure under paragraphs 27 and/or 28).
Directions hearing 18 November 2020
On 18 November 2020 Mr Altman Q.C., in oral submissions, told the Court of
Appeal:
“Now, that Advice [the Clarke Advi
e] was disclosed by letter last wee
on Thursday 12th November. It was disclosed to Arial Grace, (sic -
transcript) together with other documents which I need not go into now,
in answer to a letter Arial Grace had sent Peters and Peters (the solicitors
on behalf of the Post Office) on 27th October, making various enquiries
about a piece of disclosure, which led to this disclosure. Although, of
course, the Advice itself is privileged, this is not a waiver of privilege by
the Post Office; it is a limited waiver for the purposes of disclosure. We
submit that the provision by the legal representative (or representatives,
we know not which) of Arial Grace (sic - transcript), as openly stated by
di
Lewis Page in his email yesterday, to a member of the pr josed in
these proceedings, in breach of the clear terms of the disclosure
management document under which it was provided,’ and in breach of
the implied undertaking at common law’ amounts, arguably, to a
‘The term of the DMD relied upon for alleging “breach” is not identified. In any event the
DMD was nota contract, unilateral or otherwise. Further, it was subsequently acknowledged
that the disclosure of the Clarke Advice was in accordance with Nunn principles (i.e. duty to
sed on Nunn principles/obligation/duty nor is there any implied undertaking. Any
on on their use vis a vis a journalist would likely engage with ECHR Article 10.
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contempt of this court...So, put in the hands of a journalist is a privileged
document disclosed for the purposes of these proceedings, dealing with
the very subject matter of one of the two individuals currently under
investigation by the Metropolitan Police”. (Emphasis, in each instance,
supplied.)
76. But the Clarke Advice was not disclosed “for the purpose of these proceedings”, it was
disclosed because, in accordance with the principles in Nunn, convicted defendants
were entitled to material that might cast doubt upon the safety of their convictions, this
the Clarke Advice assuredly did.
Case No. 20201558/B3 and Ors. Judgment re Rule 5.8 of the
Criminal Procedure Rules on the application of Mr Nick Wallis
(3 December 2021)
77. Inthe Court of Appeal’s ruling Holroyde LJ said this:
“{16] I Mr Altman submitted that the Clarke Advice is itself a legally
privileged document, with legal professional privilege having been waived
only for the limited purpose of disclosure in these appeals. He submitted
that the provision of a copy of it by a legal representative of some
appellants to a member of the press was a breach of the terms of the
disclosure management document, a breach of an undertaking implied
at common law and arguably a contempt of court... ....
[83]... First, it was mentioned by Mr Altman in order to explain to
the court the concern which had arisen as to possible improper
disclosure of a privileged document provided to defence legal
representatives for the limited purposes of their preparation and conduct
of the appeals... .”
78. Mr Wallis was unrepresented on the hearing. No Amicus was appointed. There was
no argument on the allegedly privileged character of the Clarke Advice.
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79.
80.
81.
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In principle and as a matter of law, if the Clarke Advice was disclosed “in accordance
with” the duty of post-conviction disclosure in Nunn, which the Post Office by its
counsel acknowledged that it was, the information and material was not disclosed for
the limited purpose of the appeals, because the duty of disclosure was owed whether or
not there were appeals on foot. Put another way, the disclosure obligation was owed
independently of the appeals.
Felstead and Ors. v Post Office Limited [2021] EWCA Crim 25
(15 January 2021)
Holroyde LJ, giving judgment, said this:
“[25] Mr Altman ... submitted that the provision of the Clarke advice
to a journalist was a serious breach of the terms of the DMD, a breach
of an implied undertaking at common law and arguably a contempt of
court. The Clarke advice was a document covered by legal professional
privilege, and the respondent had waived privilege only for the purpose
of meeting its disclosure obligations... .””
[58]... It would also mean that the court would be prevented from
taking any steps to enable it to make an informed decision as to what to
do when told that a legally privileged document had been passed to a
journalist.” (Emphasis, including double, supplied.)
This is, with respect, similarly confused. There is no implied (usually referred to as.
‘collateral’) undertaking in connection with documents disclosed in accordance with
duties owed under Nunn. That is because the implied (or collateral) undertaking at
common law is derived from the protection given to a party who only discloses a
document/information that is disclosed by compulsion by virtue of the existence of legal
proceedings - i.e. disclosure by compulsion of law: Home Office vy Harman [1983] AC
280. As to breach of the DMD, see below. (The DMD was not a contract, and further,
A statement that remains somewhat puz
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82.
83.
84.
86.
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if there was a duty to disclose, as is accepted, then it wasn’t subject to terms of use
)
unilaterally impose:
Further, there is no room, in the circumstances, for the implication of some limitation
on waiver outside of legal proceedings of the kind identified by the Court of Appeal in
Berezovsky v Hine [2011] EWCA Civ 1089 where there was no express limitation on
waiver of privilege but the court nonetheless held there was an implied limitation (the
relevant statements were obviously intended to remain confidential and were disclosed
for a limited and defined purpose - and were intended to be used for that purpose and
no other purpose unless Mr Berezovsky assented).
No express qualification to waiver of privilege— if it can be
said otherwise to have attached
In their letter of 12 November 2020, covering the disclosure of the Clarke Advice Peters
& Peters said:
“In addition, on 15 July 2013 Cartwright King Solicitors advised on the
use of Gareth Jenkins as a prosecution expert witness in ongoing cases.
We enclose a copy of this advice (Document ID 136028 107_redacted)
[the Clarke Advice], which is disclosed to you as part of generic
disclosure.”
At the end of their letter, Peters & Peters stated: “Doc ID 136028107_redacted, which
is part of generic disclosure, will also be provided now to the other appellants for
consistency.”
Nowhere, in their letter_of 12 November 2020, do Peters & Peters state_that_the
disclosure_of Document ID_ 136028107 (viz _the Clarke Advice) entails _a_limited.
restricted or otherwise qualified waiver of privilege (below). The letter is a careful and
extensive letter to which considerable thought and care had been given.
The assertion of maintained/partially waived privilege in a document said by the Post
Office (830 November/3 December 2020) to have been disclosed to convicted
defendants in accordance with the law as re-stated by the Supreme Court in R. (on the
we
a
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88.
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Application of Nunn) v Chief Constable of Suffolk Police [2015] AC 225 is, in any
event, simply unarguable.
The Disclosure Management Document (DMD)
The July 2013 Clarke Advice was disclosed under Peters & Peters’
Management Document (“the DMD”) of August 2020.
The DMD provided:
“27. In addition to disclosing the ‘defence case file’, POL will dis
Disclosure
lose
material which might reasonably be considered capable of undermining
the safety of the conviction or ing the Appellants in advancing a
ground or grounds of appeal (which includes identifying any new
ground(s) of appeal). [Emphasis supplied.]
98. Where POL has identified examples of the following (non-
exhaustive) types of material/conduct relevant to potential abuse of
process arguments, they will be disclosed:
(i) whether the investigator(s) or Prosecutor(s) acted in a way which
could give rise to the risk of an abuse of process or to arguments
regarding admissibility of evidence (even if this was not rai
the defendant), based on procedural unfairness, bad faith or
improper conduct;
(ii) knowledge within POL of actual or alleged problems with
Horizon; ...
(iv) improper/inadequate conduct of the POL investigation and
prosecution teams which may include:
(b) failure to investigate is:
es expressly or impliedly raised
by the defence in connection with Horizon (e.g., issues
with the accuracy/reliability of Horizon, remote access,
ete);
() claims by investigators or prosecutors that there were no
known issues with Horizon or the SPM in question was
the only one to experience such issues;
(d) explicitly or implicitly reversing the burden of proof onto
the SPM to prove that Horizon was not reliable;
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(h) material non-disclosure, including knowledge on the part
of the investigators/prosecutors that Horizon was not
reliable...”
(Emphasis supplied.)
89. Paragraph 79 of the DMD, under the heading “Approach to Legal Professional
Privilege”, provided:
“79, Where the reviews identify documents (or material within
documents) as a part of the case specific or GDR exercise that would
have attracted LPP but which are considered by the review team to be
disclosable, that material will be disclosed notwithstanding the LPP that
might otherwise have attached to them.” (Emphasis supplied.)
90. There is no stated restriction or qualification to the waiver of privilege in material
disclosed pursuant to paragraph 79 of the DMD. This is important. In that 22-page
document, governing disclosure, the only reference to privilege is under paragraph 79.
There is no reference to qualified or limited waiver of privilege.
91. The assertion of maintained/qualified waiver of privilege was simply wrong. There was
no proper, or any, legal basis for it,
PART VI. MR CLARKE’S REVIEW OF MRS MISRA’S
PROSECUTION
92. Given that Mr Altman Q.C. informed the Court of Appeal in March 2021, on two
separate occasions, that Mr Jenkins gave live oral evidence in only one case of the many
in which he had given evidence to the court in Royal Mail Group and Post Office
prosecutions, namely in the prosecution of Seema Misra in October 2010, the
information and Post Office’s knowledge about his known unreliability as an expert
witness and his failure to disclose his knowledge of bugs in Horizon was of possible
great importance to Mrs Misra and of obvious potential relevance to the issue of the
safety of her conviction.
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93. The Post Office considered Mrs Misr
's prosecution to be a test case for asserting the
integrity of Horizon and her successful conviction to be a landmark.
94. The actual approach of the Post Office, under the review of 308 prosecutions after
January 2010, that it undertook from July 2013, merits being described, especially given
conviction
th nowledgement by the Post Office’s counsel that the common law pos
disclosure principles in Nunn applied (pursuant to which the Post Office stated the
Clarke Advice was, eventually, disclosed in 2020).
95. While Mr Clar!
’s review of Mrs Misra’s prosecution in January 2014 does not engage
with issues of legal professional privilege, the review undertaken suggests that following
the receipt of the Clarke Advice in July 2013, the Post Office conducted a very extensive
review but one that _was_severely_constricted_and_only tangentially related _to_the
information in the Clarke Advice.
96. The Clarke Advice is primarily concerned with Mr Jenkins’s failure to disclose in
prosecutions his knowledge of bugs and errors in the Horizon system, the effect of
which was to render him a witness whose credibility was “fatally undermined”, and to
put the Post Office in breach of its duties owed to the court as prosecutor. These were
considered, rightly, to be matters of considerable moment for the Post Office by Mr
Clarke.
97. The review actually undertaken by the Post Office of its prosecutions by Cartwright
King LLP was not concerned with disclosing to convicted defendants the Post Office’s
knowledge that Mr Jenkins’s was recognised as/known to have been a wholly unreliable
witness of fact whose credibility as an expert was “fatally undermined” by his failure to
disclose his knowledge of Horizon problems/bugs. It was not concerned with the effects
of the known but undisclosed bugs in Horizon (see below Part VID). The Post Office
review of its prosecutions was concerned the different questions as to whether two other
documents - not being the Clarke Advice - should be disclosed to convicted
defendants, viz:
a. the Second Sight July 2013 Interim Report and
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b. the Helen Rose reports of July 2013.
As Peters & Peters put it in November 2020: “Cartwright King Solicitors were instructed
to advise [the Post Office] on their post-conviction disclosure obligations, in particular,
whether the Helen Rose Report and/or the [Second Sight] Interim Report needed to
be disclosed to individuals convicted in [Post Office] prosecutions conducted since 1
January 2010". That was not the relevant consideration within Lord Hughes’s
formulation in Nunn but was rather an artificially constricted evaluation of disclosable
material.
98. Given the terms of reference of review undertaken by Cartwright King of Post Office
prosecutions, it is perhaps unsurprising that, so far as is known, not a single successful
appeal resulted, notwithstanding Mr Jenkins’s known “fatally undermined” credibility
and that his evidence in every case reviewed by Mr Clarke in 2013 was incomplete. The
Cartwright King review, on the face of it, failed to address the relevant issue or material.
Tt was aimed at the wrong target.
99. Mrs Mi:
’s concern as to the safety of her conviction was much le!
by the contents of the Second Sight Interim Report, the nature of which was neces
provisional, and the Helen Rose report, than it prospectively was by the known and.
recognised fundamental unreliability of Mr Jenkins as a witness who gave the key
technical evidence on Horizon’s asserted reliability at her trial in October 2010. That
information was withheld from her. But it was Mr Jenkins’s repeated failure to disclose
what he knew about Horizon bugs and his consequent recognised/known unreliability
as a witness that was the critical, disclosable, issue. One of the bugs known to Mr Jenkins
was very important to Mrs Misra’s prosecution, albeit it was only discussed in detail
between Fujitsu and the Post Office shortly before her trial, the Receipts and Payments
mismatch bug. Albeit identified in “Horizon online” introduced from 2010, the critical
point was its known effects.
100. The Post Office by its counsel (including Mr Altman Q.C. himself) explained in written
submissions to the Court of Appeal (80 November 2020) that “...Mr Altman QC was.
instructed to conduct a review of the process [i.e. the Cartwright King review of
prosecutions] (although not the individual decisions in reviewed cases). The resultant
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document entitled “General Review” by Brian Altman Q.C. dated 15 October 2013
extensively referred, among other matters, to the Clarke Advice and its contents and
conclusions”.
101. While a contextual issue, it is to be noted that, in August 2013, shortly after he had
written his July advice, Mr Clarke had written a further advice for the Post Office
expressing his concern about instruction given that “emails and minutes should be, and
have been, destroyed”. Mr Clarke recorded that “the word 'shredded' was conveyed to
me”: Hamilton v Post Office [2021] EWCA Crim 577 paragraph [88].
102. Against those circumstances, Mr Clarke provided written advice to the Post Office,
dated 22 January 2014, in connection with the Post Office “review” of Mrs Misra’s
prosecution as part of the Cartwright King review.
103. Mr Clarke, in reviewing Mrs Misra’s prosecution, recorded that “I have not been
provided with the prosecution file but have seen a full set of transcripts covering the trial
itself.
For this reason I have been unable to establish much of the pre -trial process as
>. Ne
the transcripts do not deal with th pects of the ily this Full Review
takes a different form from the general.”
104. So although Mrs Misra’s prosecution was the only prosecution in which Mr Jenkins had
given live oral evidence, the review of her prosecution was “different from the general”
in the reviewer not being provided with the prosecution file. While noting the fact, Mr
Clarke did not find that unsatisfactory nor did he consider that his not having access to
the file had, or might have, any bearing on his review.
105. Had Mr Clarke seen the prosecution file he would have seen on the file:
a. In an exchange of internal memoranda in August 2009, a defence
request for disclosure of Horizon data was met with objections based
upon the cost of obtaining such information from Fujitsu. The basis
of the objection was that POL's contract with Fujitsu placed limitations
Written submissions of the Post Office on Mr Nick Wallis’
Clarke Advice, 30 November 2020, paragraph 14.2.
application for disclosure of the
40
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106.
107.
The Post Office was in fact able “to destro:
OFFICIAL
upon the number of requests for ARQ data which could be made
each year. In short, consideration of the data for disclosure to the
defence appears to have been resisted, not on the grounds that it was
not required by law, but on the grounds that POL's contractual
arrangements with Fujitsu made it costly and inconvenient to comply
with its legal obligations as a prosecutor. (Hamilton v Post Office Ltd
[2021] EWCA Crim 577.)
More importantly, a memorandum dated 22 October 2010 written by
the senior Post Office criminal solicitor, Mr Jarnail Singh, who had
conduct of Mrs Misra’s prosecution. The (widely circulated)
memorandum stated: “After a length (sic) trial at Guildford Crown
Court commencing on the 11" October 2010 when the Jury came to
a verdict on the 21° October 2010 when they found the Defendant
guilty of theft. The case turned from a relatively straightforward
general deficiency case to an unprecedented attack on the Horizon
system. We were beset with (sic) unparallel (sic) degree of disclosure
requests by the Defence. Through the hard work of everyone,
Counsel Warwick Tatford, Investigation Officer, Jon Longman and
through the considerable expertise of Gareth Jenkins of Fujitsu we
were able to destroy to the criminal standard of proof (beyond all
reasonable doubt) every single suggestion made by the Defence . It is
to be hoped the case will set a marker to dissuade other Defendants
from jumping on the Horizon bashing bandwagon....”. (Emphasis
supplied.)
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every single suggestion made by the
Defence” by Mr Jenkins not disclosing his knowledge of Horizon bugs. Disclosure of
the Receipts and Payments Mismatch bug by Mr Jenkins, and its known effects, would
have undermined the prosecution case against Mrs Misra (below).
In his advice of 22 January 2014, Mr Clarke recorded that: “[i]t becomes apparent in
cros:
41
xamination of Mr Jenkins that, whilst he had disclosed material to Professor
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McLachlan [Mrs Mi:
expert witness], he had done so on a piecemeal basis, only
when asked to do so and very late”. Mr Clarke does not consider that in the context of
his July 2013 advice nor does he consider his subsequent August advice and the disquiet
he had expressed in connection with the risk of the destruction of evidence relating to
Horizon.
108. Mr Clarke does not recite in detail his instructions but states that “The sole purpose of
this Review is to determine whether or not the Helen Rose report or the Second Sight
Interim Report ought to be served on Mrs Misra’s lawyers so as to correct what would
have been a failing had POL been possessed of those documents in October 2010.”
He added: “It is certainly not the purpose of this review to determine whether or not
Mrs Misra’s convictions i.e. her guilty pleas to False Accounting and her conviction by
jury for Theft are unsafe: that decision is reserved to the Court of Appeal only. Issues
of whether or not material might cast doubt on the safety of the conviction does however
fall to be considered”.
109. Mr Clarke concluded his review of the issue of disclosure, that he notes was an issue
“repeatedly raised” (including under abuse of process), by saying: “I have considered
Mrs Misra’s failure to raise Horizon as a defence until so late in the day; her inability ot
unwillingness to offer anything more than a generalised and incoherent indictment of
Horizon; the approach taken by Professor McLaughlan; and the duties relating to
disclosure placed upon the shoulders of any prosecutor. I am reminded of the opinion
of the House of Lords in R v H; Rv C [2004] 2AC 134 where the Committee expressed
the view that:
“The trial process is not well served if the defence are permitted to make
general and unspecified allegations and then seek far-reaching disclosure
in the hope that material may turn up to make them good.””
The approach is striking, when Mr Clarke was alive to requests for disclosure being a
consistent theme in Post Office prosecutions, and his own knowledge of Mr Jenkins’s
failure to disclose his knowledge of bugs and errors present in Horizon.
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110. Mrs Misra was repeatedly criticised at her trial for not being able to point to problems
with the Horizon system. The truth was that she was wholly unable to do so in the
absence of the Post Office providing relevant disclosure, which it did not do. (That
exposes a fundamental flaw in the Law Commission’s 1997 recommendation" to
parliament that rebuttal of the legal presumption of the reliability of computers should
be a straightforward matter.)
111. Mr Clarke concluded that “no meaningful criticism can be made of the disclosure
process taken by [Royal Mail Group] during the pre-trial ongoing disclosure phases of
the prosecution.” He simply was not in a position to evaluate the issue. The important
known effects of the Receipts and Payments mismatch bug appear not to have been
communicated to Mr Clarke, even though it was one of the bugs that Mr Jenkins is.
known to have failed to disclose in the prosecutions that he himself had reviewed. It
remains puzzling that having identified the bugs Mr Jenkins failed to disclose to
defendants, the effects of those bugs is nowhere, it would seem, considered. (Ordinarily
that might be expected, not least for the purpose of assurance that the known existence
of the bug in question could not have affected/impacted the outcome of a particular
prosecution.)
112. On the issues of the Second Sight Interim Report and the Helen Rose Report, Mr
Clarke concluded:
a. “Tam of the view that the Second Sight Interim report does not and cannot
cast doubt on the safety of the conviction, not least because the vast majority
of matters dealt with in the report postdate this trial by several years and those
that fit the chronology of this case bear little or no factual resemblance to Mrs
Mis
s circumstances.
b. “As for the Helen Rose report, that matter goes solely to Gareth Jenkins’
knowledge of Horizon concerns arising some 5 years after the events
considered in Mrs Misra’s trial, and his credibility as an expert witness in 2013.
An analysis of the events dealt with in that report, and the potential that Gareth
" Evidence in Criminal Proceedings: Hearsay and Related Topics .
43
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Jenkins’ credibility as a witness might be undermined in 2013, does not in my
view lead to the conclusion that material which might undermine his credibility
now ought to be made available so as to do so in relation to a trial which
occurred in 2010.”
113. The conclusion under (a) above, in connection with the Second Interim Sight Report,
would not have been available to him had Mr Clarke read the prosecution opening and
closing statements against the September 2010 Receipts and Payments mismatch bug
memorandum, cited by Fraser J. at paragraph [428] of the Horizon Issues judgment.
114. In advising against disclosure of the Second Sight Interim Report Mr Clarke wrote:
“applying the test identified by Brian Altman Q.C. as the appropriate approach, I
conclude that, on this aspect of the case, the Second Sight Interim report does not fall
to be disclosed now.”
115. Mr Clarke’s overall conclusion and advice to the Post Office in January 2014 was that
“... neither the Second Sight Interim report nor the Helen Rose report meet the test for
disclosure in this c and neither report should be disclosed to Mrs Misra’s
representatives”.
116. It is not the purpose of this submission to embark on an analysis of Mr Clarke’s
reasoning. What is striking, and extraordinary, is that the review is for the purpose of
the narrow consideration of the limited issues of whether the (1) Second Sight Interim
Report and (2) the Helen Rose report should be disclosed to Mrs Misra. This, where
the trigger/occasion for the Cartwright King review was the July 2013 advice written by
Mr Clarke where the gravamen of Mr Clarke’s advice was that:
a. Mr Jenkins had given misleading and incomplete evidence in every one of the
5 cases reviewed.
b. Mr Jenkins had accordingly, in every case reviewed in which he had given
evidence, failed to discharge his duty to the court as an expert witness.
c Mr Jenkins was considered to have put the Post Office in breach of its
obligations as prosecutor.
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117. Mr Clarke records a test for post-conviction disclosure of material identified by Mr
Brian Aluman Q.C. that refers to paragraph 127 of his “General Review” document as
extending to material “that might cast doubt upon the safety of a conviction”.
118. It is not obvious why Mr Jenkins’s recognised unreliabi is an expert witness and the
fact that Mr Jenkin: credibility as an expert witness is fatally undermined”, such that
he advised that Mr Jenkins should never be used by the Post Office again as an expert
witness, were not considered by Mr Clarke material that satisfied that criterion. It is
also difficult to understand, given the occasion for the Cartwright King review (of all
ues for
prosecutions after January 2010), why Mr Clarke accepted that the limited i:
consideration were whether (1) the Second Sight Interim Report and (2) the Helen Rose
report should be disclosed. The issue in the Clarke Advice is (in essence) the failure of
Mr Jenkins to disclose his knowledge of bugs and errors in Horizon. Mr Clarke’s (fairly
extensive) reference to the issue of complaints about disclosure being a theme in both
Mrs Misra’s prosecution and also at her trial serves merely to accentuate how obviously
‘actory the terms of the Cartwright King review were.
PART VII. THE RECEIPTS AND PAYMENTS MISMATCH BUG
119. The Receipts and Payments mismatch bug was the most important bug in Horizon
considered by Fraser J in his Horizon Issues judgment. He refers to the September
2010 note about the bug as “a most disturbing document in the context of this group
litigation” (Horizon Issues paragraph [429]). Part of the reason for the judge’s
yoncern
was that the way in which the Receipts and Payments mismatch bug was dealt with by
the Post Office was in contradiction to its case in the Common Issues trial, where it
asserted that postmaster Branch Trading Statements were ‘settled accounts’ in law:
“.... The solution explains “even though there is no discrepancy at the
branch”. This means the Branch Trading Statement would be correct,
or in balance. The discrepancy would not be in the Branch Trading
Statement, it would be in POLSAP or Credence. That this is correct is
shown in an associated document from Mr Jenkins (trial bundle
reference F/777/2) where he stated that “the data used for the BTS will
also have a zero value for Discrepancies at the end of the period.” BTS
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means Branch Trading Statement. A similar entry is in the document at
F/1000/1 which states at /2 “Note that if the bug was not present, then
the Discrepancy would have been transferred to Local Suspense and
that would have been cleared, so there are a number of things wrong
with the BTS.” (emphasis added). In other words, the Post Office itself
was not considering the BTS as having the status of a settled account,
based on these entries.” (Horizon Issues paragraph [431)).
120. The central point, however, is that the Receipts and Payments mismatch bug
undermined a central premise in Post Office prosecutions, revealed in prosecution
statements in Mrs Misra’s trial, namely that errors in the Horizon system ought to be
apparent to a Horizon branch terminal operator. The premise of prosecutions was that
all errors w nt to a Horizon branch terminal operator. The bug showed that
appa
there might be a shortfall but a postmaster’s accounts would appear to balance at the
terminal. It was explicitly recorded in the September 2010 note (Le. immediately prior
to Mrs Misra’s criminal trial in October 2010):
e “If widely known could cause a loss of confidence in the Horizon
System by branches
e Potential impact upon ongoing legal cases where branches are disputing
the integrity of Horizon Data”. (Horizon Issues paragraph [428].)
121. Mr Justice Fraser, of the “loss of confidence risk”, said this: “A less complimentary
(though accurate) way of putting it would be to enable the Post Office to continue to
assert the integrity of Horizon, and avoid publicly acknowledging the presence of a
software bug.”
122. The importance of Fraser J’s observation is impossible to overstate. Recognition of the
effect of the Receipts and Payments mismatch bug did two things that were
commercially catastrophic for the Post Office:
a. It raised doubts about the stability of prosecutions conducted on the premise
that problems bugs in Horizon would necessarily be apparent to a branch
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terminal operator - a major premise in its prosecutions, as in Mrs Misra’s case
(below). That is to say, the premise that a “Horizon shortfall” would be
apparent at branch.
b. As the September 2010 memorandum acknowledged, the recognised effects
of the bug presented the risk of fraud because the bug raised the prospect that
that the Post Office could not distinguish between technical failure (i.
presence of/effects of a bug) and fraud/theft. It is possible that recognition of
this was a major contributing factor to the Post Office’s decision to cease
prosecuting for Horizon shortfalls from 2014. (If it was not, it should have
been.)
123. As to the Post Office’s failure to communicate the existence of this bug , Mr Godeseth,
the Post Office’s chief technical witness of fact on Horizon Issues, gave the following
evidence:
“A. There was obviously a fear that subpostmasters may be looking to
exploit this because it gave - there was a fear that people could see
this as a way of defrauding the Post Office.
Q. So concealing it from SPMs who were honest was justified because
of the expectation of dishonesty of subpostmasters in the network,
in a nutshell?
A. In my view, this was a decision made by Post Office on how to
manage this particular bug. You could interpret it the way that you
have put it.” (Underlining supplied.)
124. The decision not to disclose the Receipts and Payments mismatch bug to postmasters
~ including those like Mrs Misra it prosecuted, thus appears to have been a poli
decision, because of the commercial risk implications for the Post Office in disclosing
it.
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125. Although it was suggested that the bug was present only from 2010 (only in ‘Horizon
online’), Fraser J. rejected Mr Godeseth’s evidence on this and concluded the bug had
been around for much longer.
126. While it is no purpose of these submissions to evaluate in detail Mr Clarke’s “review”
of Mrs M.
a’s prosecution, that neither material in the Clarke Advice of July 2013 nor
the Second Sight Interim reports were considered as documents that should be
disclosed to Mrs Misra represent serious disclosure failures.
127. A competent lawyer put in inquiry by those documents would have arrived at the
conclusion that the known and documented effects of the Receipts and Payments
mismatch bug undermined the prosecution opening and closing statements at Mrs
Misra’s trial. In his letter to the Director of Public Prosecutions in January 2020 Fraser
J.
aid this of the bug:
“Mr Jenkins had prepared a report for, and been at a meeting, in
September 2010 when the Receipts and Payments mismatch bug was
discussed. This records the risk that if this was “widely known [it] could
cause a loss of confidence in the Horizon System by branches” and that
there was a “potential impact upon ongoing legal cases where branches
are disputing the integrity of Horizon Data”.
Yet notwithstanding this knowledge that the existence and effect of this
bug was directly relevant, the existence of this bug was kept secret from
the court.”
128. Mr Justice Fraser’s concern about the secrecy surrounding the Receipts and Payments
mismatch bug is expressed in trenchant terms at paragraph [457] of his judgment:
“To see a concern expressed that if a software bug in Horizon were to
become widely known about it might have a potential impact upon
“ongoing legal cases” where the integrity of Horizon Data was a central
issue, is a very concerning entry to read in a contemporaneous
document. Whether these were legal cases concerning civil claims, or
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criminal cases, there are obligations upon parties in terms of disclosure.
So far as criminal cases are concerned, these concern the liberty of the
person, and disclosure duties are rightly high. I do not understand the
motivation in keeping this type of matter, recorded in these documents,
hidden from view; regardless of the motivation, doing so was wholly
wrong. There can be no proper explanation for keeping the existence
of a software bug in Horizon secret in these circumstances.” (Emph:
supplied.)
129. The Receipts and Payments mismatch bug was explicitly identified and referred to by
name by Second Sight in their July 2013 Interim Report at paragraph 6.
“The first defect, referred to as the "Receipts and Payments Mismatch
Problem", impacted 62 branches. It was discovered in September 2010
as a result of Fujitsu's monitoring of system events (although there were
subsequent calls from branches). The aggregate of the discrepancies
arising from this system defect was £9,029, the largest shortfall being
£777 and the largest surplus £7,044. POL has informed us that all
shortages were addressed at no loss to any SPMR.”
130. The reference to the Receipts and Payments mismatch bug identified by Second Sight
is referred to by Mr Clarke in his 15 July advice at paragraph 28.
131. In September 2010, the effects of the Receipts and Payments mismatch bug were
minuted by Mr Jenkins and circulated, including to the Post Office’s solicitor having
conduct of Mrs Misra’s trial (Post Office Respondent’s Notice, October 2020).
“There will be a Receipts and Payment mismatch corresponding to the
value of Discrepancies that were "lost"
the Branch will not get a prompt from the system to say there is
Receipts and Payment mismatch, therefore the branch will believe they
have balanced correctly. ...
Impact
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The branch has appeared to have balanced, whereas in fact they could
have a loss or a gain.”
Horizon Issues judgment at paragraph [429]:
.. Potential impact upon ongoing legal_cases_where branches are
disputing the integrity of Horizon Data
* It could provide branches ammunition to blame Horizon for future
discrepancies.
132. The known impact of the Receipts and Payments mismatch bug, known at the time of
Mrs Misra’s trial (including most obviously by Mr Jenkins himself) is wholly at odds
with the way in which the Post Office’s counsel put the prosecution case at Mrs Misra’s
trial:
a. Prosecution opening speech So [Horizon] has got to be a pretty
robust system and you will hear some evidence from an expert in the
field as to the quality of the system." Nobody is saying it is perfect and
you will no doubt hear about a particular problem that was found, but
the Crown say it is a robust system and that if there really was a
computer problem the defendant would have been aware of it.
That is the whole point because when you use a computer system you
realise there is something wrong if not from the screen itself but from
the printouts you are getting when you are doing the stock take.”'
b. Prosecution closing speech: “... the whole point of Calendar Square
and indeed any computer problem is that the operators can see that
something is going wrong.”" (Emphasis supplied.)
133. The known effects of the Receipts and Payments mismatch bug, discussed in detail
before Mrs Misra’s trial between Fujitsu and the Post Office , and then documented and
s to be Mr Gareth Jenkins.
11 October 2010, 21A-C, 23H-24A.
7 19 October 2010 p 24H.
That “expert” v
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circulated within the Post Office, contradicted and_ falsified those prosecution
statements.
134. The Receipts and Payments mismatch bug should have been disclosed in Mrs Misra’s
prosecution. Holroyde LJ asked this of Mr Altman Q.C. “Is it accepted by the
respondent that this particular bug [the Receipts and Payments mismatch bug] was
relevant to an of the appeals?” (fT 23 March 2021 p 14/4). Mr Altman Q.
. responded:
“Tt was only relevant in the way that we have conceded and accepted as
long ago as the respondent’s notice, that it should have been considered
for disclosure, ought to have been disclosed in Mrs Misra’s trial. ... But
anyone who had or should have applied their mind to the concerns
which were expressed and known about in Post Office and in the
linaudible] as we have accepted, they should have applied their minds to
it, they should have considered it for disclosure and, our submission is it
should have been disclosed in Mrs Misra’s trial... The why, the why it
didn't happen, we have out, you may recall, in our short response
skeleton of 8 January. We don't know. Was it incompetence? Was it
individuals not understanding their duties? Or was it deliberate? There
is no evidence before the court to say which it was, but the plain fact
of the evidence is it was not disclosed ....”.
135. Mr Altman Q.C. told the Court of Appeal “Mrs Misra’s trial was the high-water mark
of litigation issues of Horizon Integrity” (23 March 2021 15/25).
136. There is no consideration given to the fact that Mr Clarke, having written his July 2013
Advice, then reviewed Mrs Misra’s prosecution in January 2014 in the context of the
Second Sight Interim Report, where that report refers to the Receipts and Payments.
mismatch bug that is cross-referenced. Further, Mr Clarke’s July advice refers to that
bug as a bug that was not disclosed by Mr Jenkins. Plainly, in considering Mrs Misra’s
prosecution, Mr Clarke was not provided with any information concerning the effects
of the Receipts and Payments mismatch bug and was only provided with trial transcripts.
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137. Mr Clarke like Mr Altman Q.C., may have assumed, wrongly, that “a bug which appears.
in Horizon online cannot have any application to a previous iteration of Horizon”
(
statement is also simply wrong as a matter of fact, because it assumes that ‘Horizon
anscript 23 March 2021, 14/25). The issue was the effects of the bug. (The
online’ was a different system from ‘Legacy Horizon’, which it was not - it was merely
modified - Legacy Horizon was migrated into Horizon online in 2010 and the
architecture changed: see Technical Appendix to Horizon Issues at Parts B and C.)
138. The effects of the Receipts and Payments mismatch bug were so important that they
were withheld from postmasters and those whom the Post Office had prosecuted until
disclosure in the Bates GLO civil litigation. Fraser J. concluded that the existence of
the bug was first formally acknowledged by the Post Office in response to the letter of
claim on 28 July 2016: Horizon Issues, Technical Appendix paragraph [133].
139. As has been elsewhere noted, the very peculiar terms of the Cartwright King review , of
all Post Office prosecutions from January 2010, can be considered, not only against the
actual material revealed by the Clarke Advice, but also in the light of the failure of the
Post Office to disclose the fact of the wide-ranging review of Post Office prosecutions
by Cartwright King, to both Second Sight as its own appointed independent
investigators, and, more remarkably still, the failure to disclose the fact to the BIS select
committee at the February 2015 hearing - where Mrs Vennells and Mrs Van Den
Bogerd steadfastly resisted the invitation by the committee to produce Post Office
prosecution files to Second Sight, as they had requested, because of their stated
misgivings about the quality of investigations and prosecution evidence relied upon by
the Post Office.
140. The inappropriate constriction/skewed nature of the Cartwright King review 2013-2014
review of Post Office prosecutions, and its terms, is thrown into sharp relief both by
the contrasting outcome of the CCRC June 2020 s. 9 reference in the April 2021
judgment of the Court of Appeal and also by the fact that the Post Office conceded
almost all the appeals on first ground abuse of process - material non-disclosure/denial
of a fair trial.
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SUBMISSIONS
()
The discovery by the Post Office of the Receipts and Payments Mismatch bug
and its effects in 2010 was a disaster for the Post Office. Its effects were such
that there might be a balancing error on Fujitsu’s main Horizon servers for a
postmaster’s account and the postmaster would have no knowledge of it,
balanced at branch.
because their accounts would have appeared to ha
Contractually, a postmaster was responsible for payment out of their own funds.
of any such “shortfall” - of which they would have had no notice or warning at
their branch terminal. It was what might be called “the nightmare scenario” for
the Post Off
Mr Godeseth’s evidence is of crucial importance. He described the Post Office
as having taken a “decision” as to how to manage the problem presented by
“this particular bug”. The way it was in fact managed was that the Receipts and
Payments Mismatch bug was not disclosed to postmasters. Its concealment
enabled the Post Office to maintain the fiction of the integrity of Horizon.
Fraser J. said “I do not understand the motivation in keeping this type of matter
recorded in these documents, hidden from view; regardless of the motivation,
doing so was wholly wrong. There can be no proper explanation for keeping
the existence of a software bug in Horizon secret in these circumstances.”
The irreducible reason for the Post Office’s concealment of (“keeping secret”
per Fraser J.) the Receipts and Payments Mismatch bug, was that it revealed
that the Post Office could not tell the difference between theft and fraud on the
one hand, and the effect of a bug in the Horizon system on the other, That
conclusion was of momentous importance and commercially catastrophic for
the Post Office.
a. The Receipts and Payments mismatch destabilised and undermined
the main premise of Post Office historic prosecutions. namely, that
unexplained “Horizon shortfalls” were - and must be - the
responsibility of postmasters. The bug showed that that was a false
premise. Second Sight recorded in their Interim Report that Post
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Office investigations branch never questioned whether the source of
a shortfall might be the Horizon system itself, the Receipts and
Payments mismatch bug revealed that it might well be. That was a
contention that had been advanced, unsuccessfully, by postmasters for
years.
b. Not only were branch accounting shortfalls the responsibility of
postmasters, they were contractually bound to make good, out of their
own monies, shortfalls in their closing balances. It is no wonder that
it was recorded in September 2010 that widespread knowledge of the
Receipts and Payments mismatch bug might undermine confidence
in the Horizon system. The making good of Horizon inexplicable
shortfalls was a running sore amongst postmasters - and the cause of
immense distress for many.
c. The Receipts and Payments mismatch bug put in question the
thousands of re-payments that the Post Office had been demanding -
and receiving - from its postmasters from the date of roll-out in 1999,
as in Post Office Ltd v Castleton [2007] EWHC 5 (QB).
Mier the bug was discovered and discussed between Horizon and Fujitsu in
September 2010, and its troubling effects were widely circulated within the Post
Office, the Post Office continued to prosecute on the explicit premise that any
problem or error in Horizon would be apparent to a postmaster at their
Horizon branch terminal. That was known by the Post Office (and Fujitsu) to
be untrue, Mrs Misra was convicted of theft because the ramifications of the
Receipts and Payments mismatch bug were so great that they required to be
suppressed (“kept secret”).
The position was potentially fatally jeopardised by Mr Jenkins communicating
to Second Sight his knowledge of the Receipts and Payments mismatch bug in
early 2013. That prompted the instruction of Cartwright King LLP and
resulted in the July 2013 Clarke Advice and Mr Clarke’s recommendation that
all Post Office prosecutions required to be reviewed. This was because the Post
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Office was on notice that Mr Jenkins had not disclosed his knowledge of bugs
to the court and had thereby put the Post Office in breach of its duties as
prosecutor. That represented a further management problem for the Post
Office. The obvious issues for review were:
a. Whether Mr Jenkins’s known fundamental unreliability as a witness
should be disclosed to convicted postmasters in prosecutions in which
Mr Jenkins had given evidence?
b. Whether the bugs Mr Jenkins had not disclosed might have an impact
on the safety of a conviction (as the effects of the Receipts and
Payments mismatch bug plainly did in Mrs Mirsa’s case)?
Instead, the Cartwright King review from 2013 - 2014 of Post Office
prosecutions was restricted to the principal questions of whether the Second
Sight Interim Report and the Helen Rose reports should be disclosed to
convicted defendants. The review was seriously skewed and constricted and
resulted, perhaps as intended, in not a single successful appeal. The question
arises as to how such a flawed review can have been devised and by whom ?
The question of the effects of the Receipts and Payments mismatch bug
(undisclosed) and its potential impact upon the safety of a conviction,
remained, it would appear, unconsidered.
The Post Office’s decision to cease prosecuting its postmasters for Horizon
shortfalls from 2014 was likely the result of the the July 2013 Clarke Advice
and the Post Office’s requirement in August 2013 to notify its insurers.
The Bates GLO litigation presented similar risks to the Post Office. The
lengths to which the Post Office went in resisting disclosure of important
relevant documents were extraordinary, most notably in resisting disclosure of
the Fujitsu Known Exror Log. The Post Office formally by counsel submitted
to the court the KEL was irrelevant, a submission presumably based upon
instructions.
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The entire history of the Post Office’s legal proceedings, criminal and civil,
reveals widespread, long-term and systemic disclosure failure. The failure to
disclose the 2010 Ismay report, the Detica October 2013 report, the Post
Offic
's notification of its insurers in connection with Mr Jenkins’s evidence,
and material in the Clarke Advice in 2013 are striking and important examples.
That the Post Office withheld disclosure of its notification of insurers in 2013
on the false basis that it was subject to legal professional privilege was wrong
and is inexcusable. Disclosure of that material would have fundamentally
changed that litigation. It would have also provided the true explanation for
Mr Jenkins not being called as a witness. It would have also led, ineluctably, to
the revelation of Mr Jenkins’s unreliability as a witness, known to the Post
Office in 2013.
It remains unsatisfactory that in November 2020 the Post Office stated that the
Clarke Advice was disclosed “in accordance” with Nunn, yet in 2013 it had
been subject to careful consideration by the Post Offi lawyers but was then
withheld from disclosure. Its importance was not only that its principal expert
witness was found repeatedly to have given incomplete evidence of his full
knowledge of bugs and errors in Horizon, but that a bug that he had not
disclosed was the Receipts and Payments mismatch bug, that undermined main
contentions by the prosecution in Mrs Misra’s cas
Between 2010 and 2020, the Post Office engaged in an elaborate strategy of
suppression and withholding - concealment - of its knowledge of serious
problems with Horizon, the acknowledgement of which carried prospectively
commercially disastrous consequences, consequences that have now in fact
eventuated. “Deception” is the appropriate word.
The Post Office’s strategy of concealment and deception has caused resultant
harm, including inordinate delay in justice that is irretrievable and incapable of
being adequately compensated. An approach to fair compensation by analogy
with fraud is appropriate.
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PAUL MARSHALL
Cornerstone Barristers
Gray’s Inn
23" June 2022
s7
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