Thread by @nickwallis

Welcome to the Royal Courts of Justice. Haven’t been here since the handing down of the Depp v NGN judgment. It is a mild, bright autumnal day here in London. There follows...

… a series of live-tweets outlining what is happening in court, as it happens.

My tweets are required to be accurate and fair, but they are only a summary desciption of events NOT a verbatim record of proceedings. NOTHING is a direct quote unless it is in “direct quotes”...

… Today we are here for a directions hearing (legal argument) about the appeals of 41 Subpostmasters who were given criminal convictions for fraud/false accounting and/or theft after being prosecuted by the Post Office...

… We are in Court 4 - “The Court of the Lord Chief Justice of England and Wales” - it says on a notice outside.

The Subpostmasters are represented by a number of different legal teams some of whom are present in court, some of whom are dialling in via a screen...

… I have been sent to the public gallery for social distancing reasons, however @samiotobin
from the Press Association rocked up and was given a plum seat on his own in the well of the court (grumble grumble)...

@samiotobin … Proceedings are due to start at 10.30am.

I have made an application to the court which I am told might be dealt with first.

So I probably won’t be able to live tweet that bit.

Sam is, to be fair, a pre-eminent court reporter - this is his beat and he has a very cool pass to prove it. I am glad he was here.

I just wish I was a bit closer to him.

There are three Justices overseeing proceedings today: LORD JUSTICE HOLROYDE
MR JUSTICE PICKEN
MRS JUSTICE FARBEY DBE. The “lead” judge is Lord Justice Holroyde.

The list of appellants can be found here: justice.gov.uk/courts/court-l…

Okay we’v started.

Judge has just dealt with my application to receive the CCRC’s statement of reasons, appellants grounds of appeal and Post Office responses plus any interesting documents requested over course of proceedings.

Allowed me to received CCRC statement of reasons and has suggested...

… I request all others from the relevant solicitors directly. If there is any dispute over whether they can and/or should be disclosed, I can take the issue back to the court.

So here we go. Lord Justice Holroyde (LCJ) laying out the situation. Of the 41 appellants the Post Office is not contesting 4 on BOTH limbs of the CCRC’s referral

1. Lack of disclosure
2. Affront to public conscience

(for more, read this primer: postofficetrial.com/2020/10/court-…)

LCJ notes that 4 appellants:
Jo Hamilton, Hughie Thomas and the two Alisons are not being resisted on both counts.

The 3 appellants being resisted on both counts are:

Stanley Fell
NIlam Hussain
Wendy Cousins

(forgive any incorrect spellings)

LCJ says he notes there is some resistance from counsel to some of the remaining 34 that their conviction should only be quashed on the first limb (lack of disclosure).

Leading that charge is Paul Marshall who contends of behalf of his clients - Seema Misra, Tracy Felstead...

… and Janet Skinner that their prosecutions were also an affront to public conscience.

LCJ is keen to sort out that element AND the issue of the four appellants being completely resisted by the PO before Christmas.

Brian Altman QC is on his feet for the Post Office.

BA: Yesterday PO received an email which is handed to the judges. It is from Lewis Page who works for the Daily Telegraph. He says in his email he has been talking to the legal team representing Misra, Felstead and...

… Skinner.

Mr Page in his email to the PO says he has seen an internal PO document disclosed to the legal team for Misra et al written by a barrister called Clark in 2013 about Gareth Jenkins (the senior Fujitsu engineer) evidence to the courts in PO prosecutions...

… it appears that internal document says that Jenkins evidence was wrong.

BA is pointing out that this document was disclosed to the legal teams purely for legal proceedings, yet it appears to have been leaked to a journalist.

And that doing so is contempt of court punishable by imprisonment or a fine.

BA points to case law in 1982 referring to a document being read out in open court subsequently being passed to a journalist and that this was decided as contempt.

BA points out that Lewis Page from the Daily Telegraph is related to Flora Page who is acting as counsel for...

… Misra et al.

Looks like Mr Page has seen an extremely sensitive document wirtten by Simon Clark - in house counsel for Cartwright King - relating to the evidence given by Gareth Jenkins to the courts in 2013.

BA The advice to which reference is made was made available last week. It deals with Gareth Jenkins, his evidence as an expert witness and the fact he had told second sight in June 2013 that Horizon had “some bugs” which appeared to contradict what he had told the courts.

BA this document was discolsed to Aria Grace (Misra et als solicitors) last week. It is privileged advice.

We submit that provision of this document by legal representatives of Aria Grace as stated by Lewis Page in breach of terms of the Disclosure Act, agreements and...

…. common law, amounts to a contempt of this court.

The court will want to hear argument about whether there should be reporting restrictions now there is a a criminal investigation into former Fujitsu employees Gareth Jenkins and Anne Chambers.

The judge has risen whilst a technical gremlin is dealt with.

He has ordered no live-tweeting of proceedings until further notice as we are about to hear submissions on possible reporting restrictions.

Just for the record, I informed the judge from the gallery I had been live tweeting everything that had been said up to that point.

I will not be live-tweeting anything else going forward until clear permission from the judge is given.

We are having another break in proceedings. In a change to the advertised schedule, I will be tweeting during the breaks in proceedings and falling silent whilst the court is sitting until further notice.

And I don’t know why I decided to shorten Lord Justice Holroyde to LCJ. LJH would make more sense. If I’m authorised to restart the tweeting he will be LJH henceforth.

LJH has not put in place any reporting restrictions under Sec 4.2 of the 1981 Contempt of Court Act. He has reminded the media of the "general need on their part to avoid reporting anything which may prejudice...

… the ongoing investigation or any chatges which may flow from it.”

Noted.

BA QC for the PO is reading from the CCRC statement of reasons.

[the court is being invited to look at issues of privilege - ie what documents might or might not be privileged and to what extent]

Mr Steen [?] on his feet. Telling the court that the Peters and Peters disclosure exercise (the PO contracted a law firm to basically dig up any...

… relevant document buried in the legal papers etc which Peters and Peters thinks should be disclosed. Then disclosing it to the appellants, and presumably any future appellants. The disclosure process and the events of this morning...

… suggests these will remain buried from public view.

Mr Steen says none of the people prosecuted by the PO would have any trust in any disclosure process and claim of privilege.

Mr Steen says how pirivilege should govern disclosure is awkward. The question of privilege is the extent to which something should be disclosed, how it will be governed by the court and how far it should run

Mr Steen: I keep my submissions in outline until we have seen the extent of the disclosed material.

Mr Justice Picken intervenes to say that privileged material can be disclosed. So what’s the point?

Mr Steen says that if there is dispute about which documents - it is how to...

… resolve it. On the basis that we haven’t seen all the disclosure.

LJH You’re indentifying a bridge we may have to cross one day.

MR Steen. Yes

LJH: Mr Altman and Ms Johnson are fully alive to their responsibilities I am sure.

BA: there is a vast disclosure exercise ongoing and the Post Office is being entirely co-operative.

BA goes back to the three opposed cases (the three CCRC referrals which the Post Office is resisting, as opposed to the 44 it accepts were abuse of processs).

BA all three have submitted supplementary grounds to the Court of Appeal, and Mr Altman is raising points within them.

LJH pointing our Fraser J’s judgments can be considered fresh evidence and says that re Mr Fell and Mr Hussain that it is commonplace for an appeal...

… to rely on the evidence of an appellant and it might be that the court might wish to hear oral evidence from them at a hearing down the line. LJH invites Mr Steen to speak re Mr Fell. Would Mr Fell give oral evidence?

Mr Steen: Best and short answer is yes

LJH and Ms Beesley on behalf of Mr Hussain?
Ms Beesley: Yes

LJH asks Tim Moloney QC who is representing 30+ appellants to speak. He notes they want Second Sight to assist his clients. LJH says could they give factual evidence as well as being experts?

LJH is there any tension there?

TM QC: can I put this in the context of Wendy Cousins (the third contested appellant)?

LJH yes

TM: Wendy was prosecuted for 11 counts of fraud, double entering pouches and the PO position is that this has nothing to do with Horizon...

TM… but the disclosure from the Post Office has raised the issue that she was told she was the only one who could have committed the fraud. That’s not the case. But also the potential for the Horizon errors in cash and giro transactions - and there were some errors...

… or evidence of fraud which happened at her Post Office when she wasn’t there - she was abroad.
So Horizon’s apparent capacity to cause problems with cash and giro transactions is in play, which is why we are seeking expert evidence.

TM: it is not a wide-ranging investigation we are asking them to do - just into that specific issue which we say caused the error for which she was prosecuted.

[we now go to a discussion about whether or not there should be a hearing about whether in principle there should be a hearing about the second limb “affront to the public conscience” for the appellants whose first limb is not being opposed by the Post Office]

Paul Marshal for Misra et al: My client Tracy Felstead convicted in 2002 she has been waiting 18 years for this day, she in hospital with a suspected stroke - in fact she is suffering from a neurological illness induced...

… by stress and since her incarceration in 2002 she has suffered significant episodes of mental illness. She wanted you to know this.

My lord the development to which Mr Altman referred this morning…

[this is the privileged one which discusses Gareth Jenkins evidence in criminal trials]

That document is very important - it was wholly unclear that that document was disclosed to the CCRC. If so it is extraordinary it has not been part of their submissions.

Part of the point of my wishing to explain our position in more detail - if the documents had been disclosed much earlier the appellants would have put their grounds in a completely different way.

LJH: How does this bear on the question… bear on our proposal that there be a separate hearing on the question of principle that if the court should hear argument

… about the second limb.

PM it is in intractable [?] that the argument be heard this term due to the nature of the documents being disclosed. There needs to be an end date for disclosure.

… the disclosure that has been given recently followed disclosure of great importance in October and it was in our response to that subsequent disclosure was given on the 12th November….

… so to answer your question yes there should be a separate hearing re the principle of the second limb arguments subject to my observation that before end of term would be very difficult because by then we would not have full disclosure.

[that speech from Paul Marshall was delivered over a hellishly bad remote line]

LJH is not moved by this argument. There are no other submissions from any other of the appellants' counsel.

[No date is set. The judges rise for lunch]

I’m told by an observer that the date of 17 Dec was set to hear the second limb argument. But there is some discussion in the well of the court as to whether it was in fact 18 Dec.

Judges now sitting. They are revisiting Ms Page’s possible Contempt hearing at 4pm today. Asked her to come to 10.15am tomorrow with representation and to get her brother Lewis Page to send back the document with assurances he wont’ use it.

If he won’t do that then he will be required at 10.15am tomorrow in court and if he won’t come to court the court will take steps to secure his attendance.
The judges have also decided to alert the Director of Public Prosecutions.

She is not required at 4pm today.

Ms Page replies she already spoken to her brother and he has undertaken to destroy/not use for publication the document in question.

We move on to the four appellants whose second limb (“affront to public conscience”) is not being contested by the Post Office.

They are all represented by Hudgells whose QC Tim Moloney is on his feet pressing his clients anxiety to have their convictions quashed.

LJH makes the point that it is for the court to quash a conviction notwithstanding the lack of opposition AND that as other appellants are claiming limb 2, the reasons for not opposing may come into play.

LCH indicates the full appeal hearing could go ahead on 22 March.

Suggests timetable that any appellants appealing on Limb 2 should tell the court by 11 Dec with a response from the PO by Jan.

And that therefore there should be a hearing for the 43 uncontested appellants on 22 march and the fou contested appellants four days later on 26 March. LJH Now setting out dates for skeleton arguments to be set out and recevied.

LJH says Seema Misra arguing additional grounds for appeal beyond limb 1 and 2 will be heard at the beginning of her appeal on 22 March - doesn’t need a separate hearing.

LJH clarifying to Mr Stein that if his client(s) wish to join Misra, Felstead and Skinner in arguing...

… limb 2, then he should notify the court by 11 Dec.

Mr Stein also noting that he won’t be availble on w/c 22 March and wonders if appeals could be heard in April. LJH waits to hear from others.

Okay plan is for appeals hearings to start on 22 March and go for four days. Tim Moloney for the Hudgells clients wonders if having everyone around all week for the 22 March is a bit impractical and wonder if the hearings could be divvied up according to cases.

LJH taking on further sumbmissions re dates.
Now turns to disclosure. LJH notes from Ms Johnson for the PO that disclosure exercise is due to be completed by 5 Feb.
Now turns to Mr Moloney re expert evidence for his clients. Why did he need one?

TM - the mechanisms in place in branch and within the systems of collection by Royal Mail

2. The prevalence of reintroduction fraud nationally in Post Office branches

3. The potential for Horizon to have been responsible for apparent cash and giro transactions which as a...

… matter of fact, where never established to be such by the prosecutors.

[recognises 2nd poin may not need expert evidence]

LJH you are more likely to be successful on 1 and 3 unless you want to argue further

TM I wouldn’t like to given the indications

LJH proposes rising before giving final directions

Mr Stein keen to stress his unavailability for 22 March and offers LJH to hear possible alternatives

LJH says he and his fellow judges will sort out the dates between them

Mr Stein “Fingers crossed”

[court rises]

I am not one to moan (well, I am) but it’s impossible to hear up here (a couple of the silks have v quiet voices), I’m running on auxillary battery power because there’s no plug sockets in the public gallery and these wooden benches are cripplingly painful.

And tweetdeck is ****ing me about.

It makes me pine for the Rolls Building.

Still, nice gothic architecture in here. You actually have to go up a stone spiral staircase to get to the public gallery. There’s lots of carved woor, ancient legal tomes and nice lady usher has...

… just waved at me from the well of the court.

Sorry if my tone veers towards flippant or facetious at times. I’m aware there are a lot of people who have been waiting years to find out their fate through the courts. It’s a very serious business and hopefully in a few minutes we’ll have a timetable laid out by the judges...

… which will put a concret date on the first full hearing for Subpostmasters whose convictions could be quashed.

Whether, of course, those hearings will end up being formally overturned at the end of the hearing, or whethere there will be a further wait for a final final...

… decision to be handed down, I don’t yet know. It will become clearer as we move into the new year.

We’re still on a break, btw. Waiting for their 2x Lordships and 1 x Ladyship to come back with the final timetable.

I’m bringing a cushion next time.

Judges back 22 March will be full hearing.

Re directions:
1. All uncontested on G1 but not on G2 on 17 Dec a) is each appellant entitled as of right to argue G2
b) if not what grounds can they do it.

PO must complete disclosure by 5 Feb

Any appellant wishing to add to CCRC statement of reasons must do so by 11 Dec

Any response from PO to that must be 8 Jan.

Appeals of all except, Fell, Cousins and Hussain will be heard on 22 March. Fell, Cousins and Hussain will be heard..

…immediately after.

Appeal will be listed for 4-5 days from 22 march. Misra’s extra grounds will be heard at her appeal.

Wendy Cousins' application for an expert witness is granted on grounds 1 and 3.

If any appellant wishes to rely on expert evidence it must be filed by 12 Feb and any PO expert evidence response must be filed by 26.

Experts must meet and agree/disagree on points by 12 March.

Any appellants who want to add oral evidence to their appeal must do so...

… by filling out a form by 12 March.

LJH thanks parties and representatives for their assistance and the court service for the remote links.

[court rises]

So that’s your lot. Another hearing on 17 Dec to see if the second limb of the CCRC’s reasons “affront to public conscience” can be argued by right or otherwise, and then steaming ahead to the full appeal hearing on 22 March.

If you want to know about the stories of...

… some of the people who were mentioned in court today, you can read Tracy Felstead’s story here:

postofficetrial.com/2019/06/post-o…

More here: postofficetrial.com/2019/01/victim…

There will be a write-up of what happened in court today on postofficetrial.com by this evening. Secret emailers will be alerted by, er, email. If you want to join the gang please consider signing up via the tip jar - nickwallis.com/tip-jar
Thanks for your patience today. N

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