Thread by @nickwallis

Welcome to Court 7 of the Royal Courts of Justice where the Court of Appeal will be delaing with two items on the agenda this morning.
1. An application by me for a document called the Clarke advice.
2. A contempt hearing involving two of the Subpostmaster appellants barristers.

It’s a pretty dreich day, but inside all is sunshine and light. Well tbh it’s like the inside of a gloomy gothic castle, but we approach the 10.30am start time of this hearing with businesslike efficiency.

I am going to be live-tweeting part 2 of these proceedings, but not part 1, as I might be invited to participate in them.

As usual everything I tweet is a paraphrase or summary of what is being said or what is going on in court. NOTHING is a direct quote unless it is in “direct quotes”.

I have a duty in law to ensure everything I write is contemporaneous, accurate and fair.

For context to these proceedings, before they start, you might want to read three reports I wrote over the last two weeks:

They are: "Fujitsu staff under criminal investigation named”

postofficetrial.com/2020/11/fujits…

“What’s in the 2013 Simon Clarke document?”

postofficetrial.com/2020/11/whats-…

And “Peer accuses Post Office of Lying”

postofficetrial.com/2020/11/peer-a…

All are either tangentially or directly relevant to today’s proceedings.

For anyone completely new to this - we are at the Court of Appeal to hear legal argument and proceedings related to R v Hamilton and (40) others.

Hamilton is Jo Hamilton, a Subpostmaster who was convicted of false accounting. She and the 40 others are hoping their criminal...

… convictions will be quashed by the Court of Appeal in March next year.

This hearing has blown up out of what happened in court on 18/19 Nov, which the links I have just posted report.

There are journalists here from the Daily Telegraph (by remote link) the Press Association and @TomWitherow from the Daily Mail. Tom has just said hello to me and I didn’t recognise him. Given we have been working pretty closely this year...

… that’s quite embarrassing. I blame the mask. And the beard. And the fact I only met him once three years ago.

Anyway - we’re about to start and I need to focus in case I’m asked t say anything. We’re off!

Okay we’re on a break. The court listened to my submission in full, which was unexpected.

Then the Post Office made their submission then Sam Stein QC for four of the claimants made a submission which I think essentially supported my submission.

Then Paul Marshall, who is representing three Subpostmasteres endorsed both Sam Stein and my submission.

The judges have risen to make a decision.

At the end the judges came back to me to ask if I had anything else to say and I said “No my Lord, I think that just about covers it.”

So I am now quoting myself in court.

In summary the Post Office’s position is that it wants to help, but wants the court to direct the disclosure of any documents going forward.

Mr Stein was more neutral, but he did make the point that disclosure was hugely important and should be the presumption.

I said I wanted the parties to help me with disclosure requests and not to trouble the court.

This is a largely niche administrative argument, but it will have a huge bearing on how I am able to operate and get documents into the publid domain.

Whilst we’re waiting I’ll publish the argument I made on my website postofficetrial.com

Wait out….

We’re back. The judges have made a ruling which Lord Justice Holyroyde is reading out now. Out of respect I will listen and get back to you.

Failed on all counts! No Clarke advice, no orders to receive written submissions, no agreement on requesting evidence, no transcripts to be provided at the public purse.

Oh well.

I’ll get the full ruling as read out just now later.

If you want to read my application it’s here:
postofficetrial.com/2020/12/applic…

If you want to know what I said to support my application, it’s here:

postofficetrial.com/2020/12/oral-s…

The latter is much more readable...

…. as it was written to be said out loud.

We are now on a hiatus whilst the second issue of the day is discussed - whether or not one or more barristers committed contempt of court.

Sorry - we are on a hiatus BEFORE the second issue of the day is discussed. People are being moved around the courts. I’ve been kicked out of the main court and put into the overflow court for this one.

Whilst I was sitting and listening to the judgment I was getting genrtly rained on, thanks to a leak in the court's Victorian glass roof. It felt apt.

Still - we give these things a go, eh?

Now I can get back in my box and prepare to live-tweet the rest of the day’s proceedings.

Court is back in session. Brian Altman QC is explaining that he felt he had a duty to bring to the attention of the court the email from Lewis Page and the leaking of the Clarke advice to the Met police.

BA: for the avoidance of any doubt the PO has not made any application...

… for a committal of contempt. We were invited to assist the court which we have done. For Flora Page (the barrister who leaked the Clarke advice to Lewis Page) this involved drawing up possible charges and also we have at the invitation of the court drawn up confidentiality...

… argreements.

In essence this deals with our concern about confidentiality - especially in the light of ongoing criminal proceedings against Fujitsu members of staff.

BA says we are not clear where we are going forward, but we do not agree with FP’s counsel who says 18/19 Nov was unfair.

BA we will say we are v concerned that these separate proceedings are diverting the court from the determination of these appeals - most of which PO has...

… conceded.

But the court might wish to consdier that it might be better going forward for the court to consider appointing counsel not related to these proceedings to deal with the contempt. Or possibly a different “constitution” (ie another set of judges) altogether.

BA All of the appellants counsel and solicitors have returned signed undertakings not to use the material for any improper purpose in order to satisfy Post Office and those who instruct us.

Lord Justice Holroyde - thank you. mr Henry?

Mr Henry (counsel for FP): I would like...

,,,, to tell you who FP is.

Enrolled as a solicitor in 1998 working for Clifford Chance. As a result of being moved by a certain person’s circumstance she began to toil in the fields of legal aid, petty crime etc - she did that with distinction for 10 years. Then she decided to

… be called as a barrister in 2012. In a profession which is all to readily known for the demands it makes on criminal practitioners she has brought up two children. I am proud to represent her. She was moved to pity by the unfolding tragedy of the Subpostmasters’ situations.

She decided to work for free, and when she got some legal aid for it after working for free over summer, she decided to donate it to those less fortunate for herself.

She is now in a position where she disclosed a document (the Clarke advice) to her brother, purely to aid...

… accurate reporting. Nothing malicious, and it could have been sorted out by an conversation between counsel.

You are dealing with a person of great integrity - we respectfully submit - my learned friends who have all the appearance of being a prosecutor in this case...

… and did not draw the court’s attention to the relevant law and the court was left floundering and I make no criticism of the court.

Edward Henry QC is the man talking now representing FP, so we’ll call him EH.

He is making the point that Brian Altman QC (BA) did not make it clear in law exactly what was going on.

This is apparently a “classic" 48.9 1 (a) 2 submission.

The rule applies if there is intimidating conduct etc etc where the court has to deal instantly with what is going on in court.

That is not how this matter started.

We are going back to a transcript from 18 Nov. Basically EH is pulling apart what went on the 18 Nov, particularly saying BA’s submission was the wrong approach.

[basically EH is putting this on the Post Office or specifically BA. BA before EH stood up said it was...

… a duty to disclose and having disclosed, it was only thereafter assisting the court under the court’s direction]

EH The matter was raised - the jack came out of the box because of the actions of the respondent. There has been substantive procedural unfairness...

… in this case… but anyway what happens next? My learned friend - I don’t mean this to be ad hominem
LJH It is ad hominem
EH these whole proceedings are ad hominem
LJH we’re not going to be helped by that attitude
EH sorry heat of the moment, but...

… this is very very personal.
[goes to quoting BA]
EH: BA says he has no wish to prevent fair and accurate reporting subject to reporting restrictions...
EH: neither does FP!

[lots of quoting of 18 Nov transcript - which I have bought at great crowdfunded expense]

[so I’ll post it up asap]

EH my friend [BA] is now looking at this as Captain Hindsight, but the court was on 18 Nov prompted in the direction of 48.5 so as a result of that my lords my lady you have appeared to have embarked on your powers of 48.5. Summary procedure.

… you were acting inquisitorially.

EH: you were very aware of FP’s rights, but it is difficult when asked by the court to give a point of view not to. The difficulty as counsel as that she may well have been obliged to put the record straight. Her only concern was to do...

… the best by her clients - fall on her sword. Any suggestion she answered the court’s questions voluntarily have to be seen in the light of that. She has three rights impeded 1. Right to silence 2. Right not to self-incriminate 3. Right not to give evidence….

… the bedrock of my submission is that in order to defend yourself you have to know what sort of contempt your are dealing with.

[EH still going on about the nature of the contempt that FP was facing]

[He said this would be quite a short submission. It’s not.]

[Basically making the point that up to now FP has not had a fair crack from BA or the court]

[EH now making the point that the Post Office has made this complaint it has to stay part of it - it can’t say we have nothing to do with this and will stand aside]
EH the matter has to be dealt with by the respondent (PO)

EH regrettably the court was diverted and the protections were disregarded. This is not a technicality this is substantive unfairness.

MRS JUSTICE FARBEY DBE (one of the judges) pushing back on the assertion that she was invited to make an explanation. Says she was invited to say something or not say something.

[Basically the issue in play is that FP apologised and said leaking the document was something she shouldn’t have done. EH is saying that what she said should be disregarded because she was invited to make this statement erroneously] [Judges pushing back against...

… the idea they were acting inquisitorially]
EH you weren’t intending to act unfairly, but FP gave an explanation to your inquiry and the court went from there to certain conclusions as to her conduct.

LJH - with the greatest respect

[LJH is speaking so quietly it’s impossible to hear him]

[LJH wants to know where EH is going with this after lunch]

LJH i want you to tell me what you think the court should have done when confronted with a document which on the face of it was confidential and had been given to a journalist.

EH well - I was concentrating so much on your Lord’s second point I forgot your first
LJH what are you asking us to do
EH yes
LJH no that was the first point. What are you asking to do
EH it would be better if this matter were release to another court. Contempt as...

… the Lord Chief Justice says is that formality is not a moot point, they need to be scrupulously observed. If the court were to retain control of this it would not be salvageable. There was a failure to observe procedural formalities right at the outset.

EH Also the court has already come to a concluded view (based on the other matter of the Clarke being released to the media) - it has already come to a settled conclusion on the matter in hand and FP’s conduct.

LJH nearly time for a break, but I want you to address afterwards what should have been done in that situation bearing in mind the situation the court found itself in.

[court rises for the short adjournment - ie lunch)

Back at 2.05pm

We’re back. Flora Page’s barrister, Edward Henry is on his feet.

EH we seek 3 directions from the court
1. This constitution should play no further role in any CoC proceedings nor should it initiate proceedings against FP nor Paul Marshall...

… the only way the matter should return to the court is via a bilateral light (?) - it was engaged because all the party (ie the PO) had to do was allege the contempt - which it did.

EH: our submission is that it was only on 19 Nov that the Court appeared to act of its own initiative and this (and I don’t mean to be facetious) this is the problem with the push-me pullyu approach - due to the lack of clear guidance at the outset. So we say
2. If any committal

… application is to be brought by the Post Office. And we also say that the court ought to ignore all matters uttered by them before their involiable rights were read to them and they were fully advised upon.

LJH: what about what Paul Marshall said when he was asked if he wished to say anything and he said it was nothing to do with his solicitors it was all mr page
EH - that’s for Mr Marshall’s barrister to address not me

Mrs Justice Farby: she simply agreed with the facts are you seriously suggesting she might say she didn’t pass the document in the way she said she did
EH - she would never do anything so discreditable
MJF - are you saying the court can’t ask the question?

EH - well it had already been established by Mr Altman
mr Justice Picken (?) - I’m not sure it had
[I am in an overflow court and am simply listening to proceedings. I can’t see who is speaking because the picture is tiny. I’d probably be better off at home with a link]

[Basically the judges are unsure that they should disregard the exchange on 18 Nov]
EH judges are entitled to ask these questions, but when a clear allegation of contempt is made and there is a potential contemnor those strict protocols are engaged. So whilst the court is...

… perfectly entitled to manage a document, it should not go through an alleged contemnor to manage that document. Strict protocols are engaged - so I ask you to disregard what was said by FP and Paul Marshall on 18 Nov and…
3. This needs to be heard by different judges to you..

… because of the situation you were led into on 18 Nov.

So on to what do you want me to do.

Well - this document would not have been published without it being mentioned in court. If the court had said this document should not be published, it wouldn’t. Therefore there...

…. was no harm and no risk.

I do not wish to underplay the problem the court was presented with. But the court should have ordered a prohibition of the publishing or use of the document directly or indirectly.

… but as soon as the mention of contempt was made NO inquiry should have been made of FP because of her 3 discrete rights.

And then FP was entitled to see her rights, the allegations in writing and have a counsel for her response.

Lord Picken (?) that’s precisely what we did. Is there a procedural breach there? If so where?
EH well this is what you did on the 19th November, but the unfairness was on the 18th. So it starts off as one gateway - the Respondent - then there is a hybrid procedure of inquiry...

… then on the 19th the court decides to act of its own volition and proceed with the charge of contempt. And we are concerned with the 18th.

LJH - you mentioned your submission that the issue of contempt should only return to the court via 48.9 1 (a) 2 - is there a reason why it might not be addressed in the future pursuant to 48.91 2 (b)?

There is an issue here. The impact of what has happened on the conduct...

… of proceedings. The court has had to spend a substantial amount of time on the fallout from this. Which would never have happened if the document which hadn't been passed to a journalist by Ms Page. Which led BA to raise it with the court which led to the press interest...

… all of which has taken up a lot of time.

EH I realise its’ taken a lot of time, but FP has self-reported. It’s also related to what happened 18 Nov. Any inquiry made by my Lord would impugn on her ability to stand on her rights as she has a duty to assist the court.

EH I am aware of the difficulties this has occasioned, but it was a bilateral issue and should only proceed if the PO are engaged.

[all this is argument to say this can only go forward if a) the PO want to be part of it b) and it drops any reference to anything FP and PM said...

… on 18 Nov]
LJH - let’s wind the clock back and suggest that all the court knew was that there had been a leak to Mr Page and the court was concerned about that. What then?
EH I suppose the handing over of the document was only to assist…
LJH I’m inviting you to assume...

… the court knew nothing of this. Consider if the court was just told what it was told and somehow it had got into the hands of a journalist who happened to be the brother of counsel. We can’t take it any further than that. And if the court proceeded without telling anyone...

… [sorry - asking] anyone what had happened. What do you say in hypthoetic circs where Ms Page DIDN’T volunteer the information. What should the court have done?
Should the court have scrupulously refrained from asking anyone what the court is to do?
EH to proceed with...

… caution, my Lord
Justice Picken - did we not do that?
EH the court has to protect its own process, but where the doctrine of contempt comes in the court should not abrogate that responsibility. the court had the power to manage the matter and did so by requiring...

… all copies of the document to be destroyed.

[all three judges weighing in on EH’s argument - asking if EH is suggesting that the moment BA stood up to say anything the court’s hands were tied]
[a lot of weight being put on rules (eg 49.91 (b)) ]
EH i suppose this illustrates the complexity and the need for FP to know...

.. her rights. There is no suggestion the court came to conclusion or without FP’s rights, but we say thos rights were abrogated.
LJH we have no further questions.
Mr Lawrence on his feet for Paul Marshall
[I can barely hear him]

His name is Patrick Lawrence QC so we’ll call him PL.

PL pointing out on 19 Nov that the court invited Brian Altman to draw up contempt charges possibly for 2 people. ie his client Paul Marshall.

PL reads from BA raising PM as possibly being conjoined to the contempt proceedings.
PL i raise this to seek to define the locus I have today as a represtative of PM. It can be inferred from the transcript of the 18/19 that documents relating to contempt might have been served..

… on both barristers.
PL I am going to start by making it very clear that no document of any type initiating an application of contempt or one even intimating contempt has been served. The procedure under the CPR set out in 48.9.2 or 48.9.4 has not commenced in relation...

… to my client Mr Marshall, nor has it in relation to EH’s client, FP. So if I can assist the cour I will, but there is a limited about I can sauy or wish to say. No formal or informal allegation of contempt has been raised against PM, so I do not seek to address the...

… to the underlying facts in issue. I will after 48.9 is introduced.
The procedural safeguards which the rules created re contempt need to be abserved scrupulously and just as scrupulously when laid against a legal person as they do in other cases. There is a temptation to say..

… these are lawyers, they know the score and this allows us to cut to the chase. This temptation should be resisted. The position of my client FP and PM is exceptionally difficult. The court is understandably...

… concerned to ascertain what had taken place. Counsel is being pulled in different directions.
1. Counsel is accustomed on oath to assist the court.
2. The barrister in the case also owes an obligation to their clients
3. When serious allegations are raised against them...

[I think he says something about having to give regard for their own position]

PL the court asks - this problem was raised, what should we have done? I say - first - these things happen, but it would have been much better if the court had then and there been taken to the...

… relevant CPR. It would have brought into focus the mandatory rules that need to be followed. Once that distinction had been brought in focus, where allegations of this type are served I respectfully submit that the court would have taken great care over a permissable...

… facutal inquiry rather than one which would have opened up an unguarded response.

LJH are you submitting that FP made a premature and ungaurded response then?
FL I am not going to make any submission on that or the underlying factual situation. Because if my client faces the possibility of this become a fully-formed allegation. Which should be in writing...

… and he will have 10 days to respond and then it will be addressed. I am sorry if this is unhelpful, but we invite the proper procedure.
LJH why from your general propositions do you say its legitimate to inquire if Ms Blogs is related to Mr Blogs when that may be the ONLY...

… basis on which a contempt procedure would be based
PL there is a real tension between the court controlling and abusing its own processes and the need to defend a summary allegation of contempt.

Judge: what is it that your client said on 18 Nov that causes any difficulty in relation to the question LJH has put to you
[I can’t hear the answer - he’s too far away from the microphone]
Judge: your client hasn’t said anything about the email he sent to the Met police...

… so there hasn’t been any inquiry made of him.
[inaudible]
[I am wondering what the point of me being here is. No documents, no way of hearing important stuff that’s being said….]

[I’m not even being paid]

[ever wonder about the career choices you made…?]

Judges suggesting PL is trying to have it both ways by making submissions about the scope of any potential proceedings without answering any factual questions put to him by the judges.

There will be a break soon - I’ll ask the ushers to tell the other ushers to tell the barristers in the other court to speak into a microphone during the next session, and see if that works. if it doesn’t I will go home and then think about spending £400 of crowdfunding cash...

… on a transcript.

PL has finished.
LJH what is the position if this constitution or another constitution takes a view there is a matter to be investigated?
PL [inaudble]
LJH let’s try to focus. Suppose the PO says it wants to get on with the appeal, it’s in the middle of a major disclosure...

… exercise and has received undertakings and doesn’t wish to take things further. But the court wants to. Are you saying there’s a bar to the court exercising its powers?
PL No.
LJH Thank you.
PL But… [inaudible]

You are in a courtroom. You can hear voices.
A shaft of light comes from a window placed in the high ceiling above.
There is the sound of a clock ticking….
You wait...

It’s not clear what the voices are saying.
There is a bookshelf of leather-bound books on the wall to your left.
Time passes...

[the court has risen so PL can speak to PM on the phone before any ruling. I am making respresntations]

[the usher has gone next door and returned to say the barrister was not standing near a microphone, which I sort of guessed]

Judges are back. LJH Firstly dealing with the idea that the Post Office may be a respondent in this. We disagree - this is all about the administration of justice. The control of documents is essential. Quotes a HoL ruling. Given that reasoning there is an enhanced...

… duty to consider the interests of justice and the integrity of the processes of the court.

LJH insofar as PM is concerned no process has begun and that process will begin when and if it should. We say EH’s submissions are entirely misconceived.

LJH we did not make any allegation - either in law - all I did if one looks at teh transcript was to bring to the court’s attention all we knew at that point in time. And all we knew was that Mr Page had sent an email to the Post Office and that he had seen the documents.

LJH - Mr Page did not identify which person within Aria Grace did this.

LJH
On 18 Nov there was no contempt of court inquiry embarked upon. Or the 19th. But on the 19th and only then the court set in train the first step. And only then did we invite assistance to formulate charges. The court...

… has acted entirely properly. [starts quoting CPR]

[Woops major correction - it’s Brian Altman who has speaking in the last few tweets!!!!]

BA the truth is, no contempt of court proceedings have begun and it is for the court to take matters further if it chooses to.
Justice Picken: Well - it’s for the court or the PO
BA well the the court knows the POs position.

[I think, because I can’t see, and because I can barely hear and because I just put words into the mouth of a judge that were actually from the PO QC I am going to admit defeat and stop tweeting]

Closed justice.

Unless…. I can try getting into the public gallery of Court 7.

Let’s see.

Okay I’m in court 7 public gallery - much better in that I can almost see what’s happening and nearly hear what’s going on, but at the moment that is frankly not quite good enough and I don’t want to get in trouble with the court for failing to report this properly.

Okay we have a result. The Court of Appeal has ruled that it is handing potential contempt proceedings involving Flora Page and Paul Marhsall over to a different constitution of the Court of Appeal (ie the current judges won’t hear it). Furthermore...

… it will not be heard by anyone until after this first tranche of appeals has been heard during the week starting 22 March 2021. This is to allow the judges and the parties to focus on the appeals as a priority.

It means Flora Page (who has now dropped out of representing any appellants) and Paul Marshall (who currently remains counsel for Misra, Felstead and Skinner) will have the possibility of contempt proceedings hanging over them until April next year.

But it does mean that Mr Marshall will not be distracted by advocating for his clients to a constitution of justices who will then be potentially hearing contempt proceedings against him.

An interesting twist is that Lord Justice Holroyde left the decision about whether the Post Office will still be a party to the contempt proceedings to the new constitution. Well - interesting if you’re a serious legal anorak.

I’m going to write all this up for my website postofficetrial.com - if you want to make a donation to the tip jar please do here:

but be warned, I’ll only go and blow it on transcripts.

Actually the judge did hint that...

… it might be a good idea if the parties cooperated on transcript procurement and cost, so if I could at least see if I can get that off the ground it would be a minor victory.

We ain’t going to see the Clarke advice, though. Not yet. Not yet.

Oh sorry - forgot to actually link to the tip jar, didn’t I?

Here you go: store29806256.company.site

Have a great evening and thanks for reading.

@threadreaderapp unroll please.