Thread by @nickwallis

[SS taking us to an interview transcript from the hearing bundle in which an investigator is talking to an SPM who is trying to explain losses at her branch. She is talking about how she couldn’t find the source of her loss and she tried desperately to do so and didn’t know...

… the source. Didn’t know whether it was her mistake, theft by her assistants etc etc]

[SS reads from more transcripts - it is a desperate tale of a poor SPM putting her own money into the system to try to get it to balance]

[SS making the point that SPMs had no idea what was happening in their PO despite trying v hard to find out]

SS those issues were brought to the attention of MPs - refers to various letters from MPs to the PO. The issues and themes were broiught to the attn of the PO...

… by the people they were trying to prosecute… by Fraser J and by members of parliament. Those issues amount to ignorance and confusion and a lack of understanding on what is happening on behalf of the SPM:

a union contracted to the PO and not to the support of the PO, a helpline designed to recocer money, a PO “don’t tell” secrecy policy [etc]

These failures meant that individuals had to cover up losses they could not explain and not telling what had happened.

SS I doubt any one has seen an entire system warped against those it prosecuted to such a degree.

SS we now turn to the Simon Clarke advices and the assistance they may provide to this court.

SS By 2013 as stated by Fraser J the press had been reporting on Horizon bugs...

… MPs had been asking questions… and the PO was firmly aware it was going to be exposed.

Fraser J did not have the CCRC material, nor the info this court has. We believe if he did he might issue a call for those responsible for what was going on to go to a handy police...

… station as soon as possible.

[SS brings up Andy Winn’s comment “my instinct is we have enough on with people asking us to look at things”]
SS we see AvdB agrees this was an inadequate response [then he read from Fraser J again]

[par 219 here: bailii.org/ew/cases/EWHC/…]

SS Fraser J did not have the Simon Clarke advices and in our submission the SC advices help us see what the PO attitude was.

SS and a litmus test on their failure to have anything like a fair system of disclosure.

SS within the statements made by Mr Jenkins or Ms Thomas who were Fujitsu experts called by the PO say in their statements that there is no reason to believe that their statement is inaccurate - that H was operating properly and if it wasn’t it would affect the info held on it.

SS there are two Simon Clarke advices - 1st Bundle C, p81:

"This advce deals with the use of expert evidence re the integrity of the Fujitsu H system." We’ll call this the integrity advice.

Bundle C2 p119: The disclosure advice - the second advice needs to be considered first..

SS it’s re a meeting SC had at PO HQ re disclosure:

Par 2: one of the topics at the meeting was that of disclosure - he recommended a hub - putting everytihng in one place so there was a single info point

SS so we know by this stage - 2013 - no system had yet been established.

SS so we at least know what there WASN’T within the prosecution of people brought before the courts.

SS the advice was accepted and then there would be a weekly meeting and all H issues would be brought to the meeting.

SS so far so good. a late recognition, but a recognition...

… nonetheless.

SS this was an attempt to stop what was going on in the past, but par 5 shows us how the PO deals with this.
At some point after the 3rd conference call it became unclear what material was being held centrally or disseminated.

SS the following was then relayed to me - that minutes disseminated should be destroyed - the word “shredded” was specifically used. Handwritten minutes were not to be typed but sent directly to the head of security. Some at POL did not want any minutes taken at all.

SS what...

… we have is a disclosure system set up and we see the PO reaction to it is one of dishonesty and destruction - it is the shredding of documents. It cannot be read any other way.

SS handwritten minnutes were not to be typed and sent to head of security - this was not...

… you would imagine for safe-keeping.

[we are breaking for lunch. So the Post Office was involved in shredding documents around the integrity of Horizon. Interesting.]

We’re back in court.

Brain Altman QC for the PO says the press will get Bundles A and B and documents referred to in court from Bundle C - including the Clarke Advice.

Sam Stein QC on his feet re p1194 from Schedul C - "POL do not wish to minutes the weekly conference calls” p1194 refers to minutes from oneof those meetings. “Gail”referring to issue re connectivity and a transaction lost over comms

SS so the references within these docs...

… from the PO’s perspective they would be unhappy with these documents reaching the outside world.

SS the q’s being considered by Mr Clarke - the duty to retain and record material. he cuts and pastes from the investigations act - he says the duty to retain and record...

… material cannot be abrogated. And would be a breach of the law.

“Such a decision where it is taken partly or wholly to avoid disclosure obligations may amount to a conspiracy to pervert the course of justice”

so Mr Clarke recognises the conduct and how it might be described

SS the date of this is important. July 2013 - this is sent to the PO by Mr Cash (at page 1205) - the same date as the disclosure advice for the urgent advice for Susan Crichton and Mr Clemington.

Covering note says advice is sent as part of our brief to “protect the reputation..

… of the Post Office.” and you may want to seek a second opinion

SS why would a second opinion? not sure it’s needed. The point is CK saw it as their brief to protect the PO business.

We go to the first Clarke Advice July 2013 - p1 “I am asked to advise POL on the use of...

… expert evidence” in PO prosecutions. Simon Clarke then sets out the duties on prosecutors and how it extends beyond anything the defnce may ask for.

SC then talks about Gareth Jenkins, the fujitsu employee who has, for many years given expert evidence in support of POL...

… prosecutions. There are references to “Dr” Jenkins evidence [I think it has been established that Gareth Jenkins is not a doctor but SC calls him such during his Advice]

SS Mr Clarke says GJ has stated many times that H is robust and evidence from it can be relied on.

SS SC notes that all GJ’s documents have a similar flavour to them - that H is robust. GJ says failures only occur with tampering or a bug in the system but he does not say if any bugs are identified. The inevitable conclusion is that there are no bugs. He is attaining to the...

… robustness of the system. And not indicating he knows anything to the contrary. That was not the case.
SS says SC goes on to describe two bugs that GJ was clearly aware of and other bugs that he would have known about.

SS says SC says that if GJ had disclosed the bugs....

… that material might reasonably have undermined the prosecution.

SS says SC asks what this means. In short it means Dr Jenkins has not complied in his duties to the court, the prosecution or the defence. The reason as to why is beyond the scope of this review. SC then...

… advises his failure to disclose material undermines his expert evidence and credibility. he should not be used again, and not be used in future. This failing has a profound effect on POL and POL prosecutions bnecause material which should hve been disclosed to the defendant.

… and that there are a number of convicted defendants who should have this material disclosed to them. We should disclose this material to them. There could be appeals.

[wow. as I said at the Court of Appeal last year - neither MPs, campaigners or their own independent...

… were told about this advice and it wouldn’t have been made public if the SPMs hadn’t won the High Court case which prompted the CCRC referral which led to today. Wow. Wow. Wow.]

SS plainly at this juncture there were individuals at the post office who knew what was going on and who were doing what they could to protect the business.
SS we say at that point the SC should have called for an independent inquiry.
Justice Picken: well - we don’t know...

… what his brief was. Seems unfair to criticise him.
SS we say both Clarke Advices should have led to an inquiry.

SS the Clarke Advices were not disclosed to Mr Justice Fraser. They should have been. It is debatable whether they had any privileged protection.

SS instead what happened at the High Court was that material from Gareth Jenkns was used in High Court litigation and there was an attempt to explain why GJ was not called as a witness.

SS in the HI judgment pars 515 and 880 refer to GJ’s material being used within the litigation but the reason the PO chose not to call GJ as a witness was explained - it is difficult to ecuse the PO’s actions in seeking to put points before the High Court and then given an...

… excuse as to why he was not called. We do not criticise Mr de Garr Robinson or Bond Dickinson. It seems the PO did not supply this material to the legal team. The PO was acting dishonestly.

SS in summary it is our submission that the PO knew of H problems and that knowledge

… never reached the courts. If it did it would have got to the heart of hte operational reliability of H.

The PO did not put in place a system for alerts going to the legal teams

This went to the heart of the Post Office (eg head of security) and the “shred” evidence etc would, we think if it were known would make Fraser J’s eloquent prose even more damning.

[SS sits down. Lisa Busch QC for Seema Misra, Janet Skinner and Tracy Felstead stands up]
LB grateful to SS and TM (QC’s who preceded her) she adopts their submissions.
LB starts on the Clarke Advice. What is said in par 36H p93 from Bundle C [sorry I”m getting this exact for...

… future ref]

LB SC says in relation to any defendant who had raised H issues it might undermine the case for prosecution. my submission is that the duty of disclosure goes further than that. to echo the CCRC the duty of disclosure arose where the prosecution turned upon...

… the operation of the H system.

Justice Picken says his understanding of SC’s advice is that he was advising on past current+futre prosecutions hence the way he formulated.

LB acknowledges this. Goes on to point about formal duties of proescutors under CPS code of practice. We say there is an informal duty of investigation the Post Office was beholden to before any prosecutions were held.

LB [goes to case law]

[lots of case law]

LB we say the court’s focus should be wider than the trial and the trial process - it should look at the executive refusing to provide the court with information

LB I would like to touch on following topics - 1 relationship betwen G1 and G2, generic nature of the case, who knew what when, the “but, for” question [and two more I missed. she is speaking super fast]

LB G1 abuse is relationship between prosecution and defendant...

… whereas G2 is about the prosecutor and the courts
[she reads more case law]

LB a court suppress abuse of its processes and thwart any attempt to abuse those processes - the factual basis for G1 and G2 abuse significantly overlaps. The court’s focus is different and we say manifestly given the litany of the way the PO misled and deceived the defendants...

… and the courts it goes above the relationship between prosecutor and defendant. Court is directly implicated. Appellants could not have a fair trial, they did not have a fair trial and in all cases where PO has conceded G1, but not G2, the court needs to pay attention to...

… the way the PO brought the court into this by its actions.

LB now onto generic nature of the case. CCRC thinks G2 is applicable to ALL its referred cases. We submit this is correct. We say it’s clear that the evidence before Fraser J that H had errors bugs and defects...

… from before it was rolled out. That Horizon in its early iteration was not remotely robust [she continues to read from Fraser J’s HI judgment which makes it clear bugs in H could and did cause errors in branches.]
LB argues that if the PO is going to go at each case piecemeal

… it is the wrong approach. The PO should not be looking at bugs, or the bug table in the HI judgment and try to match them against convictions because no one knows how long bugs were operational.

LB onto who knew what when. There was ample evidence that H was flawed...

… from the date of its conception to the prosecution of all th CCRC-referred SPMs.
There is ample evidence to show that H was marred by bugs errors and defects and that the Post Office knew about it.

LB but that’s not the end of the story because in the circs where there may have been bugs, the critical point was that hte PO had a duty to get to the bottom of what was plainly going wrong. even if there were no investigative duty, there is sufficient evidence to establsih...

that not only did they not carry out an investigation, “they positively covered up the existence of such evidence as it was made available"

[A cover-up. Shredded documents. Abuse of process. Not good for the PO, this, but we will hear the PO’s side of the story soon]

LB it beggars belief that the PO would be more likely to believe that SPMs who had a spotless record would be turning to a life of crime in the numbers that they did when it was blindingly obvious that an alternative explanation was that things were seriously going wrong with the

IT system.

LB in judgments 3 and 6 (the two big trial judgments) fraser J notes that Angela van den Bogerd’s fall back position was that it was always mistakes by SPMs in the face of consistent evidence to the contrary.

LB PO’s failures are too numerous to mention in this submission, but just with regard to ARQ data. (Horizon Issues judgment par 914 "I can see no sensible or justifiable reason for the Post Office’s reluctance to consult the audit data in cases

… of serious dispute with SPMs, in particular the types of dispute which form the subject of this case, and without doubt, any dispute that involves criminal proceedings against SPMs….

… I also consider the same point applies in relation to internal Post Office proceedings that lead to the suspension or termination of SPMs. Acceptance of that point does not mean that that the audit data has to be consulted for every transaction correction issued by the Post…

… Office. As can be seen from the passage of cross-examination at [908] above, the Post Office effectively jumped to the issue of whether audit data should be consulted before issuing every single TC [Transaction Correction]...

… Mr Coyne [claimants’ IT expert] accepted it was not necessary to do that. That is not the same as accepting it should not be consulted in circumstances where there was a dispute between the Post Office and SPMs."

[we’re back into case law]

LB we submit that in all circs from the step that if the PO had acted with clean hands these appellant would not have been prosecuted - it’s a short step to say they should not and never should be prosecuted.

LB Finally - the role of the court. We refer to Fraser J’s letter to the DPP of Jan 2020 which summarises his CI and HI judgments. He considered important evidence had been put before the courts which was not true and was known not to be true. LB raises her client Seema and...

… the evidence provided by Gareth Jenkins against her.
[more case law on how judges have to be able to rely on what they are told by counsel and what counsel tell each other if a lie finds its way into that information then the prosecution is tainted beyond repair]

LB suggests the Post Office "systemcatically misled the criminal courts and sought to mislead the civil courts in the course of the group litigation"

[LB sits down. Sandip Patel QC on his feet]
[SP has 1 client here. He also appeared on our Panorama last year having taken an interest in this story for nearly a decade]
SP by the time of my clients trial in Nov 2010 the PO were fully aware of problems with Horizon.

SP we say the prosecution should have taken stock of serious misgivings about H. they did not disclosed to Mr Parek they had essential material in their possession and they didn’t investigate properly by asking Fujitsu for ARQ data. he was the victim of a failrure to disclose...

… and investigate. The PO says Mr Parek failed to mention H was an issue. I discussed this with PO and they agreed that actually he did raise it in his defence.
PO ceased to privately prosecute in 2015 according to evidence given by the current CEO Nick Read to a select...

… committee last year.
[SP sits down. It’s the PO’s turn. Brian Altman QC on his feet]
BA - a number of general and in sime respects individual point and I ask I come back to you tomorrow morning on them. Re limb1 - unless the court wishes any specific help on G1 we suggest...

… we don’t need to take up the court’s time as in all but three cases the PO has agreed that each conviction could be unsafe because they relied on H, they were poorly investigated and there was a failure of disclosure. The court has known from the beginning...

… when we served our notice in Oct 2020 that we would not contest on those grounds.

LJH could you just identify why there is a distinction where G1 is not contested and the small number of cases where it is

BA Horizon reliability. It is PO’s case that the CCRC’s refs...

… was that H data was essential. We say the reliability of H data was not essential. and that’s the point.
BA for the sake of completeness of the cases referred by the CCRC to this court, the PO has conceded 4 - Mrs Hamilton, Henderson, and Hall and Mr Thomas. We conceded on...

… 4 October last year.

BA we invite the court to have bundle B to hand. Our submission which is reflected in all the authorities is that abuse of process is a fact and time-sensitive exercise.

[BA is going to case law]

BA reads case law: each case of each alleged abuse of process must give regard to its own fact and circumstances

[okay so it looks like the appellants mainly want to wrap all the cases up into a massive affront to public conscience - Post Office considers this not the correct...

… legal route to go down. Each case MUST be considered on its specific merits]

LJH saying BA’s case law eg is with regard to a retrial. These are about factors relevant to a court’s decision re a retrial. That’s not the same to say a test is identical if testing for an abuse of process.

BA I agree - I am going to take you to more authorities. This is...

… not the only one.
[more case law sparring between Justice Picken and Brian Altman QC]

BA if I may turn to Warren in the Privy Council [more case law, as promised]

[Justice Farbey kicking back on BA’s use of Warren this time]
BA all I am saying is that the exercise is a balance of factors. It’s not a global approach. it’s a balance of factors in each case. We’re not trying to be obstructive. We have consistently argued from the beginning...

… it has to be case specific. Not a broad brush approach advanced by the appellants.

Justice Picken: it’s a factor not a clincher

BA: yes, but the court should not take - however tempting it might be - a global approach

BA standing back. If i may say that the court of appeal with 42 cases before it is possibly unique. It’s certainly unprecedented… but there is a difference between someone taking money to prop up a failing business and pleading guilty to someone pleading innocent throughout...

… and then being found guilty.

BA in the case of Mr Parek…. [BA goes to documents in the bundle bundle B 1178]… Mr Parek [par 3] during the course of his investigation he was asked to put his account in writing, he said he was waiting for a loan from the bank…

… had been paying his staff. His office was £50K - £60K down due to problems with staff, he’d been adjusting the balance and said he wished he was more careful and pleaded guilty to theft. I simply use this as an example as a factor to which the court may wish to have in mind.

BA the court may want to have this in mind. Thos SPMs who had taken money from the till saying they had suffered problems. There is a difference between thos who took from the till to pay themselves back losses and those who did it to prop up a failing branch.

BA I am not making a point about anyone individually, I am just making a point about the differences between the different cases
Picken - well okay in Mr Parek’s case - what is your objection
BA I am not trying to single him out but we wonder if it’s an affront to the public...

… conscience that the PO prosecuted him when he admitted taking money from the till?
[judges point out that he could be covering a gap made by Horizon. BA accepts]
Picken - so are you saying all this about the Clarke Advice that we’d heard today is entirely irrelevant?

BA the Clarke advice came about because of the information about 2 bugs which Second Sight [Independent investigators brought in by PO under pressure from MPs] found. The effect of the advice was that mr Clarke was making clear it was in breach of his duties as an expert...

… certainly in the case of Mrs Misra and other cases in the past. And should he be used again? No.
But this was advice written in 2013, but it does not apply to any case in which he did not give evidence.

When we come to the case of Lisa Brennan - GJ was not used. So it...

… can’t apply. As a matter of logic. We are not being obstructive we are just dealing with the situation as it presents itself.
We will also be saying something about the reliance on Fujitsu as raised by Fraser J.
If I could just go back to the authorities...

[more case law. woop. D Ltd v A - a private prosecution. trial judge discharged the case as an abuse of process. It was appealed to CoA and Lord Justice Davies…]

BA applications for a stay cannot be judicially resolved by a process of feel or instinct… it remains the case that it is an exceptional step to stay a prosecution it must be done by the application of specific principles to the facts.
Picken says this is a case at...

… a different stage to where we are now.
BA accepts
[Farbey says no one was trying this morning to ask the court to decide the case by feel or instinct]
BA no but what are the facts and what are the principles? We need to look at each of them individually and I will raise...

… the problems this raises if we don’t shortly.
[but first, more case law]

BA - Mr Stein and Mr Molone rely on post-2013 PO bad character to back up their limb 2 arguments. eg [unfulfilled] disclosure obligations to the High Court in 2019.
[goes to case law - which suggest post conviction conduct of a body is not necessarily relevant]

BA we submit there is no force in the argument to extend the abuse of process argument to conduct not only post trial, but beyond conviction or confiscation. The court may have heard some compelling argument. it is years after the convictions the court is considering….

[Picken said it may be relevant to those convictions]
BA it may be, and we would like to see evidence of it if it is. So far we haven’t seen any. We do not concede the exceptionality of the jurisdication in relation to limb 2. The burden is on the appellant to demonstrate limb 2.

BA the PO has conceded in certain cases on limb 1 and limb 2 and many on limb 1, and these were serious failings. But the court should look into where the court is offended by conduct and propriety and that is on the facts. and we submit the court is not being put in a position..

.. to balance the competing factors without time-sensitive analysis.

BA I’d like to address one area TM [first QC to speak for appellants] started with the 1999 issues. He suggested PO knew of Horizon problems and were, in effect reckless. They carried on regardless.

BA in so far as TM spoke about the POTENTIAL for H to malfunction. Only POTENTIAL, we agree. It was that potential that led to the ironing out during the test phase. No SPM was prosecuted during the test phase. The PO was taking great care not to agree acceptance until the...

… issues were resolved. The appellants perceived acceptance issues raised during the test phase. TM has not id’d any that were said not to have been resolved prior to the rollout.
LJH no SPM was prosecuted during the test phase?
BA on the basis of H
LJH is there a doc re that?

BA I am sure we can find one. Prosecutions only began in 2000.
LJH there was a conscious decision that this may be an unreliable system… so we won’t prosecute on that basis
BA no - all I am saying there were no prosecutions during the test phase
LJH was that a conscious decision

BA I am sure we can find out. All I am saying is that we know on the facts there were no prosecutions until the proper operation of the system had been rolled out

BA [now into some bug fixes which were made before the system was rolled out] So as far as PO was concerned, the problems were fixed before it was rolled out. The whole point of a test phase it to identify problems before it went live. It does not mean PO knew or believed...

… there were problems that would come to light 20 years later in the group litigation.

[Justice Farbey asking about a PEAK in the bundle - a PEAK is a reported Horizon error]

[it is dated July 2000. Farbey says there were bugs from then on.]
BA yes but these are Fujitsu documents. the disclosed acceptance documents are about PO being very careful, not reckless. It’s unrealistic that PO should not have been entitled to rely on the assurances...

… it was getting from Fujitsu about issues being fixed.
LJH if that’s a convenient point, shall we delay the rollout of your further submissions until tomorrow?
BA yes.
LJH how long are you going to be tomorrow?
BA it’s not looking good. I will be a substantial part...

… of the morning.
LJH okay everyone has the timetable in mind, but these are important matters.
[court rises]

Okay that’s it from me… I’ll put up a court report on postofficetrial.com asap and then send out a secret email...

… if you’ve found what I’ve been writing useful, and fancy getting on the mailing list or even want to by my forthcoming book on the Horizon IT scandal, please do have a look at the crowdfunding options here:

postofficetrial.com/2021/02/crowdf…

I would be v grateful for your contribution.

Proceedings start tomorrow at 10.30am. I’ll be here.

@threadreaderapp unroll bitte