Thread by @nickwallis

Good morning and welcome to Day 3 of the Court of Appeal hearing into whether 42 former Subpostmasters should have their convictions quashed after being criminalised by the Post Office. This will be a tweet thread of proceedings, which start at 10.30am. Some housekeeping...

… Everything I tweet from court is a summary and/or paraphrase of what is being said. Nothing is a direct quote unless it is in “direct quotes”.

We have had two explosive days in court so far. On Monday we found out that the Post Office had ordered documents...

… pertaining to discussions about the reliability of Horizon (the Post Office IT system, evidence from which was used to prosecute Subpostmasters) should be shredded:

postofficetrial.com/2021/03/post-o…

Yesterday (Tuesday) we found out who ordered the shredding - it was the Post Office’s

… Head of Security, John Scott:

postofficetrial.com/2021/03/day-2-…

Also yesterday we heard a moving description of what the Post Office did to one appellant, who sadly died last year:

postofficetrial.com/2021/03/dawn-o…

Today will finish the argument over the 39 appellants who the Post Office...

… are not contesting the appeals of on at least on ground, and we will move to the 3 of the 42 appellants whose cases are being contested by the Post Office. I am still not in court, so I better go. Live-tweets, start in 12 minutes…!

Okay I am in position in the over-warm desperately uncomfortable Victorian splendour of Court 4. I deeply regret ever criticising the time I spent covering two trials at the High Court’s Rolls Building. It is a palace of earthly delights in relation to this place. Don’t get me...

… wrong, I’m all for a bit of high-ceilinged wood-panelled gothic stonework. I just don’t want to sit on it for extended periods of time.

Anyway...

… all my work this week is crowdfunded. I am deeply grateful to everyone who has chucked in any amount to the crowdfuding pot over the last three weeks. if you would like to contribute, there are rewards...

… including the secret email and my forthcoming book on the scandal for which I have already confirmed a few insider interviews...

… but the main thing is you are allowing me to make my tweets and reports publicly available to anyone to read for free, and therefore supporting public-interest journalism. The link to find out more is here:

postofficetrial.com/2021/02/crowdf…

Okay we’re about to start...

Judges present - asking about prosecution numbers which the appellants and PO couldn’t agree on yesterday. Matter is in hand.

Also reminder for all to wear masks unless they are speaking.

Sam Stein QC on his feet for the appellants.

SS Mr Altman (PO QC) sought to compare the PO to the CPS. The real difference is tht the CPS might be forgiven for not understaning its own funding arrangements, it’s own accounting systems. It is harded to forgive the PO. It is all about management of accounting systems...

… in fact, that’s what it is - it’s business is to be a channel for money to come in and take out of its business. It is poles apart from the CPS. The reliability of hte Horizon (H) system is at the heart of what it did. Telling also was BA’s description of what happened...

… over 13 years. He admitted it was serious. 13 years of failures of disclosure which has only latterly been accepted by the PO. It goes beyond serious. it is an affront to justice.
[SS goes to the authorities. The authorities is case law which barristers use to back up...

… their points. Courts and judges are guided by case law]

[case about someone who absconded during a trial re drugs and firearms - legal argument about extradition and retrial - and there was an inquiry into who knew what at the National Crime Agency when they promised the Spanish state that if they extradited the man he would get a...

… retrial, in what turns out was a promise with no legal basis]

SS arguing the conduct of the PO POST-conviction IS relevant to the appellants.
[Yesterday BA was saying that something the Post Office did after someone was convicted wasn’t necessarily relevant to their case]
SS post-conviction conduct - if it is relevant to the behaviour...

… of the PO as displayed during a prosecution is relevant to these proceedings

Justice Picken - yes, we’re not trying to work out whether the PO committed a criminal offence, rather if it engaged in abuse of process.

[SS agrees and takes him to another piece of case law]

[There are three judges sitting this week, Lord Justice Holroyde (LJH), Mrs Justice Farbey (JF) and Mr Justice Picken (JP)]

JF we have to give a reasoned jugment so we can make inferences about what happened after an event and apply it to the past, but I wonder if you are making too much of this. We have to make a reasoned judgment on each case.

SS the PO has made the case that Tame [case law]

… puts the bar down on this and closes it down. we disagree. the jurisdiction of abuse of process does need specificty - an example of behaviour this court could take into acccount and infer into others - the Clarke Advices… BA says we’ve provided documentation that...

… proves it was the behaviour of a rogue individual. Yet it is also described as a “common myth” - which suggests more than one individual. We asked for Mr Clarke to be called so we can get to the bottom of what was going on. That never happened. We’ve sought statements from...

… Adam Crozier who ran the PO from 2003 to 2010, Moya Greene who took over as MD of the PO when it was split from Royal Mail. We’ve been told by the PO our questions are irrelevant. It’s difficult to say the PO was caught by surprise. They sat through the evidence that was...

… considered by Mr Justice Fraser. They’ve had ample opportunity to consider it.

JP the relevance of Adam Crozier and Moya Greene is that they were at the top of the tree and would be unable to cast much light on anything

SS we suggested Mr Clarke could explain his decision...

… because the appeal is based upon Fraser J’s judgment we should consider statements from the PO which could offset the judgments of Fraser J.
[we go to Fraser J H Issues judgment (HI)]

SS let’s look at Gareth Jenkins:

par 511: "When the Post Office served their evidence of fact, the claimants had asked the Post Office why there was no statement from Jenkins, ...

… whether Mr Jenkins was available to give evidence, and also whether he was involved as one of a team of what the claimants referred to as the “shadow experts”. This description was challenged by the Post Office, and the question of shadow experts is…

… addressed further at [556] below. No explanation was given for Mr Jenkins’ absence in response to these requests, or in evidence in the trial, although it was confirmed that Mr Jenkins was not one of the team of so-called “shadow experts”.

512. "There the matter might have rested. However, in the Post Office’s written closing submissions, an explanation of sorts was for the first time provided. This was in the context of two matters: firstly, by way of explanation of...

… Mr Godeseth’s evidence, and potentially to downplay its impact; secondly, in relation to the claimants’ complaints about the second hand nature of some of the Post Office’s factual evidence because in…

… large part this had emanated from Mr Jenkins. This explanation by the Post Office included the following passages in its written submissions:...

“144. [The claimants] understandably complain that Mr Jenkins and the other source of Mr Godeseth’s information could have given some of this evidence first hand. However:…"

…

144.1 Taking into account that Mr McLachlan’s evidence specifically addressed things said or done by Mr Jenkins in relation to the Misra trial, Post Office was concerned that the Horizon Issues trial could become an investigation of his role in this and other criminal cases

…

144.2 Moreover, Post Office was conscious that if it only adduced first hand evidence in the trial, it would end up having to call more witnesses than could be accommodated within the trial timetable."

SS says this is an example of the PO engaging in post-conviction behaviour which is worrying. And the reluctance to allow Mr Simon Clarke to come to court and offer his interpretation is similar...

SS we now turn to corporate malfeasance. Let’s look at Fraser J Common Issues judgment 547

"These Post Office factual witnesses appear to maintain this view, notwithstanding the weight of material put to them, and in the face of internal...

Post Office documents - obtained in disclosure for this litigation - that suggest the view may not be correct. Whether that view is in law and fact justified can only finally be resolved after subsequent trials. But they remain...

… steadfastly committed, in their collective psyche, to the Post Office party view, despite such steps having been taken as amendments to the Camelot software using the Ping fix, and the contents of some of their own internal documents that suggest...

… to the contrary. They give me the impression that they simply cannot allow themselves to consider the possibility that the Post Office may be wrong, as the consequences of doing so are too significant to contemplate."

[SS moves on to Angela van den Bogerd and her colleague Mr Beal]

548 "Unless I state to the contrary, I would only accept the evidence of Mrs Van den Bogerd and Mr Beal in controversial areas of fact in issue in this Common Issue trial ...

… if these are clearly and uncontrovertibly corroborated by contemporaneous documents.”

SS "This is the judicial equivalent of not trusting them to tell him if the sky is blue outside without going outside to check” [DIRECT QUOTE!]

[correction - remove the first outside]

SS says this whole affair "This takes us in the direction of corporate cover up and… in the conduct of the Post Office itself, corporate shame"

Lisa Busch QC (LB) is on her feet. She represents three appellants (Tracy F, Seema M, Janet S) - BA says each case turns on its own facts and the implications he sought to draw from that is that we should look at each case separately...

… but they share a common nexus, an approach the CCRC took and they were right to do so. Secondly, picking up on a dialogue between BA and JP on the CCRC. M’lords will recall BA sought to suggest that the CCRC Statement of Reasons (SoR) to suggest the driving force...

…. behind hte CCRC’s conclusions were focused on 2010 and is therefore less relevant to events before 2010. You CAN infer from future events past behaviour, particularly in this case where there is a consistent course of conduct on the part of the PO. You can form a picture...

… of the PO’s conduct by looking at it in the round.

LB - also BA’s analysis of the CCRC’s SoC is not accurate. We see the CCRC considers it arguable that the PO’s approach to criminal prosecutinos has been undermined by Fraser J’s conclusions on Legacy Horizon (lH)...

… secondly it’s apparent the CCRC was not just looking at 2010, but the whole period. Secondly if one looks at par 124 of the CCRC’s SoR it talks about looking at everything “in the round” says the Fraser J conclusoins are no less important to limb 2 consideration of….

… abuse of process.
[The CCRC referred all cases before the court on two limbs/grounds - both abuse of process - G1 was a failure of disclosure G2 was “affront to the public conscience - the PO is resisting G2 in all but 4 of the 42 cases]

LB the entirety of the two Fraser J jusgments were taken into consideration looking at the whole 1999 - 2013 period and the CCRC took the view that the same findings applied to G1 and G2 absue. They are not making an error of elision. The CCRC is implicitly saying is that...

… the facts of this case which apply to G1 also apply to G2. G2 abuse implicates the court. "Over a 13 year period the Post Office routinely misled the criminal courts."

LB - BA said knowledge is an additional part of G2, the CCRC says the facts which are good for G1 are good for G2. I will come to knowledge… but to stick with this - one can draw inferences from 2010 looking back over course of conduct. The CCRC’s focus on 2010 is not...

… more than an afterthought - it plainly thought there was more than enough already to carry both G1 and G2 without 2010.

LB - I adopt Tim Moloney QC (TM)’s submission re Fujitsu (F). BA appeared to be suggesting that F may have known about bugs but kept it from the PO...

LB - first at the very least from reading Fraser J that the PO was put on notice of the probability that there was a problem with the H system. Given that we are talking about criminal prosecutions, this cast a duty upon them to bottom that issue out before going anywhere….

… "also F had a very much vested interest in problems with H not coming to light.”

So the PO had some reason to treat F’s advice with a degree of caution. Also for no other reason that the PO were put on notice, Subpostmasters (SPMs) were routinely TELLING them of...

… problems with H. It defies belief the PO would routinely ignore what their trusted employees were telling them and adopted a position of blind faith in H. if they wilfully blinded themselves to the knowledge they could have had, it doesn’t help them to say oh we didn’t know...

LJH are we about to embark on your point 4?

LB point 3 -
1 - fact senstive
2 - CCRC
3 - knowledge

the HI judgment par 234: "some of the internal Post Office documents that were put to her [Angela van den Bogerd] were, in my judgment, very damaging to the Post Office’s case...

… on the Horizon Issues. In an “Extracts from Lessons Learned Log” document of 11 November 2015, which was heavily redacted (including the redaction of single words), one entry under “issues identified” was as follows regarding the Post Office:...

""Failure to be open and honest when issues arise eg roll out of Horizon, HNGx migration issues/issues affecting few branches not seemingly publicised.””

LB this supports TM’s point about the early days...

LB the PO itself was saying it was failing to be "open and honest". The PO itself!

JP is this a reference to the original rollout or Ho?

LB yes or there would not be a distinction between rollout and HNGx

LB goes to par 367 of the HI judgment. Evidence from Torstein Godeseth - a F engineer who Fraser J found “extremely helpful”

par 367: " When it was put to Mr Godeseth that this showed that on not all occasions were SPMs...

…. advised of impacts on their branch accounts of particular problems, he said that was “a fair inference”. An inference is a common sense conclusion, and I agree with Mr Godeseth that it is indeed fair to draw that inference. He did however then add “I think I would say that

… Post Office were well aware of this and I would argue that it's a Post Office decision whether or not to tell a subpostmaster.” This shows that Mr Godeseth was not immune from arguing the case or making suggestions not supported by the evidence….

… Nothing was produced by either side to show that the SPM in this case was told. Certainly the person at Fujitsu who wrote “….it’s best that the branch is not advised” cannot have shared Mr Godeseth’s view at the time….

…. Mr Godeseth did however also say, in my judgment again importantly, that “in the background to this there was a dialogue with [the] Post Office” and he agreed with counsel who put to him that the “Post Office would have been aware of what was being done by Fujitsu”.

LB so the PO did certainly have an awareness of what F were up to.

[LB takes us back to the 2010 document and what Fraser J has to say about it]

" I find this to be a most disturbing document in the context of this group litigation. It is a 2010 document...

…. and issues between the Post Office and many SPMs concerning the accuracy of Horizon had, for Legacy Horizon, gone on for a decade (2000 to 2010) and these continued under Horizon Online (introduced in 2010)."

[LB goes to 433. - same judgment]

The two references – one to “ongoing legal cases”, the second to a BBC documentary [mine, as it turns out] – show that there was a distinct sensitivity within both the Post Office and Fujitsu about...

… keeping this information to themselves in order to avoid a “loss of confidence” in Horizon and the integrity of its data. 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. The solution adopted was the issuing of TCs to the relevant branches...

… There was no publicity given to the SPMs at the time about the presence of this software bug in Horizon."

LB The iniquity, the iniquity, of this approach as regards the SPMs is apparent and one sees the genuine distress of SPMs who are being accused with no evidence of stealing from the PO and the PO know there is a bug and they deliberately withheld that information from them...

… and I submit the PO’s behaviour with its contractors should be taken into acount.

LB by definition if the PO was in a position to notify SPMs of a bug it follows they were aware of it.

LJH reads from par 442 "Those same points all lead to the same conclusion...

… in my judgment, namely that the Post Office ought to have notified, at the very least, all those SPMs whose branch accounts had been impacted by this bug that this had occurred, and that it had occurred as a result of a software bug.”

LJH asks if LB thinks all...

… SPMs should be informed of bugs or just those whose branches might be affected.

LB all of them. The PO was very secretive, we know this. These SPMS were convicted on a g1 and were never told their convictions may be unsafe on the grounds of the unreliability of H...

LB - the CCRC referrals only came in the light of the HI judgment

LB so far as the role of the court with regard to G2 abuses it is at the discretion of the court as to what it takes into account - and that includes conduct towards SPMs including transparency.

LB don’t forget one has to inject a level of humanity into these proceedings - quite apart from the v moving testimony we heard yesterday there is the personal reputation of these people at stake. Not telling them the source of the problems for so many years is utterly...

… reprehensible in my submission.

[JP weighs in on callender sq bug and notes that even when PO found a bug it never told the SPMs what the issue was - does LB rely on that too]

LB I do my lord. - BA wants us to give a year by year blow by blow account of each case...

… I adopt TM’s point that the PO is in a far better position to do this as they have all the information, but I think it is perfectly fine to look at this in the round.

LB on a point of constructive knowledge re civil law concepts raised yesterday BA. We are all happy...

… to be bound by the conclusions of Fraser J in respect of civil concepts.

LB this is not just criminal law - it’s constitutional law issue about the relationship between the judiciary and the executive

JP who is the executive?

LB the PO insofar as it is an emanation of the

… state.

[LB moves on to a note written by Post Office senior lawyer Jarnail Singh which notes]

“we were able to destroy 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.”

LB suggests this does not demonstrate an openness to accepting possible errors with Horizon.

LB goes on to point out written PO witness statements put before the courts were designed to gloss over problems.

[rebooting. Tweetdeck is dying]

LB convictions were not just secured on the back of unreliable data, they actively misled the courts… that is more than enough… BA seems to think that G2 abuse is a hyper category G1 and seems to think there was something that needed to be drawn out for G2. That’s not right...

… G2 pertains to the courts and th PO, G1 is the relationship between the SPM and the PO

JP it’s the degradatin of the criminal justice system

LB is it my Lord

LB there are various ways of formulating G2 - protecting the integrity of the justice system and PUBLIC FAITH in the integrity of the justice system is maintained. BA appeared to say that even if the PO was guilty of gross negligence this was not G2 abuse. That’s plainly wrong.

[LB goes to case law - Bennett]
[In Bundle B, bundle fans]

[LB is making point about constituional responsibility. ]

[Bary Smith stands up for mr Parekh]

BS looking at the seriousness of these, the court should give greater scrutiny to the PO as a private prosecutor.

BS the PO had a contractual right to get material from F for prosecutions. This is not information held by a genuine thiird party but a contractor of the PO. In any trial the PO had the benefit of an evidential presumptioni that H was robust and so the SPMs were reliant...

… on the PO to disclose any thing which undermined that presumption.

BS - on what the PO knew, there is Frasr J’s finding on the Common Issues (CI) judgment:

" Horizon was introduced in 2000, and from then onwards unexplained discrepancies and losses began to be reported by SPMs. Internal documents obtained in this litigation show that some personnel within the Post Office believed at the time that at least some of these were ...

… caused by Horizon.”

BS and so when looking at who knew what when I rely on that finding. Even if that is wrong the PO ought to have known what was going on.

[BS helping LJH with case law reference which makes it clear a private prosecutor is under more scrutiny and should be scrutinised more]

BS has finished. another barrister I don’t know is on her feet for the appellants (might be TM’s junior)

It is! Kate O’Raghallaigh (KO)

KO is talking about the four cases which the PO is conceding on both G2 and say that they represent an extreme case of G2 abuse. There is no difference betweeen expressly evidenced (eg conditional plea arrangement) and when it is not clear...

… [sorry IS clear] that the same forces are at work.

KO what we would like to do is deal with the personal features of the Hudgells appellants [Hudgells are solicitors with most of the appellants TM and KO are the barristers instructed by Hudgells]

KO talking at great speed about the about the long service of many of their appellants, their financial dificulties, their prison sentences, their inability to find work
Hudgells have 30 appellants - 29 of them are not opposed by the PO on one or both grounds. Wendy Cousins...

… will be dealt with later. She is opposed on both grounds.

KO pointing out how many appellants kept detailed notes of their shortfalls - how they went back years. Some didn’t expressly raise H in their interivews because they had no idea what was the cause. Many thought...

… it was their fault. They trusted the PO and when told there was nothing wrong with H they blamed themselves.

KO in some cases data was disclosed, sometimes it was requested but not disclosed, many made dozens of calls to the H helpdesk reporting losses...

KO confiscation and compensation orders were made in 6 of our cases

KO on Monday we took the court to a handful of examples which pointed to what we say is the institutional failing at work - we invite the court to read our notices on all 30, but there are some examples...

… we’d like to take you to which makes out G1 and due to their nature make out G2. The first case is that of Julian Wilson - pleaded guilty in 2009 to alleged offences in 2007 and 2008

[Julian died in 2016 - I wrote about him here: …whatyouwishfornickwallis.blogspot.com/2016/08/julian…]

KO "his appeal is maintained by his wife Karen who I think is watching us this morning. Having pleaded guilty in 2009 he agreed a basis of the plea - in his interview he had raised problems with H - he was told there was nothing wrong with the system."

KO "He gave a detailed account in interview which included raising a concern about remote access"

he had raised a query that people could access his branch. he said this in interview - he pleaded guilty on the basis that...

… the losses ocurred as either losses or system errors I did not steal any of the money or get any financial gain from it.

KO the PO has accepted that forcing people to sign agreements that H was okay as a plea bargain condition was G2 abuse, but we see here that...

… with Julian’s case the issue of errors was raised and yet he’s not conceded on G2.

We say this is an example of the working relationship between G1 and G2 and the distinction relied on by the PO on the facts is weak, with respect.

[Just been told this case has been mentioned in PMQs.]

JP let me understand about the confiscation order, if I may.

KO yes

JP in Mr Wilson’s case the confiscation order was getting on for £28K was that the grand total of the shortfalls alleged.

KO yes

JP for the purposes of the offence of False accounting….

KO his pleas were two offences of fraud

JP thank you

KO moves on to Nicholas Clark - we see a basis of plea accepted by the PO. It is clear that the agreed basis includes NC saying there were shortfalls and losses which forced him to falsify accounts...

… and when he found earlier shortfalls he was forced to make them good which is how the falsification came about. There is a shortfall which is inexplicable and there is a failure to investigate. In the cases of NC and Julian Wilson there are two exampels...

… of a similar problem, which is the basis of the concessions on G2 but not on others.

KO Now to Lisa Brennan and David Yates. Where an appellant is in close proximity to the rollout, the duty to investigate H has special importance

KO - Lisa Brennan was one of 5 appellants tried by a jury and convicted. V close to the rollout where investigative duty was of paramount importance. in 2003 David Yates pleaded guilty to offences undated on the schedule - hwoever itis clear enough from the Witness...

… Statements that they date back to being close to when H was rolled out. There was one feature of DY’s case which I’d like to bring to your attention…. which I have now miraculously managed to close on my computer… [she’s found it]
...

KO we can see H was installed on 11 July 2000... there were 79 calls made by DY due to various problems including a balancing issue. That’s an early example of the egregious nature of the failure to investigate.

KO Onto David Hedges… he writes to his contract manager telling him there’s an ongoing shortage at the branch. We would submit on any rational objective view he is explaining the difficulties he’s having, candidly, and says he’s been having them for some time - even tho...

… this letter is 2005 it is close enough to the rollout to make the failure to investigate egregious.

KO onto Siobhan Sayer - raised issue of balancing and cash shortages, some data was retrieved but it was never analysed.

JP you are essentially saying wherever there is a concession on G1 re an unexplained shortfall, it should be conceded on G2

KO yes I have 2 more examples left. Kashmir Gill who pleaded guilty in 2010 in relation to discrepancies in 2009 (read her son’s story about this...

… here: “This was systematic abuse” postofficetrial.com/2018/12/a-form…)

KO Kashmir was charged with false, [she goes to an internal document] but once she’d repaid. The PO decide not to proceed with the theft charge based on that and her age.

KO we say consider this alongside the...

… concession in Jo Hamiltons case where the pO accept that the theft charge was being used as a tool to recover money. In Ms Gills case it looks similar. The theft charge is being abandoned because it has served its purpose.

KO onto Damian Owen [final example fromKO]

[Damian was one of the rare people convicted at jury trial]

KO DO said his branch had migrated to Ho and the accounts balanced. During the mirgration a discreapncy of £700 was found - he was told it would work itself out.

KO - two weeks later there was a branch audit [and it was thousands out] during his interview he said he was aware H was notorious for balance anomalies and he denied culpability. so at his trial H was in issue.

LJH - DO says he got a shock because he’d gone from balancing fine one week to being £20K out. Did that come up at trial?

KO I don’t know but I’ll check.

[court rises for lunch]

[checks emails]

Attn Depp v NGN followers - the judgment on Johnny Depp’s application to appeal the libel judgment against him will be handed down tomorrow at 10am.

I hope to be in court to get a copy before high-tailing it to Court 4 for the resumption of this appeal hearing.

A reminder that if the application is rejected, the Nicol judgment stands and that is the end of the road on this matter.

If the application is allowed, there will be an appeal hearing at some stage in the future whereby Mr Depp’s lawyers will argue for a retrial.

The judgment will also go up, shortly after 10am here: judiciary.uk

But I will of course do my best to get my hands on it first and tweet the decision and any other interesting matters arising as close to 10am as possible.

Thank you for your continued support in funding me to do all this (without the crowdfunded cash I would simply not be here).

If you haven’t donated and found either my Depp tweets or Post Office reports useful, please consider contributing here:

store29806256.company.site

Right. Lunch. WH Smiths meal deal today, if anyone’s interested.

Plugged in my laptop at the beginning of the lunch hour all smug.

Just realised I didn’t switch the power socket on.

Oops. 38% Need at least 70% to last the afternoon.

Of course there are no power sockets in court. Very vulgar.

[we’re back in court 4 for the Subpostmasters appeal]

[Kate O’Raghallaigh for 30 appellants talking about Damian Owen in particular. DO had raised the issue of H unreliability in his interview and therefore as KO says it was in play at his trial]

KO I draw the court’s attention to an internal PO email whereby his case lawyer (within the PO) was Juliet McFarlane. She is dicussing a H error in 2010. He was tried in 2011. She had been in possession of this email for a year. There was no disclosure. We submit that...

… animating the G1 abuse is the G2 abuse here.

KO we say there is no need for an individual analysis for all the cases. There is enough in common between G1 and g2 to make that unnecessary.

[Lisa Bush QC back on her feet.]

LB in the appendix to our three clients skeletons...

… we set up a timeline. Tracy Felstead has been waiting nearly 20 years to get her conviction overturned. J Skinner and Seema Misra have been waiting more than 10 years. There was a long period of non-disclosure between their trial and full disclosure. The appellants had...

… criminal convictions hanging over them with all that entails. In my submission the PO has misconstrued G2 abuse as a hyper G1 abuse - they seem to think it needs something more than G1. There is more, but this goes to conduct in relation to the court.

JP do you adopt KO’s...

… submissions?

LB I do

KO including if there’s an unexplained shortfall case it’s an automatic G2?

LB indeed

LB dealing first with Tracy Felstead (TF) - theft of £11K - when formally interviewed she said no comment throughout, when asked if she wanted to say anything...

.. she said she didn’t steal anything. No ARQ data was retrieved in her case. The PO accepts there was G1 abuse - it accepts H data might be relevant

JP might?

BA I wrote that let me explain - might because we couldn’t rule it out but we culdn’t confirm it due to a lack...

… of any paperwork one way or another.

LB it is conceded on G1 - there’s no evidence of investigation or data retrieval - I accept there is no paperwork one way or the other. I think the court has enough to give the benefit of the doubt.

LB above and beyond pure circumstantial evidence there is no evidence of any theft taking place. at all. the only basis on which the appellants could be and were convicted was on H evidence which we submit the PO was aware of its unreliability. Misleading the court relevant to G2

LB - TF was investigated in 2001 and we can look at TM’s submissions re the problems with H before its rollout - so at the very least even if the PO didn’t know what it knew by 2010 it should have been alert to it as to the reliability of H enough to render a prosecution unsafe.

… it’s a situation which calls out for an investigation into the H system. As and when it did become aware of problems with H it was incumbent on the PO to tell her.

LJH are you making a point that even if the PO didn’t know as much in 2001 as it did later, when it did, it should have gone back to previously convicted people and notified them

LB it is my submission. ther are practicalities involved - it’s not simply the matter of the...

… appellants having to labour under their conviction. it’s also the courts - having convicted them on what they thought was evidence of guilt, the PO also should have notified the COURTS. The silence of the years until the high court litigation compounds the abuse.

JF so the number of times it happens is an aggravating feature in assisting you to reach the threshold of g2?

LB yes m’lady. and if we go to the aggravating factors - the relative youth of miss felstead - she was born in 1982 and she was on holiday when the loss happened...

… it is a situation crying out for g2

LB onto Mrs Misra - charged with 6 counts of False Accounting (FA) and one count of theft after audit in 2008. Total of £74K missing. To explain the situation when shortfalls found in their accounts the first thing they alighted on was...

… possible staff theft. They ended up making unfounded allegations against colleagues as a result of unfounded allegations against them. SM pleaded guilty to six counts of false account, but PO went ahead with theft charge. She raised unreliability of H at her trial...

… she did have ARQ data disclosed, which Professor McLachlan as independent expert raised a series of hypotheses, most were rejected by Gareth Jenkins, but not all. SM convicted on 21 Oct 2010. Before her trial the PO met to discuss the RAP bug - this was not disclosed to...

… her defence team. The PO accepts it was an unexplained shortfall case, although ARQ data was released it was not properly examined, there was no other evidence of theft, the defendant had tried to stop the trial 3 times on abuse of process grounds, etc etc - and so won’t...

… contest on G1. We say G2 is supported due to the fact the defence team was misled, so too was the court.

LB finally Janet Skinner (JS) - charged with theft and FA in 2007 - she pleaded guilty to one count of FA, theft lay on file. PO says H evidence was essential...

… not sure ARQ reached defence, no effort to corroborated theft, no evidence of an actual gap, no investigation of Helpline calls - so PO does accept g1 abuse but not G2. This was a fairly typical case as far as g1 casse are concerned - I make the same submissions as with...

… my other clients.

LB - Obviously SM’s case is particularly stark becaue of the involvement of Gareth Jenkins and his failure to disclosue the whole truth and nothing but the truth.
[LB goes to case law on likely reaction of the court where untrue evidence is given]

LB going to Second Sight’s Case Review Report into TF (SS were the independent investigators who looked into 100+ cases for the PO in 2013 - 2015) which notes that PO were arguing in 2014 that TF was guilty of theft - still implying no problem with H, that it was robust.

LB the submission that H was robust was maintained right up to the high Court litigation. Even when the issues was directly raised re TF in 2014 to come clearn, they didn’t do so. They tried to settle the mediation scheme on a false basis.

LJH asking about wording of PO documents in which PO says that when cash balances are artificialily inflated it is “impossible” to investigate the source of any error as accounts have been manipulated.

LB says it made it more difficult, but speculates it still would be….

…. possible because ARQ data checks every keystroke.

[we are onto Janet Skinner and the SS CRR report into her in which SS complains the PO will not give SS access to the PO’s internal files so it’s hard for them to complete their investigation]

LB we say the PO continued to mislead throughout the mediation scheme.

LB onto Seema Misra - the issues raised - £76K missing, power failures, hardware issues, poor training etc etc. SM sought audit data. SM says figures in her H system can be changed without her authority...

… we now know that to be true, but it had not come to light at the time. SM raised a 2006 computer error, but the PO said it was a minor internal communicatiosn error - so they’re still not telling the truth.

LB notes that whilst she was being trained and watched by...

… her trainer losses were being generated, even though he said she was doing nothing wrong. then again with the trainer there she called the helpline and their instructions caused the losses to double, and the trainer said it was her responsibility to make it good and wait...

for a transaction correction to be sent down the line

[which many SPMs found would never come]

[LB has finished, Sam Stein QC for five appellants on his feet]

SS can we provide more assistant re G1 and G2 for our clients - the extent of failures of disclosure is the starting point. the number of times of that faulure is number 2 over the number of years is number 3...

… and number 4 is the YEARS of denials which folllowed right the way through to 2019. Those 4 poinsts whe you add them together from a single failreu of disclosure into the manifest demonstration of limb 2 abuse across all appellants. it is aggravated by the fact ALL are of...

… POSITIVE. good character, many of whom had worked in their communities for decades.

That is not one of the 4 categories, but it is an aggravativng factor.

SS we will deal with our clients cases chronologically back to Pamela Lock in 2001

SS on Pamela Lock (PL) convicte dnot long after H was put in place, one of the effects is that there is no material on her case. One of the effects of the pO’s failings has been that we are now in 2021 having to look back in time because of the denials and failures the papers...

… don’t exist. an effect of this behaviour has denied advocates judges and courts with material they should have. YOU are denied the oppo to investigate the background. An aggravating feature. The overall position of the PO is...

… the PO accepts there ewas a signifciant and material riks of branch accounts being affected by bugs errors and defects. it’s accept that the PO failed to declare to SPM AND THE COURTS the correct position with regard to reliability of the H system. SPMS were not given...

… an update - no Weekly Bug Alert - the latest bug affecting H. The effect of this on people of many years service (goes to p780 of bundle c) “I did not find the helpline useful. I was told to accept discrepancies and put back shortfalls and wait to report them as they might...

… resolved. I either paid in or PO deducted in excess of £6K from my own money. I did not want to plead guilty but I felt I had no choice. I told them I had taken the money to pay off a loan, which was not true, but I was told they would drop the charges, which turned out...

… not to be true.”

These peopel were bewildered by what was going on.

[SS goes to Pamela Lock case]

SS - PL is the earliest case where there are no papers. PL was indicted on a single count of FA in Nov 2001. It is a case whereby the PO accepts G1 abuse of process.

… she had spent 26 years working in the PO with her husband. She complained in Jan 2000 when the H system was installed she got a single hour of training. She says when the shortfalls arose she would ring the helpline, they would make suggestions which didn’t work, as a result..

… this woman who had given so amny years service with her husband felt the need to change the accounts in order to keep on trading. She was found with a discrepancy of £26K. She denied taking it abut was charged with FA. It is an unexplained shortfall case - no proof...

.. of actual loss, no investigation.

the effect on the appellant was devastating - she lost her good character and her good standing in the commuinty. She and her husband fell into debt. They had to sell their home. They had to rely on the state for social housing.

… she suffered depression and took medication. She believes what happened to her affected her husband leading to stress ulcers, he died at the age of 67. It caused family difficulties. She could not provide parental support to her daughter and son. PL is one of the...

… oldest cases, left unresolved until addressed by Fraser J in 2019 and then admitted by the PO.

LJH asks about PL’s calls to the helpline. Do your instructions indicate whether this featured in the trial papers?

SS I don’t know. I will come back to you with an answer.

[SS makes a generic point about lots of evidence calling the helpline with problems which weren’t reported up]

SS to Mr Peter Holmes - he said in interview had no idea why H had a discrepancy. He had put around £200 of his own money into the account. PH was a manager...

… not an SPM. His role as a manager was discussed in his interview - during this interview process which took place on 19 Sep 2008 he is asked a number of questions by Rob Daley who is conducting the interview. PH is asked who the SPM is “Sunil Khan” what does he do in the...

… office “Nothing” is he on H “no” does he serve customers “no”… so he’s an SPM in name only “yes”

[digging a hole with his honesty]

He then describes all his responsibilities. he is in exactly the same position as an SPM and he covers a shortfall. He says “H let us down"

SS PH’s later years were spent at home whilst his wife worked long hours long after her retirement. He wasn’t allowed to do community work because of his commitment.
He died from a brain tumor in the years beforehand he was depressed and withdrawn. He wanted as a principle...

to prove his innocence and that is why his wife Marion wanted us to take this case on. It is hard not to be affected by their situation. She told us:

“All he wanted for the rest of his life was...

… t0 prove that he was inncoent and have it reported in the paper that he was inncocnet.”

SS "Thankfully the local paper that report his conviction has reported his appeal is not challenged."

[SS onto Scott Darlington’s case]

SS if the truth had been known about SD’s case an application would be made to exclude tainted evidence or stay the proecution. It was unexplained shortfall case, no proof of actual loss. H was inventing money rather than account for it.

SS SD’s good name was destroyed in the community - it left him unable to work for three years, left him suffering from anxiety - he was involved in trying to get recognition for the problems with H - joined group litigation. I put the PO’s long denial of problems as ...

… aggravating factor in this abuse.

[SS onto Rubbina Shaheen]

SS RS had large shortfalls from the start of her tenure, which the pO intervened with and she was told to pay £8K. Later she had. £42K shortfall which she says might have been a remming error (cash in/out system)

SS RS used to work for the DWP she was an energetic hard-working person. She was sent to prison for 12 month. Her business had to be auctioned off, her husband struggled with his mental health. after her release the couple lived in a van for 6 months. Mr (?) found thme in a...

… van and gave them a roof over their heads. She now sufferes from poor health and needs dialysis.

She waited 10 years. It’s ruined her life. In summary my Lord we’ve seen fro the appellants that we represent - fewer than my learned friends - we’ve seen what’s happened...

… to them, and the sheer repetition of the PO’s behaviour over so long is an aggravating factor for arguing this into limb 2.

[SS finishes - Barry Smith on his fee for Mr Parekh]

BS - Vijay Parekh was a man of outstanding good character. He had to resign his position...

… volunteering for the Gujarati community. He has suffered financially. His conviction led to an acute sense of shame. His personal friendships were affected, so when the court comes to consider as to whether the PO has brough the court into disrepute, they might want to...

… bear this in mind.

BS - Re disclosure. His defence statement is replicated in his grounds in bundle A. VP denies intention to gain, not guilty to theft and on 17 Feb 2010 he took issue with the taking of the money, he denies dishonesty and states some of the £74K may have...

… been down to H faults and he disputed the missing amount. There was a duty on the prosecutor to investigate and disclose. Given H was essential to his conviction, but here there was a clear defence statement. Then consider the PO’s concessions - the PO accepts...

… this was an unexplained shortfall. There was a possibility but no confirmation of ARQ data release. VP raised issues of shortfalls and "there was no investigation of his account or the root cause of the shortfalls”

To not investigate a reasonable line of inquiry are clear...

… derelictions of a prosecutors duty. If this is part of a systematic pattern of conduct and they are serious - that is G2 abuse.

I submit the dereliction of duty was either deliberate or at least conscious on the part of the prosecutor. There are 3 docs I submit.

The Ismay report… p26… [this is the report by Rod Ismay which suggests the dangers of investigating H from a PR perspsective]
The PO considered the merits of an independent review. it could give ohters the same confidence we have but.. any investigation would need to be...

… disclosed in court, but if there were any perception we doubted our own systems we would have to stay all prosecutions and look into all historic prosecutions. This predated VP’s case - the fact PO knew it would affect prosecution cases.

BS now goes to the RAP bug in 2010...

… it’s quoted in Fraser J where the PO discusses the impact on legal cases. The PO was on notice of these issues before VP was charged.
There is also the email sent to Rob Wilson (head of PO criminal law) in which Alan SImpson raises issues about bugs having an impact on...

… prosecutions. VP had not yet come to trial.

The PO was on notice to H issues and did not investigate them.

LJH and the Mir Wilson is the same as the one the Ismay report was copied to.

BA it is

LJH we know from the currently disputed figures that there was roughly one trial a week, so it seems as if he was just next week’s trial

BS I accept that when interviewed VP there should have been an investigation into him - but there was no investigation. This was not a case where the conduct of the PO can be excused by any of the conduct of the accused. Serious derelictions of prosecutorial duties.

BS I therefore submit that G2 is made to in this case.

[he sits down. Mr Altman is on his feet]

BA - six general rather than particular observatinos which we submit apply to them all.

BA PO has accepted both Fraser J judgments and that much is clear in the refs whic have been made to p1 of the SPMs notices. 2ndly we are not disputing any of Fraser J
3rd - the CCRC have conducted the investigations in these cases leading to the refs the CCRC has made...

… PO has not sought to go behind those investigations to do its own.
Fourth this could undermine Fraser J which PO has no desire to do
5th - what we have done is embark on a post-conviction disclosure exercise almost unprecedented in size which has allowed the appellants...

… to make the arguemtns they are making.
6th we as counsel have placed before the court points which we believe are relevant to G2 abuse…

… but given the very clear public interest is that the determination whether or not these prosecutions amount to an affront to the public conscience is a matter for this court to judge.

[and so concludes what was due to take two days at the end of day three]
[now onto housekeeping and plans for tomorrow. the next one or two days will be spent hearing the three contested appellants]

[All the silks and judges now on the point of agreeing that this all might get done tomorrow]

[judge confirms that judgment will be reserved.
LJH we are conscious it’s difficult for those oberving remotely, but what has not been in anyway affected is the outstandingly high quality of submissions from all to date. we look forward to more tomorrow.

[court rises until 10.30am tomorrow)

Thanks for reading all this. I’ll get a court report up asap and send out a secret email shortly after. If you have found any of this useful, please do feel free to investigate the crowdfunding I am doing in...

… order to be here.

store29806256.company.site

I’m off to recharge my laptop batteyr (it’s on 9%)

A reminder I’ll be hoping to be the first to tweet the result of the Depp v NGN appeal application at 10am tomorrow before running from Court 71 to Court 4 for tomorrow’s Post Office hearing.

Thanks for the kind comments and sory I can’t reply to every one.

Laters. N

@threadreaderapp unroll