Thread by @nickwallis

We are at the Royal Courts of Justice to find out whether 42 Subpostmasters prosecuted by the Post Office will have their criminal convictions quashed. Thread follows...

After a Court Of Appeal hearing in March, three judges will hand down their ruling. 39 appellants are not being opposed by the Post Office.

There were lots of Subpostmasters (and cameras) outside court this morning. It is a glorious day, but...

... it's hard for the appellants to sum up their mood. Many told me they havent slept. Some have been crying yet because many are seeing each other for the first time in a while there are smiles.

The main court is Court 4 but there are two overspill courts - 5 and 7. I sincerely hope the sound system functions properly. I am one of two journalists allowed in Court 4. The other is @samiotobin from the Press Association who is already in situ. Proceeding start at 10.30am...

Important warning: please be aware that everything I tweet is a SUMMARY of proceedings using PARAPHRASES. IT IS NOT VERBATIM unless it is in “direct quotes”.

If this is new to you, please have a look at postofficetrial.com where I have been documenting what’s been going on in this scandal for a while now.

I would also like to thank everyone who has donated to my crowdfunding - without your support I would not be here.

Judges are here.

Lord Justice Holroyde: Not reading whole judgment out - it is very lengthy. We will read out a summary and then formally hand it down. Then the judgment will be posted on judiciary.co.uk and bailii.org

When have handed it down there will be a limited number

… of paper copies for counsel and other. Court clerk will arrange distribution. Pls be patient during this process and need to maintain social distancing. We appreciate counsel have not seen a draft. After we have handed it down, we will rise for 30 minutes so counsel can...

… see it. When we return to court we will ask counsel if they wish to raise any consequential issues. If there are contentious issues it may not be practical to do more than timetable written submissions.

Now to summary - it is NOT part of the reasons for our decision.

The court has heard the appeals of 42 SPMs between 2003 and 2013 there were prosecuted by their employer Post Office Ltd and convicted of crimes of dishonesty. The CCRC referred all these cases to this court. Key q is whether these prosecution was unsafe. the court has to ...

.. consider the reliability of the Horizon IT system in their branches. The SPMs say they were prosecuted on the basis H was reliable when in fact it was not.
We have taken into account the two civil case judgments brought by 555 claimants re Horizon. We summarise the most...

… important of the findings of fact made by Mr Justice Fraser and those which the CCRC took on.

Two grounds for referral:

1 it was not possible for any trial to be fair
2 in accordance with Mr Justice Fraser’s findings, it was an affront to the public concsience.

We looked at the grounds for appeal even from those who pleaded guilty.

PO has accepted that in many cases the lack of investigation in 39 cases it has not resisted appeals on ground 1. It has resisted appeals on G2 except in 4 cases which it says has particular...

… features which distinguish it from the rest.
We have looked at other docs not available to Mr Justice Fraser. eg Advice given to PO by the barrister Simon Clarke.
We gave consideration to the details submissions from counsel which we have considered in full.

In relation to G1 - the concession by PO were rightly and properly made. There were significant problems with Horizon. An apparent shortfall did not reflect missing cash or stock, but was caused by one of the bugs errors or defect.

The PO knew there were serious issues...

… surrounding the reliability of H. It had a duty to consider this. It did not adequately disclose problems with or about Horizon in any of the cases at any point during that period. It consistently asserted H was robust and reliable. Nor was any attempt made to investigate...

… claims from their SPMs.
There was a strong reluctance for any other SPMs to know about these problems. "They effectively steamroll over any SPM who sought to challenge its accuracy."

"In short PO as prosecutor brought serious criminal charges on the basis of H data and by failing to discharge its duties it prevented them from having a fair trial on the issue of whether that data was reliable”

As a matter of law there is a case for G2 to be made out. We refer to the human costs and consequeences. All the SPMs were persons of good character. V sadly 3 are now deceased. We conclude PO’s fai;ings were so egregious as to make the prosecution of any of the H cases as an...

… affront to the conscience of the court.

PO sought to effectively reverse the burden of proof. It said that H showed an incontrovertible loss and made SPMs prove that it wasn’t and then denied them the opportunity for doing so.

Defendants were prosecuted convicted and sentenced on the basis cash must be missing when in fact there was no confidenance in the system that it could be.

In each of the Horizon related cases - the 39 - the appellants succeed in G1 AND G2. All the convictions are unsafe.

In the remaining 3 cases we are not convinced H data was central to their cases so their convictions are safe. The appeals of Neelam Hussain, Stanley Fell and Wendy Cousins therefore fail.

LJH is now reading out the names of the 39 appellants whose convictions are quashed: Seema Misra, Wendy Buffrey, Barry Capon, Vijay Parek, Dawn O’Connell (deceased), Carl Page, William Graham, Jo Hamilton, Nicholas Clark, Tahir Mahmood, Ian Warren, Harjinder Butoy...

… Scott Darlington etc

All are allowed on both grounds. Their respective convictions are quashed.

Court rises for 30 minutes.

There is sobbing in the public gallery.

There are SPMs here who have suffered for a long time. Their names are now clear. There’s no one to hold or hug them.

Seema Misra gave a little thumbs up as she left court. I have the summary as just read out. I will tweet it here so you have it VERBATIM

JOSEPHINE HAMILTON and OTHERS v POST OFFICE LIMITED [2021] EWCA Crim 577
23rd April, 2021
SUMMARY
Judges: Lord Justice Holroyde, Mr Justice Picken and Mrs Justice Farbey DBE

1. The court has heard the appeals of 42 former sub-postmasters and sub-postmistresses (“SPMs”). Between 2003 and 2013 they were prosecuted by their employer Post Office Limited (“POL”), and were convicted of crimes of dishonesty...

… The Criminal Cases Review Commission (“CCRC”) referred all their cases to this court.

2. In each case, the principal questions for the court are whether the prosecution was an abuse of the process of the court and whether the convictions are unsafe. The court has had to consider issues as to the reliability of a computerised accounting system,

“Horizon”, which was in use in branch post offices during the relevant period. The SPMs submit, in essence, that they were prosecuted and convicted on the basis that Horizon was reliable, when in fact it was not.

3. In the judgment which we today hand down, we refer to two of the judgments given in 2019 by Mr Justice Fraser (“Fraser J”) in civil proceedings brought in the High Court by claimants representing hundreds of SPMs. We summarise the relevant features of the

Horizon system [paras 9-18], the concerns about it which were reported by SPMs from an early stage, and POL’s insistence for many years that it was reliable [paras 19-26].

4. We summarise the most important of the findings of fact which Fraser J made [paras 33-50]. Those findings of fact were considered by the CCRC, whose work in relation to these appeals we summarise and commend [paras 52-59].

5. Each of the appellants has argued 2 grounds of appeal: Ground 1, that the reliability of Horizon data was essential to the prosecution and, in the light of all the evidence including Fraser J’s findings in the High Court, it was not possible for the trial process

to be fair (“category 1 abuse”); and Ground 2, that the evidence, together with Fraser J’s findings, shows that it was an affront to the public conscience for the appellants to face prosecution (“category 2 abuse”).

6. We summarise the relevant legal principles which we have followed [paras 60-69] and explain why it is possible for appellants to bring these appeals even though some pleaded guilty when prosecuted many years ago.

7. POL has accepted that where the reliability of Horizon data was essential to the prosecution and conviction of an appellant, and where Fraser J’s findings showed that there was inadequate investigation and/or that full and accurate disclosure was not

made, the conviction may be held by this court to be unsafe on grounds amounting to category 1 abuse. For that reason, with the exception of three appeals which it says raise different issues, POL has not resisted the appeals on Ground 1. It has however

resisted the appeals on Ground 2, except in four cases which it says have particular features which distinguish them from the rest [paras 70-78].

8. We refer to documents which have been disclosed in these appeals, but did not form part of the evidence before Fraser J. In particular we refer [paras 82-90] to written advice given to POL on two occasions in 2013 by a barrister Simon Clarke, and [paras

91-94] to other material indicating the approach taken by at least some POL personnel to the prosecution of these and similar cases.
9. We give a summary [paras 95-119] of the detailed submissions of counsel, which we have considered in full.

10. We then set out [paras 120-138] our conclusions which apply to all the “Horizon cases”: cases in which the reliability of Horizon data was essential to the prosecution, and in which there was no independent evidence of an actual loss from the account at a

branch post office, as opposed to a Horizon-generated shortage.
11. In relation to Ground 1, we conclude that the concessions made by POL were rightly and properly made. As Fraser J found, throughout the relevant period there were

significant problems with Horizon, which gave rise to a material risk that an apparent shortfall in the accounts of a branch post office did not in fact reflect missing cash or stock, but was caused by one of the bugs, errors or defects in Horizon.

12. We conclude [para 121] that POL knew there were serious issues about the reliability of Horizon. It had a clear duty to investigate all reasonable lines of enquiry, to consider disclosure and to make disclosure to the appellants of anything which might reasonably

be considered to undermine its case. Yet it does not appear that POL adequately considered or made relevant disclosure of problems with or concerns about Horizon in any of the cases at any point during that period. On the contrary, it consistently

asserted that Horizon was robust and reliable. Nor does it appear that any attempt was made to investigate the assertions of SPMs that there must be a problem with Horizon. The consistent failure of POL to be open and honest about the issues affecting Horizon

can in our view only be explained by a strong reluctance to say or do anything which might lead to other SPMs knowing about those issues. Those concerned with prosecutions of SPMs clearly wished to be able to maintain the assertion that Horizon

data was accurate, and effectively steamrolled over any SPM who sought to challenge its accuracy.
13. We go on to say [para 124] that in the “Horizon cases”, there was no basis for the

prosecution if the Horizon data was not reliable. POL’s failures of investigation and disclosure prevented the appellants from challenging, or challenging effectively, the reliability of the data. In short, POL as prosecutor brought serious criminal charges

against the SPMs on the basis of Horizon data, and by failing to discharge its duties it prevented them from having a fair trial on the issue of whether that data was reliable.
14. In relation to Ground 2, we rule [paras 127-128] that as a matter of law, the same acts

and omissions may provide a basis for a finding of both of the categories of abuse of process. We then set out [paras 129-136] the considerations relevant to whether that is the position in the “Horizon cases”. We refer [para 132] to the human costs and

consequences of the prosecutions in those cases. All of the SPMs were persons of previous good character. Very sadly, three are now deceased.
15. We conclude [para 137] that POL’s failures of investigation and disclosure were so

egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court. By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the

burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred. Denied any disclosure of material

capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion the asserted reliability of Horizon was, on the face of it, reinforced.

Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.

16. In each of the “Horizon cases”, therefore, the appellants succeed on both Ground 1 and Ground 2. We summarise the facts of the 39 individual cases [paras 140-356], concluding that all the convictions are unsafe.

17. In each of the three remaining cases, the central issue is whether the reliability of Horizon data was essential to the prosecution case. We set out the relevant facts and

circumstances of each of the cases [paras 357-446] and conclude in each case that the reliability of Horizon data was not essential to the prosecution case and that the convictions are safe.

18. Accordingly, and for the reasons given in detail in the judgment:
i. The appeals of Wendy Cousins, Stanley Fell and Neelam Hussain fail and are
dismissed.

ii. The appeals of Josephine Hamilton, Hughie Thomas, Allison Henderson, Alison
Hall, Gail Ward, Julian Wilson (deceased), Jacqueline McDonald, Tracy Felstead, Janet Skinner, Scott Darlington, Seema Misra, Della Robinson, Khayyam Ishaq, David Hedges, Peter Holmes (deceased),

Rubina Shaheen, Damien Owen, Mohammed Rasul, Wendy Buffrey, Kashmir Gill, Barry Capon, Vijay Parekh, Lynette Hutchings, Dawn O’Connell (deceased),

Carl Page, Lisa Brennan, William Graham, Siobhan Sayer, Tim Burgess, Pauline Thomson, Nicholas Clark, Margery Williams, Tahir Mahmood, Ian Warren, David Yates,

Harjinder Butoy, Gillian Howard, David Blakey and Pamela Lock are allowed on both Grounds. All of their respective convictions are quashed.

So that was what was just said in Court. It is the exec summary NOT the judgment. Am not going to dive into the judgment and pull selective paragraphs out.

Clarke advice 1, in which the barrister Simon Clarke told Post Office that a Fujitsu employee Gareth Jenkins had not told the courts about bugs in the Horizon system:

"Mr Clarke advised that Mr Jenkins had failed to comply with the duties of an expert witness and should not be asked to provide expert evidence in any future prosecution. We are aware that there is an issue as to whether Mr Jenkins had been used by POL as..

… an independent expert witness, a role which he could not fulfil for the simple reason that he was an employee of Fujitsu. We do not think it necessary to say anything about that issue, because whilst it may be important in other contexts, it does not affect our...

… consideration of POL’s breach of its disclosure obligations. That is because the following conclusions expressed by Mr Clarke are equally applicable whether Mr Jenkins prepared his statements as an independent expert or as an employee of Fujitsu

with particular knowledge of Horizon:

“- Notwithstanding that the failure is that of [Mr Jenkins] and, arguably, of Fujitsu Services Ltd, being his employer, this failure has a profound effect upon POL and POL...

… prosecutions, not least because by reason of [Mr] Jenkins’ failure, material which should have been disclosed to defendants was not disclosed, thereby placing POL in breach...

…. of their duty as a prosecutor.”

Given that SPMs had been complaining about Horizon for well over a decade, we are bound to say that we find it extraordinary that it was necessary for Mr Clarke to advise in those terms...

… We commend him for expressing himself as clearly and firmly as he did. But it should not have been necessary for him to have to give such basic advice to a prosecuting authority about its duty in respect of disclosure.”

Okay now on to Clarke Advice 2. This was written...

… after the Post Office Head of Security told people to shred documents relating to problems with Horizon.

"Mr Clarke then set out the relevant provisions governing disclosure. He emphasised the seriousness of any attempt to abrogate the...

… duty to record and retain material, observing that a decision to do so may well amount to a conspiracy to pervert the course of justice.”

"Again, we commend the firmness and clarity of Mr Clarke’s advice. That he should have had to give it is, if anything...

…. even more extraordinary than the fact that he needed to write his earlier advice. The need to give it suggests there was a culture, amongst at least some in positions of responsibility within POL, of seeking to avoid legal...

… obligations when fulfilment of those obligations would be inconvenient and/or costly to POL."

"The consistent failure of POL to be open and honest about the issues affecting Horizon can in our view only be explained by a strong reluctance to say or do anything which might lead to other...

… SPMs knowing about those issues. Those concerned with prosecutions of SPMs clearly wished to be able to maintain the assertion that Horizon data was accurate, and effectively steamrolled over any SPM who sought to challenge its accuracy."

"In short, POL as prosecutor brought serious criminal charges against the SPMs on the basis of Horizon data, and by its failures to discharge its clear duties it prevented them from having a fair trial on the issue of whether that data was reliable."

"The whole conduct of the prosecutions was based upon the constant assertion that the Horizon data was reliable and that the money must have been stolen, or at least a shortfall dishonestly concealed. The appellants were denied the material...

…. which could have been used to question that assertion. They were, moreover, in the very difficult position of being charged with offences of dishonesty committed in breach of their employer’s trust. They are likely to have been advised that...

… imprisonment is very often imposed for such offences, and that the mitigation which would be available to them if they pleaded guilty could therefore be of particular importance. Many may well have felt that they had no real alternative but to plead...

… guilty on the most favourable basis which could be agreed with POL.
126. In those circumstances, we are satisfied that a fair trial was not possible in any of the “Horizon cases” and that Ground 1 accordingly succeeds in each of those cases."

Onto Ground 2:

"First, we reiterate that POL deliberately chose not to comply with its obligations in circumstances in which its prosecution of an SPM depended on the reliability of Horizon data. It did so against a background of asserting that SPMs were liable to make...

… good all losses and could lose their employment if they did not do so. It did so despite the fact that POL itself had selected the SPMs as suitable persons to hold their position of trust."

"As we have seen, in internal documents relating to at least some cases, an SPM who attributed a shortfall to a system error was dismissed as “jumping on the Horizon bandwagon”. These were very serious failures by POL to fulfil its obligations as a prosecutor."

"We are driven to the conclusion that throughout the period covered by these prosecutions POL’s approach to investigation and disclosure was influenced by what was in the interests of POL, rather than by what the law required."

"POL’s failings of investigation and disclosure (in Ms Busch’s phrase) “directly implicate the courts”. If the full picture had been disclosed, as it should have been, none of these prosecutions would have taken the course it did before the Crown Court…."

"… No judge would have been placed in the unhappy position of learning – as some judges (or retired judges) will do if they read this judgment – that they unwittingly sentenced a person who had been prevented by the prosecutor from having a fair trial."

"In those circumstances, the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court."

ENDS

That was selective pars from the judgment. I’ll post the full judgment to postofficetrial.com later today.

The judges have returned to court to see if there are any submissions on the back of the judgment. There are none so far except costs requests.

Costs for the appellants travel to be hear today, not their legal costs.

I suspect the Subpostmasters will soon be heading outside the RCJ for a press conference or individual interviews.

So it’s all over bar the shouting. 39 convictions quashed at the Court of Appeal on a single day. I don’t think that’s happened before. 6 Subpostmasters’ convictions were quashed on 11 Dec last year:

postofficetrial.com/2020/12/first-…

bringing the total to 45 so far...

LJH expresses his thanks to the advocates and those behind them - to the lawyer and officials in the crim appeals office and to the officers of the court and associates who have successfully managed proceedings. we would particularly emphasise to those for whom court...

.. proceedings may be unfamiliar. They were complicated cases and issues for a remarkably large number of of appellants.

Court rises. It is all over. Time to go outside and see what the Subpostmasters and their lawyers have to say!

Live tweeting will stop now as I will be conducting broadcast interviews, but I will take some pics and post them later. I will also write a full report up on postofficetrial.com

My work here is entirely crowdfunded. If you want to make a donation and/or put in for a pre-sale copy of my forthcoming book on this scandal, the link is here:

postofficetrial.com/2021/02/crowdf…

Thanks for all the kind tweets. Sorry I can’t respond to them all.

Right then...