Friday’s announcement by the Post Office that they would contact 540 additional former subpostmasters and staff whom POL successfully prosecuted over the years and who may now see their convictions overturned is down to the fact that the Appeal Court decided on the 23rd of April that the convictions before them that day were an affront to the public conscience. That means they should never have been prosecuted in the first place.
The consequences of that decision not only provide hope for these additional convicted people but also ensures that Malicious Prosecution Claims against POL cannot be challenged by them in court. This adds millions to the eventual claims but it requires an explanation why that is so.
The application of the law is best left to the legal profession but they cannot proceed if they are not instructed to do so by their clients. The clients rely on the advice of their legal teams to help them to decide whether or not to proceed and it is up to the legal teams to explain the consequences of their ultimate decision.
Last year the CCRC decided to refer the convictions of 49 former subpostmasters back to the court of appeal which started a process of legal action leading to the decision handed down by the court a few weeks ago. Each appellant was free to choose their own legal representative and three ladies, Seema Misra, Janet Skinner and Tracy Felstead chose to appoint Nick Gould from Aria Grace as their solicitor who in turn instructed barristers Flora Page and Paul Marshall to act for them. It is worthy to point out that all three, Nick, Flora and Paul offered to assist the 3 ladies pro bono (free of charge) such was their concern about the obvious miscarriage of justice before them.
Once the CCRC had submitted their referral document to the CoA, POL stepped forward and provided their own rebuttal in which they accepted ground 1 abuse of process in all but 3 cases but they also objected to ground 2 in 42 of them. By not challenging the CCRC referrals on ground 1 it was almost certain that those appellants would have their convictions overturned by the Appeal Court and that without any challenge to the lack of ground 2 those appellants would have their convictions overturned at the hearing of the court in November last year.
Therefore the most obvious consequence of challenging G2 was that there would be a significant delay in the Appeal Court deciding on the safety of the appellants convictions and this turned out to be the case with the decision only handed down some 4 months later. There was also of course the risk that the court would not find for G2 and therefore the delay would have been pointless. As Alan Bates of the JFSA pointed out to me quite rightly, I am not a claimant, I have no concept of the pain and suffering those affected by this scandal have gone through, and therefore can never be in a position to offer an opinion on what the appellants must do. That put me in a difficult position last October when I was asked to sit in on a zoom call with Paul and Flora and the ladies to hear the discussion on whether or not to challenge Ground 2.
I apologise for telling this part of the story from my perspective, what the ladies thought at the time is far more important, but it is a firsthand account of what transpired that day. I was invited to attend only because I had been providing support to Seema and her husband Davinder, trying hard not to make it sound like advice or an opinion. I had some knowledge of the background to abuse of process and the two categories but I was certainly not fully aware of the consequences of having one and not both awarded.
During the meeting Paul and Flora explained everything very clearly. The merits of fighting G2 and being successful and the consequences of the ladies losing their challenge. I will lay these out below but the memory of my thoughts once the meeting had ended is(are?) very clear – I was confused as to whether or not Flora and Paul wanted Seema to fight the G2 case or not. That indicates to me that they provided very unbiased advice and any suggestion that they encouraged the ladies to challenge G2 is disgraceful.
After the meeting, Seema, Davinder and I discussed the options and I must admit it was difficult not to suggest that they fought for G2 even though it meant a delay to the convictions being overturned for all not just Seema. To wait for so long to have justice served and then being asked to wait for at least another 3 months reminded me of what Smuts Ngonyama once told me in South Africa and I wrote about in a blog post here some time ago. How could I suggest that they should wait a little longer?
It is testament to the hatred the ladies feel towards POL that all three independently decided to instruct Paul and Flora to proceed with challenging G2. What happened next was not a consequence any of us had predicted, with so much bitterness among the other claimants directed at the 3 ladies and even I was contacted to try and persuade them to change their minds (which I did not attempt). I truly hope that that bitterness can now be set aside and that the wonderful consequences of winning G2 for the original appellants as well as the 540 on Friday can be appreciated.
The difference between G1 and G2
I trust Flora will not mind if I publish an extract from the email she sent me after the meeting and I should point out that this was for my information only and I asked for it because I had not formed an opinion during the meeting and was still considering what had been said :
Things which are not pros or cons because they are not affected by category 2 abuse
– the convictions, which should be overturned anyway because of category 1 abuse
– the ability to claim against Fujitsu
– costs, because appellants will not face costs in the Court of Appeal
Pros which will come if we win on category 2 abuse
– There will be a public judgment saying not only that Seema’s conviction is overturned, but that she never should have been prosecuted, and that the Post Office’s behaviour was disgraceful
– This will strengthen her hand going into negotiations on a malicious prosecution claim
– The post office will not get to say that their conduct was merely mistaken or unfortunate (which they otherwise will do, both publicly and in the context of the inquiry and future malicious prosecution claims)
– They will also not get to defend a malicious prosecution claim on the basis that Seema failed to argue that the prosecution was improper when she had the chance In the Court of Appeal
– The hundreds of others who have been wrongly convicted will likely have their cases sped up, and will have a lot to thank her for!
Con which will come if we lose the category 2 abuse argument
– this will strengthen the Post Office’s hand in a malicious prosecution negotiation
Con which will happen anyway
– there will be delay while the Court of Appeal hears and decides argument. It isn’t clear how long the delay may be, but we should be given a better idea at the hearing in November.
The pros for fighting for G2 put forward by Flora have now all come to pass. Most significantly on Friday as clearly the process of clearing the names of hundreds of others has well and truly sped up.
But there is more to this. We have to remember that POL defended against G2 being awarded vigorously and that requires a great deal of discussion and perhaps investigation as to why they did so.
It is worthwhile remembering that Seema, Tracy and Janet decided to proceed with the challenge to G2 based on the information provided to them, but it was the efforts and skill of Paul and Flora that produced the result.
The same goes for POL. It was POL who made the decision to proceed with fighting G2 and it was their legal team that failed. Why did POL decide to fight in the face of what was known to both parties at the time? More importantly why did POL decide to fight in the face of what only they knew at the time? It was only after the decision was made to challenge G2 that Paul and Flora, through discovery, found the now infamous Clarke Advices which nearly destroyed their careers as a result. POL knew about these documents and had made a conscious and deliberate decision not to disclose the contents to Seema many years ago when they should have as suggested by their own council. That is a matter for the courts and the legal professions’ regulatory bodies to investigate in due course but the fact of the matter is that POL knew if the Clarke Advices were made public then there would be no possible chance that the Appeal Court would not find for G2.
As far back as January 2019, before the Horizon trial started (but after the common issues trial had been decided in favour mostly of the JFSA), POL were preparing for the worst outcome and setting aside millions of pounds for an eventual settlement. They entered into settlement negotiations with the JFSA before the decision of the Horizon trial was handed down and now the settlement agreement shows us that even then in late 2019 they were laying the groundwork to try and prevent massive claims for Malicious Prosecution. Remembering of course that at that time the CCRC had not yet referred the cases back to the Appeal Court.
Clause 7.3.5 from that agreement now starts to make sense:
7.3.5 In the event the conviction is overturned ….. the Defendant will provide that convicted claimant with an apology which reflects the basis on which the conviction was overturned.
Compare that to the prescience of Flora Page when she stated:
The post office will not get to say that their conduct was merely mistaken or unfortunate (which they otherwise will do, both publicly and in the context of the inquiry and future malicious prosecution claims)
POL pretty much knew then that the convictions would be returned to the Appeal Court and that they knew they could not challenge most of them. However they could challenge Malicious Prosecution claims. This scandal is a set of extremely unusual legal issues that have never come before a court before but Malicious Prosecution has and these are extremely difficult claims to win. A long time ago I researched this topic and at one point got in touch with a leading firm of solicitors just to find out what they thought. They actually said that in the hypothetical circumstances I put forward they wouldn’t even consider taking on the claim because a) the ‘person’ had been found guilty by a jury and b) the prosecution presented a case based on what they believed to be true at the time.
Ground 2 removes these 2 burdens because it determines that the appellant should not have been prosecuted in the first place (I am straying into making legal opinion here and if I have got it wrong sorry and I stand to be corrected). There is plenty of evidence, since the settlement agreement and even during the trials themselves, that POL were laying the groundwork to be able to show at a later stage (Malicious Prosecution claims) that they believed at the time that Horizon was robust and reliable. The fact is that many people working in the network including POL employees and Subpostmasters alike, were persuaded that this was the case but only through disinformation spread by those in the know who knew that Horizon was far, very far, from being classed as robust.
So it seems that POL were never fighting to win, they were fighting to save money. They weren’t/aren’t concerned about justice and proper compensation for the unfortunate hundreds whose lives they have ruined only about money and protecting the reputations and freedom of those complicit in the scandal.
There are many questions to be asked and answered but a key one is “who are POL?”. We use the collective to describe an organisation full of employees who knew for certain that they were in the wrong about Horizon from day one and the collective also describes the myriad of legal representatives they have instructed over the years who have followed their instructions apparently motivated by the bottomless pit of money POL were prepared to spend rather than moral and ethical responsibility to those who suffered most. Not to forget the Civil Servants who have been behind this all and approving it each step of the way.
What is worrying is that that collective, despite changes in the top management and removal of those that will be offered up as scapegoats in due course, is still operating as they have always done, motivated by money to defend the indefensible.
Just why did POL defend G2??
Tracy, Janet, Seema, Paul, Flora and Nick Gould all deserve enormous amounts of credit for seeing this through. The stresses and strains over the last few months for all concerned have been incredible and the further vindication of their decision to challenge ground 2 on Friday is I hope some small reward for all they have done . It would be particularly pleasant for them to receive some acknowledgement from the legal teams that were totally against the route they chose to take and now seem to be taking the spotlight for doing so themselves.