I cannot, by any stretch of my rather vivid imagination, envisage the dilemma faced by Justice Fraser over whether or not he should recuse himself. Whatever he decides he is clearly establishing a precedent for future Group Litigation Order trials where the claim is spread over several trials. The most relevant point is that in this case there are to be 4 trials set out at the beginning of the process and agreed by both parties in a particular sequence so that the decisions from the preceding trials can be taken into account when determining the next. That by definition requires a biased approach.
Major discussion points arising from yesterday include the fact that the decision to proceed with the recusal application was taken at board level by POL as well as the fact that POL will not ask for the Common Issues trial to be rerun but will ask for the Horizon trial to be started afresh under a new judge if one is appointed.
A common phrase running through the recusal application hearing yesterday was:
“Whether the fair-minded and informed observer, having considered the facts, would conclude ….”
I am merely an observer, I think I am fair minded but POL would certainly not agree with that. Informed? Well I have kept up to date with what has been presented in court thanks to the efforts of the redoubtable journalist Nick Wallis but I am no legal eagle and I think the adjective ‘informed’ has more to do with legal prowess than information gathering.
However, apply the same phrase to the board members of POL and consider the action they have taken. Let us assume they are fair minded people, and that they can readily rely on being well informed by one of the most expensive QCs in the country, Lord Grabiner who surely attended the Board meeting to advise them of the facts that they should consider.
The POL board have come to a completely different conclusion than I have.
- Judge Fraser has not made any decision on the Horizon trial.
- The decision of the first trial stands (subject to appeal)
- Therefore there has been no opportunity for any alleged Bias to have any effect on what has transpired in court so far.
- Overwhelming evidence has been produced in the Horizon trial to indicate to ANY fair minded individual that Horizon has errors in it and that they have caused subpostmaster losses in the past.
- In any rerun of the trial the same evidence will be produced. A recusal has no effect.
- As a former subpostmaster, a campaigner for the claimants and someone who has seen at first hand the effect of Horizon errors and the way Post Office Ltd deal with them as well as apparently one of the very few people who have studied the transcript of the Misra trial in depth, I can say with some conviction that POL are going to lose not only the Horizon trial but the Breach and Causation trial that will follow. There can be NO DOUBT WHATSOEVER about the outcome REGARDLESS OF WHICH JUDGE HEARS THE TRIALS. Bias can have no effect and it would be particulary unjust and unusual if ANY Judge in the land on contemplating the behaviour of POL as a company and of its witnesses would not come to the same conclusions that Justice Fraser may or may not have reached already.
The POL Board of course do not have the insight into these matters that I have because they have made no attempt to find out for themselves but relied on advice and information from the very people who got them into this mess in the first place and whose incompetence is on display every day the trial sits.
I could also say that about the POL Legal team as well. I can’t imagine what is going on in the background there because they have the same problem in that they are reliant on the incompetence of POL to provide them with the evidence they need to win the case (they can look but they won’t find any)
So I have no idea why they chose to go down the recusal route although I have speculated about it. Justice Fraser as an incredible decision to make but I think in the long run whatever he chooses to do will have no impact on the outcome at all.
What the POL board though will have to do now is to explain to the likes of me in Freedom of Information requests, the Government Minister in charge although she sounds as if she is totally out of her depth (a here today and gone tomorrow politician), the media, the interested select committees and sooner or later the National Audit Office and the Police where exactly all the money is coming from to pay for this extravagant and now totally unnecessary trial. If they for one minute think interest in this is going to wane then think again.
When this is all over and the claimants have won, it is safe to say that the reputations of many if not all of the PO Board members who have elected to continue pursuing this lost cause using presumably public funds will be damaged beyond repair. Idiots all.
problemswithpol 
This is spooky. Your summary of yesterdays hearing virtually matches my own. I wrote the following before I had read your blog post.
It was an intense day in Court yesterday. The recusal application sought to plunge a knife into the heart of the way Group litigation is managed in this Country.
I had the feeling that case law was being made right before our very eyes. Indeed as was pointed out by Patrick Green there is no case law that assists a recusal application in a GLO situation.
The accusation against Fraser J is that his written Judgement in the Common Issues Trial used language and referred to matters that were not proper to be dealt with in the Common Issue trial in such frequency that a fair minded well informed observer could come to no other conclusion then that the Judge was bias and had already made his mind up about the Post Office guilt so as to put the PO at a disadvantage during the remaining trials.
Frazer J had crossed a subjective and invisible line.
It is important to note that the basis of the application to recuse was the lesser reason of “apparent bias”
This is difficult to prove as it really is in the mind of the beholder. The law requires that the Judge has to use the test of what would a well informed observer say?
Lord Grabiner took the Judge word by word through his first Judgement citing comments the Judge had made that he claims should not have formed part of the written Judgement.
But when you examine what was being highlighted it was comments in the main about certain people within the Post Office and the NFSP.
So in my view this application was all about damaged ego’s and was brought from a perspective of “sour grapes”
When you enter a Group Litigation you have to expect that as Judgements are handed down against you that your position within the future hearings will get weaker and weaker.
Each stage is carefully managed to give the losing side the opportunity to quit before moving on to the next trial.
To try and sack the Judge because of a negative Judgement in the first hearing on such subjective grounds as apparent bias it is really clutching at straws and if successful will plunge a knife into the way GLO’s are dealt with in the future.
There is no Judicial Guidance for Judges to refer to about how far to go with the wording of their Judgements so that subsequent trials can be heard free from any claims of apparent bias.
I would have thought simply losing the first trail would be enough for any embittered litigant to claim “Infamy, Infamy the Judge has got it in for me”
If you mislead the Court with your evidence in Trial 1 and you appear as a witness in Trial 2 or even 3 and 4 you shouldn’t be surprised if the Court treats your further evidence with a high degree of suspicion. It’s the very nature of the GLO process.
Asking a Judge to be aware of an invisible line of apparent bias based on something that is subjective is nigh on impossible if the Judge is to give each trial the full force of Justice. It is also contrary to the spirit in which GLO’s using one Judge were developed.
I seem to be in a minority but I was not impressed by Lord Grabiner he was being highly selective with passages he used from the first Judgement and he didn’t even know when his client had issued their instruction to make a recusal application and he didn’t even know for how many days Trial 2 had been running. By his own admission he was thrown into this process at the last moment. He was under stress, most of his submission was given with his face getting redder and redder. Sign of rising blood pressure.
He does though have a reputation as being a very good polisher of turds.
Patrick Green was in a difficult position but he did his best to try and assist the Judge with the mechanisms to use to assess what is apparent bias.
It’s up to Fraser J now. I will make a call and say he will not recuse himself, being a former Royal Marine he will not flinch or be persuaded by such tactics that were on display yesterday.
Even if he does recuse himself Trial 2 will be started again from the beginning but what was said in the first Trial 2’s transcripts will be preserved and the witnesses can be cross examined based on their previous testimony if they deviate from their original evidence and cross examination.
So what is the point of all this?
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Thankyou so much for your summary’s . They are so important to the victims like me to keap going and believe justice will be done! I am no legal boffin so these view points are essential for us novices. Once again Thankyou very much.
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Hi,
As always your emails keep me going- I wonder if John Le Carre at 87 would like this material? Better than Tinker Taylor Solider Spy! The group are saying that LG earnings would be £100.000 as £6000 per hour- speechless if this is correct. Again thank you – I’m determined not to sit in a corner and rock with a straight jacket on!!!
Chin is still up!
Karen
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