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.