PAUL MARSHALL. Comerstone Bartisters 2.3 GRAY'S INN SQUARE Gray's INN. LonpoN WCIR JH ‘Tuesday 15% December 2020 BY EMAIL ONLY TO: [email protected],gov.uk Dear Lord Justice Holroyde, Mrs Justice Farbey and Mr Justice Picken, RE: CASE NO. 202001558 B3 AND 40 LINKED CASES: On these appeals, now listed for hearing in March 2021 I represent: 1.1, ‘Tracy Felstead who was charged with theft in 2002 1.2. Janet Skinner who was charged with theft in 2006. 1.3. Seema Misra who was charged with theft in 2008. Each of my clients was imprisoned on the basis of prosecutions brought by, and evidence given to the court by, the Post Office. Their trials, respectively, took place in 2002, 2007 and 2010, Each of my clients have had their rights to a fair hearing within a reasonable time, rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, violatcd. ‘The violation of their fair trial rights is obvious and substantial. ‘Their appeals will not be heard until 19 years, 15 years and 13 years after the dates upon which they were charged Itis salutary that the GCRC would not have made the present s. 9 reference but for the Horizon Issues judgment of Mr Justice Fraser (December 2019) and the Bates group litigation. Mr Justice Fraser himself observed that without that group litigation many of the problems and defects in Horizon that were considered by him “would not have seen the light of day”. ‘There is no equivalent violation of Article 6 rights, in terms of scale of numbers of those involved in these appeals and length of delay, in English legal history. Tracy Felstead’s entire adult life had been blighted by her wrongful conviction in 2002. On 12 November 2020 the Post Olfce, in these appeal proceedings, disclosed to Aria Grace Law a written advice by Mr Simon Clarke, a barrister, dated 15 July 2013 (“the Clarke10, Advice”), The Clarke Advice was provided in response to a specific request by Aria Grace as to why, in August 2013, the Post Office’s main Board had been advised by Bond Dickinson LL? 0 I |: Carcth Jenkins, Mr J the expert witness for the Post Office/Respondent at Mrs Misra’s trial in October 2010. Womble Bond Dickinson, as by then they had become, were solicitors for the Post Office at trial in the Bates group litigation 2016-2019.) nkins had been The Clarke Advice goes a long way to providing an explanation for the reason for it having taken so long for these appeals to be heard. Important facts and information, that obviously ought to have been disclosed to my clients long ago, were withheld from disclosure by the Post Office. The Clarke Advice suggests that, not only were Post Office subpostmasters convicted I 8c 2 fac, in October 2020, largely accepted by the Post Office) but that, from 2013, the Post Office knew that. ‘The delay between then and now suggests that the Post 0+ aa Ms Paula Vennells C.B.E., then managing director of the Post Office, in answer to a Parliamentary question by Mr Mike Weir MP, asked of the government in December 2011, replied to Mr Weir at the request of Mr Edward Davey MP, then Parliamentary Under- Secretary of State for iness Innovation and Skills, stating that: “The Courts have consistently upheld Past Office Ltt’s position that the Horizon system ts accurate and reliable”. ‘That state made after my client Mrs Misra’s trial, in October 2010, at which Mr Jenkins was the key ‘witness who on behalf of the Post Of ent was tested the reliability of Horizon, In the course of the hearing on 18 November 2020 I sought to explain the importance of the Glarke Advice to my clients’ understanding of what had happened to them, and appeared that the Clarke Advice almost certainly had not been considered by the Criminal Cases Review Commission in its investigation from 2015 that led to the present s. 9 reference to the court in June 2020, I was not permitted by the court to develop those submissions. it thas since emerged: 1 ‘That the Post Office, as I had apprehended, did not disclose to the CCRC the Clarke Advice in the course of its investigation that resulted in the present reference (confirmed by Peters & Peters on 30 November 2020) Peters & Peters have said that the CCRC could have asked for the Clarke advice, because it had been mentioned in another document provided to the CCRG in 2015, but it did not do so. 11.2. ‘That the CORG considers that the Clarke Advice may hav i MEE 0 1- Court of Appeal. (Stated by the CCRG in their letter to the court dated 24 November 2020.) 113. Thaton 15 October 2013, Mr Brian Altman QC.’ ‘he Post © ce Clarke Advice and to its conclusions. (Explained by Peters & Peters in a “Disclosure Note in relation14. 16 19, to the context of the ‘Clarke Advice” dated 30 November 2020.) II I bas 10: been disclosed. ‘The court on 3 December 2020 refused an application by Mr Nick Wallis that the Clarke Advice be released to the press, his application being based upon the facts that the Clarke ‘Advice and its substance had been referred to and quoted from in open court on 18 Novernber 2020, I was so acutely concerned by what I read in the Clarke Advice that, on the evening of 17 November 2020, I provided a copy, together with written submissions previously filed with the court for the hearing on 18 November to which it was annexed, to an investigating officer of the Metropolitan Police whom I knew to be investigating the circumstances in which Mr Jenkins had given evidence to the court in 2010 at my cl That investigation is at the instance of the Director of Public Prosecutions following referral by Mr Justice Fraser (albeit Mr Jenkins did not give (direct) evidence at the Horizon Issues trial Mrs Misra’s ti ‘The Clake Advice is concerned with te: EN iy Me-Jeakins I 0 C1 Ws Hinero unaware It ppears tht MJ: cr | Horizon On Wednesday 18 November 2020 Mr Brian Altman Q.C., counsel for the Post Office/Respondent, raised the possibility of contempt of court in connection with th disclosure of the Clarke Advice to a journali Mr Aluman contended for breach ofan implied undertaking of the kind considered by the House of Lords in Harman v Secretary of State for the Home Department [1983] AC 280. The court directed that there be a hearing on 19 November 2020 to further consider the issue of contempt of court by my learned junior. ‘The court said “on the face of it, a document which was disclosed subject to restrictions which, beyond all argument, would prevent it being given to a journalist, appears to have been given to a journalist”. In expressing that view it might appear that the court proceeded upon the presumed correctness of the legal basis for an implied undertaking of the kind contended for by Mr Aluman Q.C., “The transcript of the hearing on 19 November shows that Harman was once again relied upon by Mr Altman Q.G. as foundation for the alleged implied undertaking (and alleged breach) at that hearing. Harman concerns the now codified (and thus statutory) implied undertaking under the Civil Procedure Rules and applies to documents disclosed in civil litigation, not to a prosecutor's duty to disclose to a convicted defendant material that casts, ‘or may cast, doubt upon the safety of their conviction, a class of disclosure covered neither by the Civil Procedure Rules nor by the Criminal Procedure and Investigations Act 1996. ‘The reason that post-conviction disclosure is not covered by implied undertakings of the kind considered by the House of Lords in Harman is that the prosecution's duty in law to give disclosure of material that casts doubt on the safety of a person’s convietion does not depend upon the existence of legal proceedings. ‘The prosecution is bowed to disclose that material in20, 21 22, 23, 2, the interests of the proper administration of justice, whether or not a convicted defendant clects to bring an appeal. The reason is explained by the Supreme Court in Nunn v Chief Constable of Suffolk Police [2015] AC 225. Had the Post Office, as tought to have dc, IIT Clarke Advice fl ER °: Occ that my clicnts could not have then ERE © 2 journalise prima facie would have violated my clients’ Article 10 rights under the ECHR. So there is a requirement to identify in law the basis and scope of any implied obligation of the kind that Mr Altman Q.G., on 18 and 19 November, contended for. ‘This has not, so far as Tam aware, yet been done. ‘That is important, because in any contempt proceedings itis essential, indeed elementary, that it must be shown that the person against whom it is sought to apply the sanction of the law of contempt had sufficient notice of the judgment or order which itis alleged he has disobeyed. ‘The fact that Peters & Peters’ Disclosure Management Document refers to an implied undertaking in law doesn’t make it one. ‘The fact that ex post the hearing on 19 November 2020, at the suggestion of the court, Peters & Peters immediately sought to obtain written, ‘undertakings from solicitors and counsel, with the threat that should such an undertaking not be provided the issue be returned to the court (72. transcript of ruling on 19 November 2020), tends to emphasise the point. In the hearing on the afternoon of 18 November 2020 the court said this to Ms Page: “We want you, in the meantime, please, to do the following: to contact your brother and use your best endeavours to secure from him the return of whatever document you gave him and his assurance that he will not use it oF any copy of it, or the contents of it, because, fo fut it blunt you should not have given itto him, and he has no right to it.” ‘That statement might appear to suggest that it was presumed that Mr Altman Q,C. was correct in identifying the basis of the undertaking, of which he alleged Ms Page to be in breach, to be analogous to Harman v Secretary of State for the Home Department, On 19 November 2020, the correctness of that proposition was directly challenged by Mr Richard Bentwood, counsel for Ms Page. Iwas not involved in, and did not attend, the hearing on 19 November 2020. ‘The outcome of the hearing on 19 November 2020 was that the court invited Mr Brian Altman Q.C. to assist the court in drafting provisional charges for contempt of court against ‘Ms Flora Page, my junior. What had begun as an allegation of possible contempt by the Post Office had been taken over by the court itself: The reason for the court taking over the issue is not altogether clear believe that course to be an unusual course for the court to adopt, in circumstances where the implied undertaking, if it exists as a matter of law, which is yet to be established on authority, isin the nature of a private bilateral undertaking with the Post Office, not an order of or undertaking given to the court itself29. 30. 31 In the course of the hearing on 19 November 2020, an email was received by the court from the Metropolitan Police Service explaining that it had received a copy of the Clarke Advice from me on 17 November 2020. I was provided with a copy of the MPS email of 19 November, following a request by me to the court as to whether I might be permitted to see it, It was provided to me by the court at midday on 30 November 2020, 11 days’ after the hearing. (Mr Altman Q.C. was shown a copy of the email in the course of the hearing.) I see from the email that it refers, incorrectly, to the Clarke Advice having been disclosed to a journalist under the Criminal Procedure and Investigations Act 1996. It was not. ‘During the hearing on 19 November 2020. Mr Altman Q.C. submitted to the court: "".. but the CPIA_ prohibition on the collateral use of dsclasure under section 17 of that Act, breack of wick is an offence under section 18 is mirrored in the common law”, and there is reference for example, to the case of Harman v Secretary of Siate for the Home Department, a cofp of which I have handed i, which makes perfectly clear, ifthe court would Kindly go to the holding atthe bottom of the page, wich is reflected in the speeches: a solicitor, who in the course of discovering in litigation oblained possession of copies of documents belonging to his client's adversary gave an implied undertaking tothe court not to use the copies, nor to alls them to be used for any purpose, other than the proper conduct of the action on behalf of hs client...” ‘The difference from the present circumstances is immediately apparent. ‘The following exchanges took place between the court and Mr Altman Q.C. for the Post Office. “LORD JUSTICE HOLROYDE: But your submission yesterday was that, ‘common law duties do apply. As I understood your submissions at any rate, you would say they are, forall practical purposes, co-extensive with the duties under the legislation where that is applicable. MRALTMAN: Yes. As illustrated pretty closely to the facts of this case by the Harman case. And LORD JUSTICE HOLROYDE: Yes. As indicated yesterday, ‘Mr Aluman, what we would welcome would be assistance as to what our powers are and submissions as to how those powers should be exercised in this particular case, MRALTMAN: Yes. My Lord, on behalf of the Post Office, it is open to the court, we submit, to treat the matter as a civil contempt. It is not, in our submission, at least superficially, a criminal contempt but a civil contempt; and it is open to the court to deal with the matter summarily, ifit so wishes, if the court wishes to deal with the matter as a contempt.32, 34, 36. IFit does, then the next stage would be to formulate the allegation to put to Ms Page whether she admits the allegations formulated; and ifshe does, it is ‘open to the court to treat that as a contempt, ifthe court considers that it does, amount to a.contempt, It may be admitted to be a contempt by Ms Page, in which case the court would not have to make that decision. If the second stage is completed in that way, then the third and final stage ‘would be the issue of sanction, which would involve Mr Bentwood making ‘a plea in mitigation on her behalf, the court to take into account a number of factors, which we could assist the court with, and resolving the matter in that way. LORD JUSTICE HOLROYDE: ‘The range of sanctions being what? MR ALTMAN: ‘The maximum sentence of imprisonment is one of 2 years under section 14 of the Contempt of Court Act 1981.” “The court observed: “Ms Page at that stage helpfully indicated that she had already spoken to her brother, who had assured her that he would destroy the document which had been provided to him and would make no use of its contents.” ‘The destruction of documents is provided for, for example, under the Griminal Procedure and Investigations Act 1996. ‘Ordinarily, this takes place once a contempt has been established (section 18). (On the hearing on 19 November 2020, no reference was made by Mr Altman Q.C., or by the court, to Part 48 of the Griminal Procedure Rules that govern proceedings for contempt of court, ‘Those rules provide detailed safeguards and protections to any person (including an advocate) alleged to be in contempt. This court has repeatedly stressed that committal proceedings are of the utmost seriousness and that it is imperative that the strict procedural rules governing such proceedings must be complied with, see, for example, In the matter of Mursalin [2019] EWCA Civ 1559. More importantly, on 19 November 2020, no reference was made by Mr Altman Q.C. to the invariable requirement in law that in civil contempt proceedings for publication contempt, ‘specific intent is required to be alleged ay ye proved to the criminal standard, Had consideration been given to this requirement - on either 18 or 19 November - events might have taken a different course, In Attorney General v Newspaper Publishing Ple [1997] IWLR 926, 936-7, Lord Bingham CJ observed that both parties had accepted Sir John. ‘Donaldson MR’s formulation as to the mens rea required, i.e. that “the conduct complained of is specifically intended to impede or prejudice the administration of justice” In the case of publication contempt, at least, its settled law that nothing short of specific intent willdo. It remains puzzling to me that, over the course of three days when the issue of contempt was considered by the court, there was no reference at all to the issue of intention. Ass. 1 of the Contempt of Court Act 1981 makes clear, intention is only inelevant to strict liability contempt. In the course of the hearing on 19 November 2020, following receipt of the email from the Metropolitan Police, Lord Justice Holroyde said to Mr Altman Q.C. in connection with formulating provisional charges for contempt:37. 38, 39, 40, 4 42, 43, “do that work [formulation of charge and statement of fact for contempt proceedings) with ‘one oe (othe possibility that there may be charges to be considered against two rather than one”. ‘The “two” is a reference to me. It is surprising to me that that invitation was made, in my absence and when I had not been heard. (On the hearing on 19 November 2020, when no other parties were represented, the court, in order to assist the Post Office in connection with further disclosure intended to be given by the Post Office, invited Mr Altman Q.C. to obtain undertakings from counsel and solicitors to whom the disclosure was to be made that they would deal with the matter in accordance ‘with paragraphs 80 and 81 of Peters & Peters’ Disclosure Management Document and that, in the absence of such an undertaking being given, the matter should be referred back to the court. The undertakings in question take effect in a similar way to an injunction made ex parte without notice. received a copy of the wanscript of the ruling on 19 November 2020 at 5.45 pm on Friday 20 November 2020. read, in the transcript of the ruling, that the court said that it wished to be assisted by me “as soon as practicable” Conscious of my duty to assist the court, I spent the weekend 21-22 November 2020 drafting a letter of explanation to the court, that I finalised and sent shortly after midday on 23 November 2020. Perhaps, in the light of the court’s suggestion to Mr Altman Q.C. that he should have “one cye” to the possibility of drafting provisional contempt charges against me (an invitation that he said he would act upon), and had I taken advice rather than sought as soon as practicable to assist the court, I might not have written my letter of 23 November ‘On Monday 23 November 2020 I received an email from the court enclosing a copy of the order made on 19 November 2020. It was for the first time apparent to me I had been made subject to an order of the court: 42.1, In proceedings to which I am not a party. 42.2. In the course of a hearing at which I was not present. 42.3. In the course of a hearing of which I was given no notice that any issue in connection with my conduct was to be raised, less criticism of my conduct was to be made. 42.4. ‘The first notice of which was given to me 4 days’ after the order was made, 42.5. Where the document founding criticism of my conduct by the court was provided to me 11 days’ after the hearing, and then only upon my specific request. On 24 November 2020 Ms Lund of the Court of Appeal Criminal Division office wrote to me stating: “Lord Justice Holroyde has asked me to thank you for your letter dated 23 November 2020, which you sent me by email. Copies of your letter were forwarded to Lord Justice Holrayde,Mr Justice Picken and Mrs Justice Farbey, allof whom have read it. It would obviously ‘be inappropriate for them io comment upon, or engage in corespondence about, the contents “four letter, which will be considered at the hearing which is likely to take place on Thursday 3 December 2020.” 44, ‘The same day (24 November 2020) the Criminal Cases Review Commission wrote to the court stating “One otter point which I should mention in this letter is that, as the Court will be aware, the Metropolitan Police Service is currently conducting a criminal investigation into allegations of perjury and percerting the course of justice in respect of particular expert witnesses, ome of whom is the subject ofthe Clarke advice. We understand that the parties ‘may wish to consider whether the Clarke advice — ether in whole or in part ~ ought to be disclosed to the MPS incestigaton team. You may already have tha in hand.” 45. [was represented at the hearing on 3 December 2020 as the court, by its order of 19 November 2020, suggested that I might be. 46. Atthe hearing on 3 December 2020, to the best of my knowledge, no consideration was given or reference made by the court to my detailed letter of explanation of 23 November 2020 or to the explanation that I had given to the court at its request for my passing the Clarke Advice to the Metropolitan Police Service on 17 November 2020. ‘The present position 47. OnFriday 11 December 2020 I received a copy of the order made by the court on 3 December 2020, The order provides that “the question of whether any contempt proceedings are to be initiated against Mr Marshall ...and, ifs, whether by the Post Office or bythe Court ofits on inttiatoe, must be adjourned for consideration after the appeals have been concluded”. At the time of writing, the reasons for the court's decision remain to be given. I find it difficult to interpret the direction given on 3 December 2020, given the gravity of contempt proceedings, as other than in the nature of a threat. I am particularly troubled by the fact that the nature of any implied undertaking precluding my communicating the Clarke Advice to the Metropolitan Police Service, for the purpose of the investigation of crime, remains to be clearly identified - despite contempt proceedings having been canvassed over the course of three days, including one full day on which the court was assisted on the issue of contempt of court by three of Her Majesty's Counsel and by four junior counsel. As Vos IJ (as he then was) has said: “The process of committal for contempt is a highly technical one.... But itis highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court” Having carefully and anxiously reviewed the proceedings on the 18 November, 19 November and 3 December 2020, and the terms of the order made on 3 December 2020, I consider that I am inhibited from continuing fearlessly to represent my clients before this court. I am consequently disabled from discharging my professional duty to my clie Accordingly, itis in my clients’ best interests to be represented in these appeals before this court by other counsel. Ihave also been advised that, given my recent remission from metastatic cancer, my continuing participation in these proceedings has become medically significant.‘remain troubled that the court on the one hand has declined to permit the release of the Clarke advice to the press, and, on the other, has intimated possible contempt proceedings, by either the court or the Post Office, against both my learned junior and me, in circumstances where the legal basis for doing so remains undear, Mr Altman Q.C. in the course of the hearing on 19 November 2020 highlighted the unsatisfactory consequence of leaving the position unresolved (transcript page 19) It is most unfortunate for my clients that they are deprived of representation by both counsel of their choice as a consequence of events of 18 - 19 November and 3 December 2020, Tam copying this letter to Mr Brian Altman Q.C.. Yours sincerely, Qari uu Lord Justice Holroyd Mr Justice Picken, Mrs Justice Farbey Royal Courts of Justice ce. MrBrian Altman Q.C,, 2 Bedford Row