Case No: B3202001558

IN THE COURT OF APPEAL

CRIMINAL DIVISION
The Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17 December 2020

Before:

LORD JUSTICE HOLROYDE

MRS JUSTICE FARBEY

MR JUSTICE PICKEN

Between:

REGINA

- and -
HAMILTON AND OTHERS

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MR T MOLONEY QC and MS KATE O'RAGHALLAIGH (instructed by Hudgell

Solicitors); MS L BUSCH QC and DR FOWLES; MR ORRETT; MR SAXBY; and
MR SMITH appeared on behalf of the Appellants

MR B ALTMAN QC and MS Z JOHNSON QC appeared on behalf of the Crown

Proceedings
Crown Copyright©

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 Thursday, 17 December 2020

LORD JUSTICE HOLROYDE: Yes, Mr Altman.

MR ALTMAN: My Lord, shall I first of all introduce counsel present today?

LORD JUSTICE HOLROYDE: Yes.

MR ALTMAN: Attending remotely, on behalf of the Post Office, with me, Ms Johnson,
and Mr Baker today; on behalf of the 30 appellants represented by Hudgell
Solicitors, Mr Moloney and Ms O'Raghallaigh; for Mr Darlington, Mr Fell(?),
Mr Holmes and Ms Shaheen, Mr Orrett(?), remotely (Mr Stein, I understand
would have been here; unhappily, he's unwell today and so absent); for Mr Page,
Mr Saxby(?); for Mr Parekh, Mr Smith; for Mrs Misra, Ms Skinner and
Ms Felstead, Ms Busch, who is present in court, and Dr Fowles, who is appearing
remotely, her junior; and, my Lord, the advocate to the court is Mr Mably.

LORD JUSTICE HOLROYDE: Thank you very much. Thank you, Mr Altman.
Before you say more I think it might be helpful if we all just remind ourselves of
why we're here. At a directions hearing on 18 November we directed that there be
a hearing today in relation to the I think 34 appellants whose position is that their
appeals are not opposed on ground 1 but are opposed on ground 2, and we directed
that the hearing should be for the purpose of the court receiving submissions on
two questions of principle: question 1, is each appellant entitled as a right to argue
ground 2; and question 2, if not, on what principle should the court act in deciding
whether to permit argument on ground 2? We're very grateful for the various
skeleton arguments that we've received; and we're very grateful to Her Majesty's
Attorney General for acceding to our invitation to appoint an advocate to the court,
and we're glad to see Mr Mably.

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 It is important to emphasise that we are only concerned today with the
34 appellants, we say nothing at all about the 3 cases in which appeals are resisted
on both grounds and we say nothing at all about the 4 cases in which appeals are
not contested on either ground. We're concerned only with the issues of principle
identified in the two questions I recited; we're not concerned with the strengths or
weaknesses of any particular appellant's case in relation to ground 2. If the
outcome of this hearing is that the court will hear argument on ground 2, then that
will take place as part of the full appeal hearing, which is scheduled for 22 March
next year, and that is when the merits of the arguments will be considered. We
will not hear and will not permit submissions about the merits today.

Finally by way of preparatory observation, although, Mr Altman, the Post

Office doesn't resist the appeals on ground 1 in these 34 cases, it is ultimately for
the court to determine whether all or any convictions are unsafe on that ground,
and that too will be determined at the appeal hearing in March.

I say all of that by way of preparatory observation, and I come on to one other
matter to which I think you may have something to add in a moment, Mr Altman,
but the members of the court received within the last 30 minutes or so emails
relating to a request by one member of the press for disclosure of or access to
certain documents. It may be that you also have another similar application to
raise with us, but, subject to anything anybody wants to say, it does seem to us that
really that application or those applications will have to be postponed to the end of
this hearing. One of the problems the court has encountered in this case, without
needing to go into details, is that we have been seeking since the first directions
hearing to arrange for the orderly hearing of these appeals and applications
incidental to them and for matters to be taken in proper course. We were keen to
ensure that this hearing of issues of principle take place before the end of this term,
we were keen to ensure that the full hearing of the appeal should be as soon as
practicable next term, and it will be recalled that that meant that for at least one
leading counsel, and quite possibly for others, other professional commitments
could not be allowed to carry any weight. The court has been sidetracked by
issues that have arisen and that themselves taken up a significant amount of the
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 court's time. So, we think today we must simply proceed with the issues of
principle and applications by members of the media will have to wait until the end
of today's hearing. I don't know if you want to say anything about that. We'll hear
from any member who wants to say something shortly, of course.

MR ALTMAN: No; I was simply going to introduce the fact that Mr Witherow of either
the Daily Mail or Mail Online had invited us to allow him access to the
submissions we made in relation to Mr Wallis's application on the last occasion
and the disclosure documents that accompanied it. Mr Wallis has those
documents, and, in short, we have no objection to it, but we simply wanted the
court to be aware before anything was allowed to go to any member of the press,
that that was our position; and in relation to Mr Wallis I understand he would like
to see or have access to our skeleton submissions for today's purposes, and, again,
we would have no objection to that, if the court was minded to agree to it.

LORD JUSTICE HOLROYDE: Can you just repeat what it is that Mr Witherow has
asked the Post Office for?

MR ALTMAN: Your Lordship will remember, I hope, that when we were here on
3 December, the last occasion, Mr Wallis had made an application to the court.
We made submissions in response to his application, the submissions were dated
30 November, that was accompanied by a document, which we call a context
disclosure document, or have referred to it as such, headed, "Disclosure notes in
relation to the context for the clerk advice", and that set out the context in relation
to that advice.

(Hushed conversation)

LORD JUSTICE HOLROYDE: Can I just interrupt you for a moment, Mr Altman, and
address those who are listening remotely. There is a technical problem at the
moment, which doesn't, we hope, prevent your hearing us, but it does mean that
we're picking up from one or more sources a fair amount of background noise. So,
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 those listening in remotely should please endeavour to mute any devices or to cut
out background noise. Thank you very much.

Yes, Mr Altman; your disclosure context document.

MR ALTMAN: Yes. That's not its title; that's the effect of it. The title of the document
is "Submissions on behalf of the respondent in relation to the application by
Nick Wallis for access to papers in the proceedings", and the accompanying
document is "Disclosure note in relation to the context for the clerk advice".
Mr Wallis has had access to both of those, I think he's had that on the day that he
made his application, and those are documents Mr Witherow has asked for from
us, as to which we have no objection, but we felt it right in all the circumstances
that the court was alive to that application and our view about it.

LORD JUSTICE HOLROYDE: Thank you.

(Hushed conversation)

(Clerk reminds remote participants to mute their devices)

LORD JUSTICE HOLROYDE: Well, Mr Altman, subject to anything anybody else

wishes to say, including Mr Witherow and/or Mr Wallis, our view remains that
this will have to be dealt with at the conclusion of this hearing and in the
meantime, to reiterate a phrase that we've used before, no one should jump the
gun.

MR ALTMAN: Certainly. Thank you very much.

LORD JUSTICE HOLROYDE: Mr Witherow, if you're with us either in person or

remotely, is there anything you wish to say at this stage?

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 (Hushed conversation)

LORD JUSTICE HOLROYDE: Well, Mr Witherow, this is unfortunate. I understand

that the technical problem at the moment means that all those listening in remotely
are muted and can't for the time being be unmuted. I suppose if nothing else that's
a technical reason why I've just given is going to work out in practice. Is
Mr Wallis present?

MR WITHEROW: Are you able to hear me now?

LORD JUSTICE HOLROYDE: Yes, thank you. Is that Mr Witherow?

MR WITHEROW: Yes. Can you hear me okay?

LORD JUSTICE HOLROYDE: Yes, we can, thank you.

MR WITHEROW: The only thing that I would wish to raise in addition to what the
barrister for the Post Office has said is to mention I've also applied for some
documents including a couple of provisional grounds of appeal and also a
respondent's note that was filed with the court ahead of the hearing on
18 November, the directions hearing. I have made the parties to whom those
documents belong aware of my application, and I have not received any indication
that they would oppose those. So, I would be grateful if the court would also
allow those to be released to the press.

LORD JUSTICE HOLROYDE: Thank you, Mr Witherow. We're aware from the
emails that you are asking for rather more documents than those Mr Altman has
mentioned, but we will have to come back to this at the end of the hearing.
Mr Wallis, did you want to say anything at this stage?

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MR WALLIS: Only that I have indirectly asked the Post Office, via their solicitor Peace
and Peacey(?), for permission to publish elements of the disclosure note that was
sent to me, and I was told no (Several inaudible words) disclosure in relation to
(Several inaudible words) I received (Several inaudible words).

LORD JUSTICE HOLROYDE: Yes. Well, we'll come back to it at the end, Mr Wallis.
Thank you very much. Mr Altman, was there any other preliminary you needed to
mention?

MR ALTMAN: No, not from us, thank you very much.

LORD JUSTICE HOLROYDE: Thank you. Well, Ms Busch, I think probably this is
over to you now. Thank you for coming into the case at what we know has been
short notice. We're very grateful to you and your junior for doing so.

MS BUSCH: Thank you very much, my Lord. I'm most grateful for that. I'm very
conscious of the introductory remarks that you have just made about the purpose
of this hearing and sticking to issues of principle. I shall attempt to do so. I shall
also be relatively brief. My Lords and my Lady, you have Mr Marshall(?)'s
skeleton argument. I propose to take that largely as read.

LORD JUSTICE HOLROYDE: The relevant paragraphs (and, as it seems to us at the

moment, the only relevant paragraphs) start at paragraph 70 and go on to the end.

MS BUSCH: Thank you. I can, I hope, make things a little bit easier in two respects,
first to say I do not propose to pursue the as-of-right argument. I accept the
submissions made by my learned friend, the Attorney General, on that point. So, it
is a question of the court's discretion with respect to the second question that was
asked. Again, so far as that is concerned, I'm very grateful to Mr Mably QC. We
do not diverge from the very fair-minded exposition of principles set out in his
observations. I hope that helps matters.

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LORD JUSTICE HOLROYDE: Yes. Thank you.

MS BUSCH: What I would like to do, if I may, is to make a few submissions, first
relating to the overriding objective and how that plays in to the mix. I would like
to highlight a number (not too many, but a number) of passages from the case law
and also particularly in connection with the overriding objective to clarify the
appellants' position with regard to article 6 of the European Convention. Again, I
don't propose to go through the points in my learned friend Mr Marshall's skeleton
so far as that is concerned. The clarificatory point that I wish to make, first
starting with the overriding objective, which I'm sure my Lords and Lady will be
very familiar with, but the sub-paragraph of that --

MR ALTMAN: My Lord, I'm sorry to interrupt Ms Busch, but we're having real trouble
of this side of the court hearing what Ms Busch is saying.

LORD JUSTICE HOLROYDE: Yes. It is difficult, Ms Busch. I don't know whether

the microphone on the bench in front of you is functioning properly, but in any
event would you be kind enough, please, to speak up.

MS BUSCH: I'm sorry; I shall endeavour to.

LORD JUSTICE HOLROYDE: We have the case in the biggest court in the building,
Ms Busch, as really a challenge to counsel to fill it with the sound of their voices!

MS BUSCH: So, I don't know if I need to repeat what I said. In brief summary, the
appellants are not pursuing the as-of-right argument today. We accept the position
as set out by my learned friend, Mr Mably QC, in his observations. Secondly, as a
general proposition we accept that the exposition of the principles set out by the
Attorney General is correct and fair. So, I hope that that helps the court.

LORD JUSTICE HOLROYDE: Thank you.

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MS BUSCH: Thirdly, however, I would like to make a few additional points, first of all
relating to a number of the sub-categories of the overriding objective, how that
plays into the mix, secondly clarifying the position as regards article 6 of the
European Convention and thirdly highlighting a number of passages in the case
law dealing with category 2 abuse of process.

LORD JUSTICE HOLROYDE: That's very helpful. Thank you, Ms Busch. Can we
also invite you at some stage whenever convenient to yourself to say anything you
wish to say about the suggestion in more than one of the skeleton arguments that
arguing ground 2 will add very substantially to the time taken to argue ground 1.
That's one of the aspects the court has to consider, and we'd be grateful to hear
from you and other counsel about that as we go through, but I raise it with you at
the outset because you're first on your feet.

MS BUSCH: Well, yes, I might just as well deal with that now. Obviously that is one
of the criteria set out in the overriding objective, dealing with cases efficiently and
expeditiously. I'm conscious of that. But what I would submit is that it is a
question of proportionality. I accept of course that it is likely if not inevitable that
if the court decides to deal with category 2 abuse of process that will take up
additional time, but, in my submission, it does not follow from that that the matter
would be dealt with in a way that is in any way inefficient or expeditious. I would
submit that inefficiency and lack of expedition relates to time spent unnecessarily
on a given case or a given issue (one might even go so far as to say time wasted,
but certainly time spent unnecessarily), but my client's position is that given the
exceptional nature of their cases, the exceptional background to this set of
proceedings, in a nutshell the position is that it is firmly in the interests of justice
that the appellants should be permitted to argue category 2 abuse and, that being
so, it cannot, with respect, be said that it would be an inefficient use of the court's
time to do so.

There is possibly a point that I should take on the chin as regards article 6, and
while we're dealing with article 6 I'll make two points about that, if I may. The
first point about article 6 is that there may have been some suggestion drawn from
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 Mr Marshall's skeleton argument that article 6 somehow gives right to a
freestanding right to an explanation for why they took place. So, the clarification
is that's not correct. Where the case law dealing with article 6 talks about the need
for an explanation from the state what the courts are saying is that if you have
what on the face of it is an unreasonable delay with no explanation from the
relevant state actor for that delay then the court is likely to find that a violation of
article 6. That's the point, and of course in this case we do have an explanation for
the delay, namely, we say, the behaviour that certainly comprised category 1 abuse
of process, and, we say, that also comprised category 2 abuse of process. So, that's
the first point about article 6.

The second point is that I have to concede, I think, that the point cuts both
ways, because obviously the article 6 point that is relevant to these proceedings
concerns undue delay in the resolution of criminal proceedings, and I accept the
appellants are arguing for a position which it would appear on the face of it would
cause additional delay, but, again, in my submission, it's a proportionality point. If
additional delay before the resolution of an issue and indeed delay in proceedings
is necessary to resolve a question of justice then it is consistent with article 6 as
well as with the overriding objective. Those are the two points that I would like to
make about that.

LORD JUSTICE HOLROYDE: I'm sorry to interrupt you, Ms Busch. Having come
into the case comparatively recently, I don't want you to feel that in any way
you're in a position of disadvantage. So, can I simply ventilate this so that you can
address it if you wish to and others can address it as well.

Looking at the matter in very broad and imprecise terms: ground 1 is that an
appellant could not in all the circumstances have a fair trial and in essence because
of a lack of information disclosed to the appellants about matters that would have
assisted their defence; and ground 2 is a contention that the appellants should
never have been prosecuted in the first place. Again, recognising that this is very
much a sketched outline, it does seem to us at any rate as a provisional view that in
relation to ground 2 a central issue is likely to be who in the Post Office knew
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 what when, because whether it was fair and just to prosecute someone in the first
place may well turn on what the prosecutor did or didn't know at that stage about
for example problems with the Horizon system.

One of the practical considerations that we'd like help with from any counsel
who wishes to make submissions is the extent to which, given that broad outline,
argument about ground 2 is actually going to involve new aspects of evidence, or
new areas of research, if you like, which don't arise in any event, because it may
be that one legitimate way of looking at it is to say that if there is an argument for
ground 1 purposes about whether there was a culpable failure to disclose a
particular document to a particular appellant it may be that the question of who in
the Post Office knew anything about the significance of that document and if so
when is pretty closely linked and doesn't actually add all that much to it, but it may
be that a contrary view is that the ground 2 aspect would involve a good deal of
expert argument and perhaps some additional evidence.

So, those are the practical considerations we'd welcome help with; but, as I said
before, we're very conscious that you've had precious little time to assimilate the
detail of the case and you may not be in a position personally to help us much with
that.

MS BUSCH: I'm very grateful for that, and that is correct; I'm not exactly on expert on
criminal procedure, if it comes to that.

LORD JUSTICE HOLROYDE: Well, neither of those features has manifested itself so
far, if I may say so.

MS BUSCH: Thank you very much. Just taking it in steps from your comments just
now, yes, obviously I'm conscious of the difference between category 1 and
category 2 abuse, and indeed that's very important by my clients, because we take
the view that category 1 abuse does not amount to a complete vindication, if you
like, of the appellants. In theory one could easily have a situation in which a
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 person is guilty of an offence, albeit for whatever reason, procedural reasons, they
could not be given a fair trial. So, obviously we want to be in a position where
ground 2 should never be prosecuted in the first place, taking that as a complete
vindication of our reputations. My Lords and my Lady would be very conscious
of the really terrible, terrible time the appellants have had, absolute devastation to
their lives and livelihoods, and perhaps it's not a legal submission as such, but one
could take the view that the least could be done is to afford them an opportunity to
vindicate their reputations.

So, that's that point, and then, coming to the practical considerations, who knew
what when, additional evidence and so on and so forth, I can only submit that the
court could exercise case management powers in order to deal with that. To be
clear, I fully take the Post Office's point that the court does not serve as a public
tribunal; it's not on a fact-finding, investigative mission in that sense. I accept that
point. But, that said, whilst enquiries into category 2 abuse are relatively rare, the
court obviously allows for them to happen, I did say I wanted to take you to a few
passages in the case law where that is dealt with, and I submit that the court has
case management powers in order to enable that, going back to the initial point, to
be done expeditiously and efficiently.

Going back to the point at which we started and looking at the overriding
objective, dealing with cases efficiently and expeditiously, I do repeat the point,
but that has to be a question of proportionality, efficiently and expeditiously in
relation to the issues that are at stake, and I do submit that if my Lords and my
Lady take the view that the requirements of justice entail that a category 2 abuse
case should be heard then it must follow, in my respectful submission, that that
cannot be foreclosed upon simply by reference to issues of efficiency and
expedition. That must follow.

MR JUSTICE PICKEN: So, Ms Busch, in weighing the various factors to be found in

the overriding objective, you say that if there is delay involved then it's a less
important factor when weighing against other considerations, but, just coming
back to whether there is delay involved, as my Lord was pointing out, today's
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 hearing is to decide whether category 2 should be part of the appeal substantively,
but the appeal substantively is timetabled to be taking place in March, and so it's
not apparently contemplated by anybody that that substantive appeal could not
also deal with category 2, and therefore that is the timescale. Nobody is
suggesting we can or should be doing anything ahead of March in relation even
just to category 1. So, I assume your submission would be therefore there isn't
delay involved in the involvement of category 2 of category 1 because it stills
leads to a substantive appeal in March.

MS BUSCH: That's very helpful, and that is correct. The spectre that appears to be
raised by those who oppose the suggestion that a category 2 argument should be
heard is, as I say, first of all a wide-ranging, open-ended public inquiry, secondly
unspecified delays, presumably adjournments or additional time required, so on
and so forth, but the court has case management powers to deal with that, and if
the hearing is listed for four days in March then issues can be timetabled in order
to accommodate that.

LORD JUSTICE HOLROYDE: Yes. The directions given were for this group of
appeals to be heard first, to be followed by the other appeals, including the fully
contested appeals, and the court's expectation was that everything collectively
would be completed in four to five days. So, we weren't specifically expecting
four days just for this group of appellants opposed on ground 2, unopposed on
ground 1; but your core point remains that the court can direct the parties in such a
way as to ensure that the hearing does proceed at the right time and within the
right timescale.

MS BUSCH: Indeed, and, again, if I can juxtapose the public-inquiry point and my
Lord's suggestion that investigation might be required to take place into who knew
what when, I fully accept it's not the court's function to engage in that sort of
investigative exercise. Myself, I can't see why a category 2 abuse case could not
be mounted on the back of the evidence that is available, taking into account the
findings of the Criminal Cases Review Commission, and obviously my Lords and
my Lady will have picked up on Mr Marshall's skeleton argument. The appellants
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 place very considerable importance on the fact that the Clarke advice had only
recently come to light (however, it has come to light now; so, that would obviously
be a factor in the mix) and then disclosure, I believe, due to be completed on
5 February. My Lord has very fairly observed I have come to this rather late, and I
can't pretend to have read every single page of the thousands of pages of
documents that have fallen into my laptop, but I have read quite a lot of it, and I
can't for myself see why a very respectable category 2 case could not be mounted
on the basis of the evidence that's been disclosed.

LORD JUSTICE HOLROYDE: That's very helpful.

MS BUSCH: So, just to summarise all of that, and, again, slightly at the risk of
repeating myself, I say that expedition and efficiency need not be prejudiced by
hearing a ground 2 argument (I've dealt with the delay point; there's no reason for
there to be delay), and of course the overriding consideration has to be the interests
of justice. Returning to the point about the Clarke advice, the point made by the
appellants in their skeleton argument was that albeit that the Commission
suggested that a cogent category 2 abuse case could be made on the basis of the
evidence that was available to them, the point, of course, that Mr Marshall makes
is they had not had sight of the Clarke advice, which sheds yet more light on the
Post Office's behaviour, therefore the complete case, if you like, has never been
ventilated within a public forum, and, we submit, it's very much in the interests of
justice that it should be.

MRS JUSTICE FARBEY: Do you therefore need a discrete article 6 argument? Could
it not be said that by application of the principle of the interests of justice and the
overriding objective your clients will get to a state of affairs where on your
argument this case looks at category 2 abuse, the matter is publicly ventilated, that
is just satisfaction under article 6 and, although we might not be using the
language and structure of article 6 we get to the same place anyway?

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MS BUSCH: That is very fair, yes. I add this also by way of clarification: part of the
reason I don't propose to go through all of my learned friend Mr Marshall's
submissions is because I don't need to establish at this stage that there has been a
breach of article 6. I think it's pretty clear that there has, but I don't need to
establish that. All I need to show is that article 6 is engaged, and at least one
aspect of the relevance of that, of course, is that the overriding objective again
specifically refers to article 6, recognising the rights of the appellants in this case,
particularly those under article 6 of the Convention. One could have all sorts of
interesting discussions about the extent to which common law functions to the
same effect as the European Convention, but there it is, specific reference to
article 6. We say clearly (and it cannot be contested sensibly, in my submission)
that article 6 is engaged and therefore there's yet another consideration that
requires to be taken into account pursuant to the overriding objective.

LORD JUSTICE HOLROYDE: Taking up my Lady's point and looking at it with

reference to taking up further time et cetera, one might say just as a general
proposition if a trial was unfair because relevant material was not disclosed to the
defence then it's really inevitable that the other side of that coin is that the just
resolution of the case is delayed, because the disclosure comes late, if that's what
happened, and only then can things that went wrong be put right; and so really, as
my Lady was suggesting, perhaps with particular reference to whether extra time
is needed, if it's just the other side of the coin, "You didn't disclose this
information to me when you should have done, therefore my trial wasn't fair, and,
what's more, I'm now in a position to argue I should never have been tried in the
first place; but, be that as it may, my trial was unfair, and there has been delay in
the truth coming out". So, whether it really adds anything very much to the overall
timescale of the proceedings in the court may perhaps be doubted.

MS BUSCH: Well, again, in my submission, there's no reason why it should add much.
Any retrospective article 6 argument could be mounted on the basis of the material
that's already before the court, (obviously I don't know what the further disclosure
is going to be), and the principles are well established; there should not be any
dispute about them. It simply, if you like, underlines the wrong that has been done
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 to my appellants that not only have they been subject to an unfair trial, there has
also been, we say, a breach of their human rights under article 6, and, so far as
delay is concerned, the point about delay, of course, is there was delay in obtaining
justice. That is the point, and if we're right, that in order to obtain justice we need
to be able to bring the category 2 abuse case, then the delay point in a sense fades
into insignificance, because the delay is a delay in doing justice.

MR JUSTICE PICKEN: It may be said that the point that my Lady was putting to you
is captured by the overriding objective at sub-paragraph (2)(c), recognising the
rights of a defendant, particularly those under article 6. So, in a sense that makes
the point, I think.

MS BUSCH: I quite agree. Without going into the detail of the skeleton, you will have
seen that from paragraph 30 onwards the appellants' skeleton has a section
concerning the exceptional nature of the section 9 reference, and it should go
without saying, but I just highlight the very exceptional nature of this case. It is, in
my understanding, one of the very, very few cases in which the Commission has
made a reference in circumstances where there has been no appeal or application
for permission to appeal. It's obviously a highly unusual case, I don't believe
there's any dispute about that, and I do submit that that's a relevant consideration to
take into account in determining whether or not the appellants should be granted
ground 2.

If I can just respond very briefly -- obviously I'll leave Mr Altman to make his
submissions, but, just for the avoidance of doubt, in paragraph 80 of the
respondent's November response the Post Office suggests that the ground 2 case
would be incompatible with the overriding objective. Well, I've already dealt with
that: I say it's squarely compatible with it. Then they also submit that it's
unnecessary and inexpedient to consider the receipt of fresh evidence beyond the
High Court judgments where the respondent has conceded that these convictions
are unsafe, and I think I've already dealt with that, actually: for us it's not merely a
question of unsafe convictions; it's a matter of prosecutions that should never have
been brought. Then they also submit, thirdly, there is no foundation upon which
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 these appellants can amplify or indeed should be permitted to advance any further
grounds of second-category abuse. Well, again, obviously we repudiate that
suggestion; we say it's fairly and squarely in the interests of justice that they
should be able to do so.

Then, just ticking off a few points before I turn to the case law, I've said we
accept the Attorney General's observations, but I particularly highlight
paragraph 32, if I can be permitted to just read that out (it is very short):

"Aside from practical considerations the competing factors relate

on the one hand to the efficient and expeditious administration of
justice by the court and on the other the interest of the appellants
being vindicated on as wide as basis as possible."

I emphasise the vindication point. Obviously I've already explained why we

say that is not detrimental to efficiency and expedition. Then paragraphs 43 and
44 we expressly adopt. I won't read all of the passage out, but the attorney general
does state, fairly and rightly, that the ground 2 issue is obviously a serious matter
and goes on to say:

"It could be argued that it is in the interests of justice for a matter

of this nature to be publicly ventilated and resolved and that
prosecutors should not be permitted to sidestep (Reading to the
words) by making a concession on another ground."

In essence this is the point the appellants are making, and that is entirely right.
That is precisely the point that we're making.

Then I'm not entirely sure where we have got to with the papers in this case.
We filed an electronic bundle of authorities. I also have hard copies here.

LORD JUSTICE HOLROYDE: Thank you. I think we received the electronic bundle
of authorities yesterday evening. I think somebody in your chambers was very
diligently transmitting things at a lateish hour, and the lawyer in the

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 criminal-appeal office was equally diligently forwarding them to us. So, we have
that bundle if you want to refer to anything in it.

MS BUSCH: Thank you very much. Well, if I can take you first to the R v Maxwell
[2010] UKSC 48 case, which is at tab 21 …

LORD JUSTICE HOLROYDE: Electronically I don't know that we have tabs, but we
have page numbers, "page 1 of 905", rather dauntingly. So, if you can help us
with the page number within the 905-page bundle that would be helpful.

MS BUSCH: Are they the numbers at the bottom of the page?

LORD JUSTICE HOLROYDE: Yes.

MS BUSCH: Right. So, it's page 551.

LORD JUSTICE HOLROYDE: Thank you. Yes; Maxwell.

MS BUSCH: Starting with paragraph 13, where the court sets out the two categories of
abuse, I just want to emphasise -- and I know my Lords and my Lady are very,
very familiar with all of this material but emphasise, after having set out the two
categories, it is said:

"In the second category of case, the court is concerned to protect

the integrity of the criminal-justice system. Here a stay will be
granted when the court concludes that in all the circumstances a
trial will 'offend the court's sense of justice and propriety' [citing
R v Horseferry Road Magistrates' Court, Ex parte Bennett
[1994] 1 AC 42] or will 'undermine public confidence in the
criminal justice system and bring it into disrepute' [and then
there's a passage cited from R v Latif and Shahzad [1996] 1
WLR 104, per Lord Steyn]:

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 "'The law is settled. Weighing countervailing considerations of
policy and justice, it is for the judge in the exercise of his
discretion to decide whether there has been an abuse of process,
which amounts to an affront to the public conscience and
requires the criminal proceedings to be stayed […]. Ex parte
Bennett was a case where a stay was appropriate because a
defendant had been forcibly abducted and brought to this country
to face trial in disregard of extradition laws […]. The speeches
in Ex parte Bennett conclusively establish that proceedings may
be stayed in the exercise of the judge's discretion not only where
a fair trial is impossible but also where it would be contrary to
the public interest and the integrity of the criminal justice system
that a trial should take place. […]'

"[Then, in paragraph 15,] the same principles have also been

applied by the Court of Appeal when quashing a conviction on
the grounds that it considers the conviction to have been
unlawful by reason of an abuse of process [and they give an
example, R v Mullen [2000] QB 520]."

So, in my submission, it's very important to note that whereas category 1 abuse
is relatively limited and relates really directly to the individual defendants'
interests category 2 abuse is very much considerably wider and does not simply
concern the case of whether justice was done in the sense of a fair trial in the case
of one or more than one defendant but rather the integrity of the criminal-justice
system, the court's sense of justice and propriety and, thirdly, public confidence in
the criminal-justice system. In my submission, all three of those issues are very
much in play in the present case, because, given the nature of the Post Office,
given the high-profile proceedings that have taken place, it is very much a question
of public confidence in the criminal-justice system at risk, at least, of being
undermined. Again, I make the point, which we do make in our skeleton
argument, that it would be quite wrong for a body such as the Post Office or a
respondent to a potential category 2 case to be able to sidestep that issue by
conceding a category 1 point.

MR JUSTICE PICKEN: That's the point you make, actually in the context of the first
question, but it's at paragraph 72.

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MS BUSCH: Yes, that is exactly the point we're making at paragraph 72.

I think that pretty much takes me towards the end of my submissions. I'll just
finish off, if I may, by reverting back to the overriding objective. We say
permitting argument under ground 2 would be entirely consistent with the
overriding objective. First, it's required in the interests of fairness to the appellants
and could not be unfair to the respondent. Importantly, the point I'd make is it
would enable the appellants thoroughly to vindicate themselves on the basis not
only that they could not have and did not have a fair trial but also on the basis that
they should never have been prosecuted in the first place. Secondly, it would give
due recognition to the rights to the appellants under article 6. Thirdly, it would not
be inimical to the requirement that cases should be dealt with efficiently and
expeditiously. As I say, this is a matter of proportionality. The lack of desiderata
should not be relied upon to foreclose on justice. There is no reason why the
Court of Appeal should not deal with the appellants' ground 2 case both efficiently
and expeditiously in a manner that is proportionate to the seriousness of the
interests at stake, obviously where necessary exercising case management powers.
Finally, but importantly, permitting the appellants to argue ground 2 is, with
respect, in their submission, the only way in which the severity of the
consequences for them of their wrongful convictions could properly be dealt with.
In particular, as I've just said, it would provide a means for the appellants to
thoroughly fully vindicate their reputations. Again, I'd just emphasise the
importance so far as ground 2, category 2 is concerned of maintaining the integrity
of the criminal-justice system, the court's sense of justice and propriety and public
confidence in the criminal-justice system. I submit, given the very, very, very
sorry history of these proceedings and the extent to which the appellants have been
subject to abuse of process in both senses, both category 1 and category 2, there is
at the very least a very real risk of public confidence in the justice system being
undermined if they are not permitted to make that case and similarly the integrity
of the criminal-justice system being undermined if they are not able to make that
case.

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 Just my final, final point: depending on my instructions, obviously, I would not
as a matter of principle make these submissions in any criminal case, if you like --
I emphasise the very, very, very exceptional nature of this particular case. For the
avoidance of any doubt, it's not as if permitting category 2 would create any sort of
precedent. Those are my submissions.

LORD JUSTICE HOLROYDE: That was very helpful. Thank you very much indeed.
I think perhaps it's best if we hear from other appellants who wish to make any
submissions and then from Mr Altman, and then we'll ask Mr Mably to go last, if
he would be so kind. Mr Moloney, we've seen your skeleton; thank you very
much to you and Ms O'Raghallaigh for that. Is there anything you want to either
add to the written submissions or develop in the light of what Ms Busch has said?

MR MOLONEY: Not particularly, my Lord. It seems that there's no dispute as to the

first question that the court's asked any longer, as to whether or not there's any
entitlement as of right to argue ground 2. We've set out the factors that the court
might take into account from the Criminal Procedure Rules and the Practice
Directions within our skeleton argument, but the court has asked this morning
about whether or not the argument in relation to ground 2 might take time. So, if I
may just address you briefly on that …

LORD JUSTICE HOLROYDE: Please; that would be very helpful.

MR MOLONEY: Thank you. We have very much in mind the court's identification of
the real purpose of today, which is to deal with those whose cases have been
conceded on ground 1 by the Post Office, but it is necessary to mention, and only
mention, that there are four appellants whom we represent where the Post Office
have conceded the appeals on both ground 1 and ground 2, and that concession has
been made on a fact-specific basis. In order to properly represent the remaining
appellants that I'm instructed to appear for a fact-specific approach may be
necessary in the same way in relation to those whose appeals have simply been
conceded on ground 1, because there is a fact-specific basis on which the Post

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 Office has conceded some appeals, and so that would require me on behalf of
those appellants, along with Ms O'Raghallaigh, to advance before the court a
fact-specific analysis of each of their cases and as to why in fact the Post Office is
wrong not to concede ground 2 in their case. So, that's the first aspect of ground 2
and the potential that it could add to the proceedings.

The second is, if I might describe it as this, the global unfair-to-try argument. It
appears to us that, with the greatest respect to Ms Busch, that it's not simply a
question of whether there's a respectable ground 2 argument on the face of the
papers at the moment. what we need to do as the representatives of the appellants
for whom ground 2 has not been conceded, is to advance that ground 2 argument
in the best light possible. Important to the court's considerations of a ground 2
unfair-to-try ground is potentially who knew what in the organisation, when they
knew it and why it wasn't disclosed, whether it was inadvertent non-disclosure,
whether it was deliberate non-disclosure, which of course would be absolutely
material to the court's consideration of the basis of an unfair-to-try argument. That
may necessitate the calling of witnesses before this court to be examined. My
Lords and my Lady will have seen not just in the skeleton arguments but in issues
that have been ventilated in the press some of the allegations that are at the core of
the consideration of the position that presents itself to this court, and it may be
necessary to hear evidence. Expert evidence may in fact be necessary as to the
extent of material that was available to people within the Post Office as to the
malfunctioning of Horizon and whether or not it should have been spotted and
disclosed.

Those are potential areas in which further time might be taken up in these
proceedings if ground 2 were to be advanced, two aspects to it, fact-specific in
relation to each appellant and then the potential calling of evidence in relation to
the unfair-to-try.

MR JUSTICE PICKEN: On the fact-specific people there is also, is there, the general?

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MR MOLONEY: Oh yes, my Lord.

MR JUSTICE PICKEN: So, one possibility (I put it out there and no more) would be to
focus on the general, which may mean the fact-specific never needs to be arrived
at, depending on the outcome of the general.

MR MOLONEY: That's perhaps analogous to the situation that is presented to the court
today, which is that the court may not need to hear ground 2 if the court decides
that the convictions are unsafe on ground 1. So, the same principle perhaps
applies in terms of whether or not a fact-specific basis could be mounted, because
the court may then decide ground 2 is not made out as a global unfair-to-try but
certain appellants may have wished to advance a fact-specific ground 2, which the
court should take into consideration in deciding whether or not ground 2 is made
out.

MR JUSTICE PICKEN: That's a slightly different point. Ms Busch's point is that her
clients wish to have ground 2 established so as to feel completely vindicated, and
what I was postulating was the possibility that the general ground 2 could be
pursued; if successful, then the fact-specific wouldn't arise, because the people
concerned would be vindicated on ground 2 because of the general and you would
never get to the fact-specific. If, of course, ground 2 isn't established in the
general then that leaves open the fact-specific, but it may be, given that you're
talking about your clients, that those particular people wouldn't be terribly
bothered anyway, because they're happy with ground 1.

MR MOLONEY: Just to make the position of the appellants whom I represent clear, as
is set out in the provisional grounds of appeal it is not accepted that the Post Office
position in respect of ground 2 in their cases is correct. They make a pragmatic
decision to preserve their position, but if ground 2 were to be argued then the
appellants whom I represent would fully engage in that process.

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MR JUSTICE PICKEN: The point I'm making, as I think you've got, is if ground 2 is
to be considered it could be considered at the general level, which may mean that
the fact-specific never needs to be got to. Equally it may mean that it will be got
to but then it would be a decision, pragmatic or otherwise, for your clients to take
as to whether they want the fact-specific having failed on the general, if they fail,
to be considered.

MR MOLONEY: Obviously, within the powers of court management available to this

court then that process could occur.

LORD JUSTICE HOLROYDE: I don't want to seem to oversimplify matters,

Mr Moloney, because I fully understand your point that there may be factors
specific to an individual appellant that would need to considered and ventilated,
but if we take some of the broader points, going back to my observation to
Ms Busch that it seems likely that a lot will turn on who knew what when, if one
imagines a very straightforward hypothetical case in which a series of prosecutions
has been launched on the basis of the evidence of witness A, who was at the outset
generally believed to be of impeccable character and entirely reliable, there comes
a point in time at which the prosecuting authority learns one way or the other that
actually witness A used to be known as Mr B and has a string of convictions for
dishonesty and perverting the course of justice here and abroad and there are
further prosecutions. In that very simple hypothetical case one can establish who
knew what when. It's difficult perhaps to argue that a prosecution commenced
before that date was a prosecution that should never have been brought, but it's
pretty easy to argue that a prosecution commenced after that date was a
prosecution that should never have been brought, and in that sense my Lord's
suggestion that one would be able to look at the general proposition and really just
draw a dividing line between those appellants whose cases were one side of the
dateline and those whose cases were the other side of the dateline without perhaps
needing to go any further than that. Bur obviously you represent the individuals, I
don't, and you'll know far better what sort of issues you might want to argue if it
came to that situation.

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MR MOLONEY: Yes, and the factual situation in each case is much more complex
than simply there was a witness who couldn't have been relied on.

LORD JUSTICE HOLROYDE: Of course.

MR MOLONEY: My Lords and my Lady will be aware that the Post Office has
conceded ground 2 in relation to four appellants on essentially the role of the
confiscation proceedings within that case and also the availability of pleas on the
particular basis. Those are the types of issues that would occur in these cases that
would be relevant to ground 2.

LORD JUSTICE HOLROYDE: Yes. Can I ask you a pragmatic consideration,

Mr Moloney, which I didn't ask Ms Busch, because it would have been unfair with
the limited time she's had available, but you may be better placed to answer it with
the longer experience you have of the litigation generally: do you see any reason
why an appellant who wished to pursue ground 2 if the court is going to permit
argument on it shouldn't draw up a list of proposed agreed facts that the respondent
can be invited either to admit or not to admit, thus narrowing the need for any
further evidence and the need for lengthy argument?

MR MOLONEY: I can see no reason in principle why that could not happen, my Lord.
There's nothing that would distinguish these proceedings from what might occur in
other proceedings where agreement of facts is routine in order to identify the
issues that are really before the court and to narrow the arguments that the parties
need mount.

LORD JUSTICE HOLROYDE: Thank you. I think between us we're comprehensively

diverging you from the route on which you had set out. I do apologise, because I
know it's often difficult for the advocate in this situation to remember where he
was when the path was suddenly blocked in front of him.

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MR MOLONEY: Just to say that you have our submissions and one thing that we ought
to say, though, is that we in our submissions have said that if the court were
prepared to consider ground 1 to begin with and then consider whether or not the
convictions are safe then that would be a straightforward process, and the reason
we've said that a straightforward process is because although the court has said
that there can be reference to the judgments of Fraser J it will be for the court on
hearing the appeals to decide whether or not they are to be admitted as fresh
evidence my Lords and my Lady know that there is no dispute between the parties
as to the admissibility of those judgments. Just having McIlkenny(?) in mind, that
would be the fresh evidence before the court if the court admitted those judgments,
and it's on that basis that the Post Office concede ground 1.

MR JUSTICE PICKEN: I fear I'm about to disturb you again in the way my Lord has
said we shouldn't have been doing, but you mentioned a few moments ago about
the possible need for evidence, including expert evidence, as to the extent of the
malfunctioning of Horizon. I haven't read every single page of Fraser J's
judgment, but I think it's fair to say, is it not, that that is the very territory that he
traversed.

MR MOLONEY: Indeed, and so most of it is covered.

MR JUSTICE PICKEN: Exactly, and therefore, picking up on my Lord's suggestion,

the preparation of any agreed facts ought to be aided by a closer examination of
the judgments, particularly the last judgment.

MR MOLONEY: Absolutely. If there were to be any expert evidence it would certainly

be very limited in the light of the findings of Fraser J.

MR JUSTICE PICKEN: Thank you.

MR MOLONEY: The process for the court of determining the safety of the convictions
on ground 1 would be, we would respectfully submit, quite straightforward,
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 because not only would there be agreement on the admissibility of the judgments
of Fraser J but there would also be agreement between the parties that the
convictions were unsafe on ground 1 and then it would be for the court to
determine whether or not in fact they are unsafe, whether or not the court thinks,
as the statute says, that the convictions are unsafe. So, it would be a relatively
straightforward process, and in terms of the exercise of the court's discretion then,
whilst nobody has suggested that that process should have a date earlier than
March, if the court were able to find a day then of course that could be done much
more quickly. The court will have in mind, of course, that many of these
appellants have been convicted for a very long time and still carry the weight of
those convictions, and the court will also have in mind that last Friday, in the
Crown Court at Southwark, the convictions of six appellants whose cases were
referred to Southwark Crown Court were quashed, in a hearing before HHJ Taylor.

LORD JUSTICE HOLROYDE: Yes. Those, I think, were cases in which the appellants
had been convicted in a magistrates' court, and so their appeal lay to the Crown
Court, not to this court.

MR MOLONEY: That's it.

LORD JUSTICE HOLROYDE: I'm bound to observe that I don't recollect anyone
mentioning to us at any stage in the proceedings in this court that the Crown Court
appeals were going to be heard last week.

MR MOLONEY: Being fair to the Post Office and the appellants, none of us knew
until, I think, on Tuesday we were told that they were to be listed on the Friday.

LORD JUSTICE HOLROYDE: Well, I think, speaking entirely for myself, but it may
be my Lord and my Lady are in the same position, the first I knew about it was
when I saw it on Twitter!

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MR MOLONEY: It's a very reliable source of court reporting, I have to say, and it
obviates anybody having to take a note!

LORD JUSTICE HOLROYDE: Anyway, be that as it may, we fully understand, of

course, Mr Moloney, why those who have waited to know the outcome of these
appeals for so long would very much prefer the wait to be as short as possible. But
I think your position is fairly summarised like this: you don't actively seek to argue
ground 2, but if ground 2 is being argued by other appellants with the leave of the
court then you would wish to join in that argument.

MR MOLONEY: Absolutely. Just to reiterate, it's made clear in our provisional

grounds of appeal that we do not accept the Post Office's position in relation to
ground 2 and we preserve our position depending on the court's decision as to
whether or not ground 2 can be argued. If the court allows argument on ground 2
we will hopefully take a full role in the arguments in relation to ground 2.

LORD JUSTICE HOLROYDE: Thank you. Anything else?

MR MOLONEY: No.

LORD JUSTICE HOLROYDE: Thank you very much, Mr Moloney. Mr Orrett, if you
are able to hear us and if we're able to get you back on screen …

(Hushed conversation)

LORD JUSTICE HOLROYDE: Well, we can hear you but not see you at the moment,
Mr Orrett.

MR ORRETT: My Lord, my camera is on. So, I'm not sure why you can't see me.

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LORD JUSTICE HOLROYDE: We can now; but thank you very much. We're sorry to
hear that Mr Stein is indisposed, but please pass on our best wishes for his quick
recovery.

MR ORRETT: I will do so. With our submissions we rely upon our recent skeleton
argument; and could we also adopt in relation to category 2 the submissions that
have been put forward by Mr Moloney?

LORD JUSTICE HOLROYDE: Yes. Thank you.

MR ORRETT: Our position is the same as that you outlined for Mr Moloney.

LORD JUSTICE HOLROYDE: Well, you and Mr Stein represent four of the
appellants. Can you help us with what additional court time would be likely to be
needed, in general terms, if there were to be argument on ground 2 in those four
cases?

MR ORRETT: There are two elements to that. We are still going through (Inaudible).
Our position might be that if category 2 abuse is argued it couldn't be done in
March. The reason for those submissions is there is currently an ongoing
investigation in relation to Mr Jenkins. Even though the Post Office has conceded
that Mr Jenkins misled the court there has been no response from Mr Jenkins. The
evidence he gives during the investigation could have an impact on any potential
category 2 argument for review. We won't know the extent of his evidence until
the investigation is complete. It could be that Mr Jenkins could already before he
gave evidence to court have informed people within the Post Office and (Several
inaudible words). We just don't know. That, in our submission, could be central
to any category 2 abuse argument, therefore we would feel uncomfortable and
might not properly be able to put forward full category 2 abuse without knowing
the outcome of that investigation. It's unlikely that that investigation will be
complete by March.

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LORD JUSTICE HOLROYDE: Thank you.

MR JUSTICE PICKEN: Would you mind if I just followed that up. You say that the
Post Office accepts the position that you would wish to say is the case concerning
Mr Jenkins. Therefore at any hearing the parties before the court would be as one
on that issue, would they not, without any need to hear from Mr Jenkins directly or
indirectly in whatever form?

MR ORRETT: They would be at one on that issue, but what he would not know and we
might not be at one on, is what Mr Jenkins says in relation to (Inaudible) and
what one might not have known at the time when he gave his evidence. So far on
the disclosure we have there is nothing in relation to communications between
Mr Jenkins and his superiors prior to the Clarke advice.

MR JUSTICE PICKEN: His superiors, to remind ourselves, being Fujitsu rather than
the Post Office?

MR ORRETT: (Several inaudible words) The Post Office as well, because in the civil
case (Inaudible) witnesses (Several inaudible words) on Mr Jenkins. So, there
seems to be a contractual relationship, or there might have been a contractual
relationship, between Fujitsu and the Post Office that imputes knowledge from
Mr Jenkins to the Post Office. We just don't know yet.

LORD JUSTICE HOLROYDE: Yes. Was that the first of two points, did you say,
Mr Orrett? I may have misheard you.

MR ORRETT: That is the central point.

LORD JUSTICE HOLROYDE: That's the central point? Yes. Well, the position
Mr Moloney indicated on behalf of those whom he represents is that although he's
not actively seeking to argue ground 2 if argument on ground 2 is permitted and
others are advancing it he would want to take part. Your position, if I've correctly
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 understood, seems to be a slight variant on that: you don't actively seek to advance
ground 2, but if argument on it is permitted and others are advancing it you would
want to take part, but not yet; you'd want to take part as some unspecified date in
the future.

MR ORRETT: That would seem, yes, to be our position, because, in our submission it
is important that the investigation into Mr Jenkins comes to a conclusion and only
then can the court properly consider, in our submission, category 2 abuse.

LORD JUSTICE HOLROYDE: Thank you. Did you want to develop any of those
submissions further?

MR ORRETT: No, thank you.

LORD JUSTICE HOLROYDE: All right. Thank you very much indeed, Mr Orrett.
We're helped by that. Thank you. Mr Saxby, was there anything you wanted to
say?

MR SAXBY: Only that (and I'm sorry to introduce a third variant) not asking the court
to make determination on category 2; and, as I stand here now on behalf of Page,
even if the court were to proceed to determine category 2 on other appellants we'll
not be asking the court to make a determination in Page's case. It is our position,
though, if I may say so, subject to your ruling and arguments we observe argued
by others; but that is Page's position.

LORD JUSTICE HOLROYDE: That is helpful. Thank you very much. Mr Smith?

MR SMITH: My Lord, in relation to the specific question the court has asked today, in
my submission to determine ground 2 would add time and would in effect turn a
considerable number of (Several inaudible words). It is accepted on behalf of
Mr Parekh that it is not necessary to determine ground 2, and that must be the
backdrop against which the court makes its decisions regarding case management.
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 If ground 2 is to be determined, in my submission the best reason for that would
be because the public interest demands it, and to that I would submit that if an
argument is to be determined on public-interest grounds the public interest would
equally demand that it be dealt with in a full, proper and thorough manner. No
public interest could be served by summary disposal of that issue, and for that
reason I am cautious as to whether or not the court would be in a position to
determine such a question in March, principally because if the court is going to
assess who knew what and when on a general and specific basis considerable
evidence even beyond that which has been disclosed may be necessary. In my
submission, it would be necessary for the court to have to consider the knowledge
(Several inaudible words) the reviewing lawyer for each case but also at the Post
Office more generally, and, in my submission, that should all be taken into account
when making a case management decision as to the extent of argument that should
be permitted.

LORD JUSTICE HOLROYDE: Thank you.

MR JUSTICE PICKEN: Mr Smith, we're in a position where there are the appellants
represented by Ms Busch who positively want ground 2 to be gone into;
everybody else, with the exception of Mr Saxby's client, says, "No, but if it is
going to be then we want it gone into properly". If Ms Busch were to put her case
(and nobody would expect her to do so now, today) in a particular way as regards
ground 2 that focused and relied on material that was already, as it were, out there,
that would be a matter for her to put her case on behalf of her clients as she saw fit.

If she were to take the view that it's not necessary then to call evidence going
further than what's already out there, as I put it, what would then be the difficulty,
because everybody else is only interested in ground 2 if it's gone into. Is your
client's position then that it would be intended that ground 2 should be more
particular? It's slightly odd to have appellants who aren't interested in ground 2
unless you are with Ms Busch's clients that ground 2 should be gone into, who are
then wanting to say that actually it needs to be gone into in more detail than

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 Ms Busch's clients are content that it's gone into. It's a long-winded question, but I
think you have my point.

MR SMITH: I do. In terms of evidence that the court might wish to hear, that would
largely, in my submission, depend in fact on what rebuttal evidence Post Office
Ltd may be able to call. It's simply slightly unknown at this stage. There's also the
question, as I'm sure the court will hear further from those representing the Post
Office, as to whether or not advancing ground 2 for full determination engages
additional disclosure obligations (Several inaudible words) I can make
submissions on that if the court will hear; but those are my observations.

MR JUSTICE PICKEN: Thank you.

LORD JUSTICE HOLROYDE: Thank you very much, Mr Smith, and, may I say,
unless you have some form of concealed loudhailer you've revealed a quirky
feature of the court's acoustics, being far more audible from your distant corner
than counsel sitting in the front row!

MR SMITH: I'm grateful, my Lord!

LORD JUSTICE HOLROYDE: Thank you very much. Mr Altman.

MR ALTMAN: We have made our position in terms of the applicable law, and the
principles that the court should, with respect, have in mind when arriving at a
decision, clear, we hope, in both our earlier submissions, of 6 November, and
those that were served last week, on 11 December, following the argument and the
way in one sense it's narrowed over the past hour or so the real issue is: if limb 2
were to be argued what's its ambit going to be? How do we define it?

I take by way of example -- because none of the other appellants (this is no

criticism; on the contrary) has sought to define what ground 2 is going to look like.
Mr Moloney has made his position clear that he starts from the premise that there
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 are case-specific issues for all of his clients upon whom concessions have been
made in respect of limb 1, but in respect of the others Mr Moloney would have to
sit down and think, if the court allowed it, "What's my limb 2 argument going to
look like?"

I'm going to stand back from that for a moment, because I'm not going to
second-guess what Mr Moloney, or anybody else for that matter if they follow
suit, apart from Mr Saxby, might argue in that respect, but, taking up Picken J's
point, what about general limb 2, ground 2 abuse? Well, the only way I can
address the court sensibly about what that might look like is by taking up the
cudgels that Mr Marshall has left behind in the skeleton argument that he served
upon the court last week and a document called "Draft case on second-category
abuse of process", both of them dated -- albeit one erroneously 11 November, but
both of them are now 11 December, last Friday. I'm not going to ask the court to
look through the document as such, but the submissions document (and I'll just
give the references, if I may, to save time), paragraphs 5 to 10 of the draft case,
pages 3 to 28, deals with non-disclosure of issues in Mrs Misra's trial, and the
document Mr Marshall served sat the end of last week was solely in the case of
Mrs Misra, not Ms Felstead, nor Ms Skinner. We suggest that paragraphs 5 to 10,
pages 3 to 28 of that document, are nothing more than amplifying arguments of
non-disclosure, the Post Office withheld any number of different documents,
which subsequent disclosure by the Post Office has revealed to the appellants, was
available to be disclosed but never was.

Then we come to the submissions made at paragraph 11, and paragraph 11

actually occupies pages 29 to 39 of that document.

LORD JUSTICE HOLROYDE: This is all about the merits. We're very keen not to
stray into that.

MR ALTMAN: No, I'm not going into merits; I'm making an entirely different point.
My point is: what would the ambit of ground 2 be? I'm not looking at the merits at

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all; I'm simply pointing out that this is the draft case (that's what the document's
called) of the three appellants, and what would it be, because without
understanding what that draft case or actual case may be the court will not know
whether or not the March hearing dates are realistic or not, in other words whether
these hearings, the substantive hearings, can be dealt with efficiently and
expeditiously in that sense.

Paragraph 11, pages 29 to 39, regards events occurring between August 2010
and 2014, for the greater part post-dating Mrs Misra's convictions, and are not
related factually to the CCRC's reasons, which inevitably focus on the events at the
time of trial not after.

Then, moving further on through the document, the submissions made at

paragraphs 12 to 22, which occupy pages 39 through to 53, which is the end of the
document, cover the Post Office's alleged conduct following the decision to cease
prosecuting in 2013/14 right up to current-day events, including the alleged
misleading of Parliament, the alleged making of misleading public statements,
some of the contents of Mr Wallis's BBC Panorama programme in 2015, as well as
claims that the Post Office misled Fraser J during the course of the litigation last
year. So, that covers events not only during Mrs Misra's trial but everything of
note that took place between the date of her trial. In fact, the first document
Mr Marshall cited is a document of 2 August 2020 (so, before Mrs Misra's trial but
for a different purpose), not a disclosable document but one that highlights, it is
said, the Post Office's bad behaviour.

When one comes to consider then who knew what and when that's not a simple
question to answer (in fact there's more than one question, but overall there's a
rolled-up question), because one would have to look at the particular cases
affected, presumably we would have to think about inviting the Post Office to
investigate and interview lawyers affected, some of whom might still work for the
Post Office, some of whom won't, and in the generality, moving away from the
case-specific, one would have to look perhaps up and down corporate governance
and so on and so forth about what was happening in the Post Office during that
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period. So, it would require the kind of investigation that inevitably would take a
substantial amount of time, and it's not just the Post Office, because it would
inevitably involve Fujitsu, because if the court was going to make a decision in
respect of a ground 2 argument that included the rolled-up question who knew
what and when Fujitsu are an important player and those who work for them, who
include Mr Jenkins, who not only made witness statements for the purposes of
some of the trials but gave evidence certainly in the Misra trial and possibly
others, and that is out of the Post Office's hands. It was something the court may
remember was remarked upon in one of Fraser J's judgments, and although he
made clear that it wasn't within the remit of the litigation to resolve issues like that
they might have to have been resolved had there been individual civil trials, but
there weren't.

So, any argument that seeks to develop some or all of the kind of issues that
appear in those many paragraphs of Marshall's draft case are inevitably going to
consume investigatory time as well as, if we manage to do that by March, court
time. This is not me making an argument in terrorem. That's not the purpose; it's
the court would, with respect, have to invite each of those acting on behalf of the
appellants to say what their case is going to be on ground 2. Here we are in effect
at the end of December, or coming to the end of term, with a substantive hearing
lasting four to five days at the back end of March, and so there is a practical reality
about this. Holroyde LJ mentioned earlier asking Ms Busch to say what her case
would be. In all fairness to Ms Busch she probably doesn't know right now. If
Mr Marshall were here we'd know what it was, based on his drafting of the draft
case. But it's important, with respect, that the court doesn't make a decision in
respect of ground 2 without knowing the practical reality of what it is and what it
looks like.

The other issue, moving away from those practical matters, is this: of allowing
the three appellants, which has a knock-on effect to all but Mr Saxby's client in
arguing ground 2, what's its ultimate purpose? Does it have a different outcome?
No, if successful. Does it disable the court from making appropriate comments in
the course of a judgment on limb 1? No, if based on the evidence before it. What
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other means are there by which the three appellants can have, or whether they have
had in the past, these issues publicly vindicated? First of all this court if minded
not to accede to the application would be allowing the appeals on the basis of
conceded accepted failures to investigate and to make material disclosure on
grounds of limb 1, secondly the issues have already been publicly and very fully
canvassed in Fraser J's judgment, and thirdly some or all of the appellants are
likely to pursue future civil claims for malicious prosecution and so they will have
a further opportunity to see the civil remedy for anything not covered in the course
of the substantive appeals. So, if there is a public interest in exposing alleged
wrongdoing by a prosecutor, those factors have or will achieve it. As Mr Mably
acknowledges, at paragraph 45 of his very helpful submissions, the appellants'
interests and the wider public interest in ventilating these issues are themselves
limited, in circumstances where the court may well hold, based on the concessions
the Post Office has made, those convictions unsafe on another ground.

So, two points really; without proper definition of what ground 2 looks like the
court is not currently in a position to make a judgment about it. Will it require
fresh evidence? We don't know, but it's likely if questions such as when, why and
who, and what watershed events there are over the period of time we're talking
about, from 2010 through to the end of last year, almost a decade, are required to
be litigated, and (the question that we pose in our paragraph 26, at the end of our
document from last week) if an application for fresh evidence was required
whether it's likely the test under section 23 of the 1968 Act, is it necessary and
expedient in the interest of justice the question is would it be met, given its
conceded that there was an abuse of process in these appellants' cases, which is in
fact the single ground that the CCRC has referred, in paragraph 192 of their
statement of reasons under the heading "Decision to refer".

We come back to really where Ms Busch began addressing the court this
morning. We submit when one looks at the provisions of the overriding objective
in dealing with cases efficiently and expeditiously certainly now, without knowing
more, the impact on the listing and timetabling of these appeals and indeed
possible future appeals in this matter can't be known. I'm afraid that's the position
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 we find ourselves in. As I say, this is not for any purpose other than to assist the
court, but the court will understand from our side of the courtroom we have an
understanding of the material and the issues particularly that Fraser J had to
decide, and Fujitsu and Mr Jenkins lurking in the background are not issues that
can be ignored or avoided if that rolled-up question not only has to be asked but
has to be answered.

(Hushed conversation)

MR ALTMAN: One other thing (if my memory serves me, this is in the disclosure
management document): the disclosure exercise that the Post Office has embarked
on quite deliberately ends at 2013.

MS JOHNSON: The end of.

MR ALTMAN: The end of; thank you. Therefore if issues going beyond 2013 are to
be litigated that opens up a whole new raft of a disclosure exercise that the Post
Office will have to undertake.

LORD JUSTICE HOLROYDE: What is the point you're making about possible future
appeals by other people?

MR ALTMAN: Well, for example we know that Pamela Lock's case was referred very
recently by the CCRC, it is still considering a number of others, and it has recently
told us -- I think the last communication, or certainly the last communication I'm
aware of, is it was hoping to let us have the outcome of its decision in relation to
anything up to, I think, another 12 cases, potentially (I might be wrong) this
month, but we've heard nothing more since, and the court knows the numbers of
other potentially affected appellants. That's all I mean.

LORD JUSTICE HOLROYDE: I'm probably being slow, Mr Altman, but how does
that affect our management of these appeals?
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MR ALTMAN: It doesn't directly, but there may be a knock-on effect.

LORD JUSTICE HOLROYDE: Well, there may be a knock-on effect whatever we do.

MR ALTMAN: Yes.

LORD JUSTICE HOLROYDE: I'm afraid I just don't really see how it's going to help
us at all today to consider what might hypothetically happen in an unspecified
number of cases that may or may not ever be brought.

MR ALTMAN: You're right; it was just a point, and your Lordship's helped me throw it
away. Thank you very much.

LORD JUSTICE HOLROYDE: All right. Thank you very much. Anything else?

MRS JUSTICE FARBEY: Can I ask about the issue of vindication. As I understand it,
you say that the appellants could get vindication for instance via a civil claim for
malicious prosecution or through some other means than having ground 2
ventilated in the criminal courts. Does it follow therefore that it's your submission
that this court, the Court of Appeal criminal division, can have nothing to say
about vindication on ground 2 and that the public interest, the integrity of the
criminal-justice system and public confidence in the criminal-justice system can be
ventilated in the civil courts?

MR ALTMAN: No, my first point was that in allowing the appeals, if the court does, on
the concessions made in the majority of cases on limb 1 and in four cases
fact-specifically on limb 2 as well the court such comments as it wishes to deal
with the public interest and the vindication of not only the private interests of these
appellants' having their convictions overturned but also any comments the court
feels it right to make during the course of that process. So, I'm saying that the
court can have much to say if it wishes to do so.

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MRS JUSTICE FARBEY: And what do you say about paragraph 13 of Maxwell, public
interest, the integrity of the criminal-justice system and public confidence in the
criminal-justice system being the remit, or being a core feature, of ground 2 of the
abuse?

MR ALTMAN: Sorry, I'm struggling …

LORD JUSTICE HOLROYDE: Somebody seems to be launching a jet aircraft from

near the microphone.

(Hushed conversation)

LORD JUSTICE HOLROYDE: I think it's taken off!

MRS JUSTICE FARBEY: Maxwell, paragraph 13.

MR ALTMAN: Yes. I don't have it in front of me, and I tried to follow it as Ms Busch
mentioned it, but clearly there is a public interest. Ground 2, limb 2 is always
about the public conscience and whether a prosecution is an affront to the public
conscience. I agree that if the court wished to hear limb 2 arguments in order to
give it the ability to go as wide as it wishes to make comment on such argument as
it argued before it in terms of ground 2 that is entirely open to the court, because
it's your discretion. All I am saying is that if the court doesn't permit ground 2
arguments to be heard before it for all the other reasons that have been mentioned
that doesn't disable it from making such comments as it wishes in relation to limb
1, and the public interest. Those are my submissions.

LORD JUSTICE HOLROYDE: Mr Altman, there's one matter I just wanted to raise
about disclosure, but that's probably more for Ms Johnson, is it not, than for you.

MR ALTMAN: I'm very happy to sit down and pass the bat on to her.

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LORD JUSTICE HOLROYDE: Yes. Ms Johnson, early February is the date scheduled
for completion of disclosure, and my recollection, without checking back through
notes, is that at an earlier hearing you indicated that in reality much disclosure will
be complete by the end of this calendar year, with comparatively little to be added
in the early part of next year. Is that still the broad position?

MS JOHNSON: Yes, in broad terms it is. There's already been a tranche at the
beginning of this month, tomorrow is the second tranche for this month, and then
there will be one more, so that we abide by the court's direction. I'm not going to
say that the remaining trance his merely a wash-up (there may be a little more
meaty material in it than that), but it's certainly right to say that by the end of
tomorrow the majority of the material will have been disclosed, but I reiterate the
point that Mr Altman made: if any limb 2 argument is to deal with matters
post-dating the end of 2013 that has not been looked at as part of the disclosure
exercise, for obvious reasons. We were dealing with between 2000 and 2013,
which was the final conviction and when prosecutions stopped.

LORD JUSTICE HOLROYDE: Thank you.

MR JUSTICE PICKEN: Ms Johnson, can I just follow up on that? Looking at the

disclosure management document, it's paragraph 5 that defines the relevant period
as being 1999/2000 to 2013, but in paragraph 3 the point is made that up until
1 April 2012 POL was a wholly owned subsidiary of the Royal Mail Group. POL
generally ceased acting as a private prosecutor in 2013/14. Then it goes on to say,
"It therefore follows the majority of prosecutions of the appellants were
undertaken prior to the company's separation". So, is the point therefore quite as
stark as it might otherwise appear?

MS JOHNSON: Again, it depends what the ambit of any category 2 argument is. My
Lord is absolutely right that if we are dealing with fact- and case-specific matters
that will be dealt with in the ongoing disclosure, but if we are dealing with matters

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 that take us through the civil hearings, through the parliamentary proceedings and
so on and so forth then that's not been touched.

MR JUSTICE PICKEN: That's very fair. Thank you.

LORD JUSTICE HOLROYDE: Thank you very much, Mr Altman and Ms Johnson.
Mr Mably.

MR MABLY: There were two (Several inaudible words) it appears that on the first
question there is agreement between the parties. The short point perhaps to make
is that this court's practice of allowing appeals on one ground without resolving
other grounds is well established and widespread, and there's perhaps no need to
cite any authority for that proposition. There is no rule of law or practice that
requires all grounds to be decided, excepting that a court could not dismiss an
appeal without resolving all grounds properly put forward. In essence the reason
for this is that this court is deciding a single statutory question, which is whether or
not the conviction is unsafe, the way that the court approaches the question of
safety is a matter for the court, and where there is more than one ground of appeal
there will be several different routes to a finding that a conviction is unsafe; and
that remains the case even where the Crown or the prosecutor has made a
concession on one ground.

So, in summary it appears to be the position that the court can structure both its
approach to second grounds of appeal and structure the hearings in the appeal as
the court sees fit according with its own judgment. That's all I would propose to
say on the first question in light of the way that has developed.

In relation to the second question, what are the principles on which the court
should proceed, given that there's no entitlement as of right to have a ground
(Inaudible) there is perhaps a blank sheet of paper. In grappling with an
overarching principle what I put in my document was what matters is the interest
of justice, and that may be helpful to delve -- the interest of justice is so broad, but
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there are two matters of particular note. First, any assessment of the interests of
justice would have to be considered in the light of the court's statutory function,
which is to determine whether a conviction is unsafe. So, submissions that have
been put before the court in the written documents -- the court is not, of course, a
public inquiry; it doesn't have an open-ended jurisdiction to enquire in to
miscarriages of justice (Several inaudible words) the interests of justice are
coloured by the court's function of exploring and determining whether a conviction
is unsafe or not.

Secondly, even within that there are inevitably going to be a wide number of
factors that may arise in different cases in relation to the interests of justice, and I
really categorise them in three ways: first of all, factors relating to the efficiency of
the court's role, the overriding objective of the criminal-justice system and so on;
secondly, practical questions (certainly the ones I have identified don't appear to
arise in this case); and thirdly, wider considerations in relation to the legitimate
interests of the vindication of appellants and wider considerations in relation to the
administration of justice as a whole.

Just perhaps dealing with those in bullet-point form, in terms of questions of

efficiency it is of course the case that if the court decides that a conviction is
unsafe on ground 1 it is not necessary to resolve ground 2. Of course, it would be
open to the court to decide the case on both grounds, but it could decide the
statutory question on the first ground. The court would have to consider if a
conviction is found to be unsafe on ground 1 whether it would be, as the House of
Lords put it, undesirable and wasteful to go on to consider any outstanding
grounds. That has a tendency to prolong hearings, increase the court's workload
and lengthen judgments without any fundamental impact on the applicant of the
hearing. But, of course, in that context the court will always want to consider
whether the outstanding ground is complex or whether it can be dealt with
relatively simply. Plainly in the present case there is a degree of complexity to
ground 2, and the answer in law to the question that has been postulated, what
does ground 2 cover, is that ground 2 currently looks like that which is set out in
the statement of reasons of the CCRC, because a ground has to relate to the
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CCRC's reasons and, as I understand matters, the court has not given leave for
ground 2 to go outside those reasons, nor have the parties sought to reformulate
the ground, even within the four corners of the statement of reasons. So, really it's
that document that articulates the scope of ground 2.

As to what it might look like, that would depend on the court granting leave for
further amplification and elaboration. As to the question of whether ground 2
should be looked at in generality in the first instance, I don't know the answer to
that. I'm not immersed in the case sufficiently. I don't know whether it can be
done within the four corners of the statement of reasons or whether it would be
easy to draw that bright line to categorise cases as to whether they fall one side of
it or the other. That's obviously a matter the court would have to consider; but it is
a matter within the court's control.

Just on a technical point, the question of admissions was raised. Section 10 of

the 1967 Act does apply to (Several inaudible words) that's the Criminal Justice
Act 1967; no difficulty in relation to that.

Then in terms of practical considerations, again, they probably don't arise in

this case, but if there were to be a retrial in the case the court may decide it's
desirable to resolve all grounds of appeal rather than having the grounds emerge a
second time after a retrial. The court may decide if an unresolved ground relates
to an important legal issue that it would be useful to resolve that, whether directly
or only through observations, to give guidance or to correct an erroneous practice
or to clarify a legal point, but, of course, in many cases the court decides not to do
that and to leave the point for another day.

On practical considerations there is the issue about further appeals, appeals to

the Supreme Court. Plainly if this court does not determine a ground of appeal it
cannot certify that the point of law to which the ground relates was involved in the
court's decision that there could be no onward appeal. Similarly if there were an
appeal to the Supreme Court in relation to the ground on which the court decided

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 the case and the Supreme Court were to quash a conviction, if there were
unresolved grounds left in the Court of Appeal the Supreme Court would have to
act under section 35 to either decide those grounds itself or to remit the case back
to the Court of Appeal. So, in some cases it may be that a court would want to
resolve all grounds before it to prevent the need to resort to section 35, but, as I
say, that appears to be academic in the case of the appellants currently before the
court.

Finally, on the wider considerations of the public interest and the appellants'
legitimate interests in vindication, I have made reference to reputational issues,
and, of course, prosecutorial misconduct is always a very serious matter that
affects the wider administration of justice in any case; and there is an argument at
least (and this is the point made by my learned friend Ms Busch) that there is a
wider interest in the public ventilation of these matters and to have the court
decide whether the prosecutor acted in such a way that he abused the process of
the court such that the convictions are unsafe.

LORD JUSTICE HOLROYDE: Can I just ask you to pause for a moment, please,
Mr Mably. We've been passed a message to say that Mr Orrett has lost his
connection with the proceedings.

(Hushed conversation)

LORD JUSTICE HOLROYDE: Perhaps it's best if we just rise briefly, Mr Mably, to
see if any solution can quickly be found. We'll just rise for the moment.

(A short adjournment)

LORD JUSTICE HOLROYDE: Yes, Mr Mably; thank you. Mr Orrett is now able to
hear us again. I think were he to have a speaking role between now and the short
adjournment that might be difficult, but I don't think that situation is going to arise.

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MR MABLY: Thank you. I was simply touching on the question of wider public
interest where prosecutorial misconduct is involved or at least alleged and the
wider interest in relation to the administration of justice that may arise in having
that matter publicly ventilated and in fact resolved in any particular case, but,
again, it's important to note in that regard the scope of the court is not open-ended;
it is directed at the statutory question only. That includes the fact that the court is
not concerned with and doesn't have the power to declare someone innocent; it is
simply looking at the question of safety. On the other side of the scales, of course,
the matter has been referred. The ground is properly before the court. Leave is
not required. The court may examine ground 2 and perfectly properly pursue it to
its statutory function.

Perhaps the final matter looking at the wider interests is of course something
that has already been raised, the interests of other cases, and that includes the
interests of the other appellants in the proceedings.

That is really a sweep of the matters set out in my document, all of which I
think have been addressed or articulated in some form by my learned friends.

LORD JUSTICE HOLROYDE: Thank you very much indeed, Mr Mably, and we
repeat our gratitude to the Attorney General for instructing you to assist the court.

Ms Busch, as it appears to us at the moment the only appellant's counsel who is

likely to want to reply to Mr Altman is you. That's not to shut others out; if
anybody else wishes to reply briefly after we've heard from you then we'll hear
them. But we think it's probably best, given that it's coming towards 1.00 pm, if
we adjourn now and ask to hear your submissions in reply at 2.00 pm, and we'd be
grateful to receive any assistance you can give us on two areas in particular: the
various points that have been made in general terms about what the scope of the
ground 2 argument would be and to what extent it would be going beyond
ground 1; and secondly the specific point that Ms Johnson has raised that if
anybody's envisaging any reliance on anything that happened after 2013 there may

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 well be an issue as to the present scope of the disclosure exercise. Those, I think,
are the topics on which we'd particularly welcome your assistance, but we'd be
grateful to hear from you at 2.00 pm, please. Our thanks to all counsel for the
submissions so far; we haven't forgotten the applications by the press, and we'll
come to those at the conclusion of the hearing. Thank you; 2.00 pm, please.

(The luncheon adjournment)

LORD JUSTICE HOLROYDE: It will be noticed immediately that Picken J is no

longer seated on the bench because instead he's appearing remotely, and I'll just
ask him to be good enough to say a word about that.

MR JUSTICE PICKEN: Yes. Everybody can hear me?

LORD JUSTICE HOLROYDE: Yes. Thank you.

MR JUSTICE PICKEN: Okay. Thank you. I should explain that (Several inaudible
words) I received a notification of somebody with whom I've had contact in the
last few days having tested positive for Covid, and as a result I'm taking the
precaution, having not actually been notified myself officially but I am aware of it,
of appearing now remotely. I (Several inaudible words).

LORD JUSTICE HOLROYDE: Thank you very much. Yes, Ms Busch.

MS BUSCH: Thank you very much. You asked me to address a couple of points: first
regarding the scope of ground 2, to what extent it goes beyond ground; and
secondly the issue about post-2013 disclosure. I'll try to answer that second
question first, by trying to emphasise what exactly it is that my clients are looking
for, which is (I've said this before, and I'll say it again) we are categorically not
seeking an open-ended fishing expedition, we're not seeking an equivalent of a
public-inquiry process and we're not seeking an open-ended process of
information- and evidence-gathering. In my submission, what's in issue in this
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case is not so much a matter of the evidence; it's a question of legal implications to
draw from the evidence. The vast majority of the evidence that relates to a
ground 2 case is already in and formed the basis for ground 1. That in a sense is
reflected in the Commission statement of reasons, though you'll see the
commission didn't draw an evidential distinction between the two; the question,
rather, was given the nature of the evidence, given the facts, whether that generates
a category 2 case. So, I don't think there is any issue about disclosure. In any
event I'm told by Mr Marshall that all that's in question is five or six additional
documents. The only point, I suppose, that may be in issue is matters disclosed
post-2013 that relate to that period, notably the Clarke advice, but in my
submission, there's absolutely no insurmountable obstacles relating to evidence or
disclosure that would prevent a G2 hearing.

Secondly, it was quite right to suggest, as the Attorney General did, that so far
as the shape of the case is concerned, with the greatest respect, there's a slight
element of unfairness. I'm raising that point, albeit that I have an answer to it,
because the purpose of today's hearing, as my Lord emphasised at the beginning, is
for us to attempt to assist the court by elucidating the principles which determine
whether or not the court should exercise its discretion in principle to allow
argument on G2, and it can't be right, in my submission, to say you can't make a
decision on that until you know in practice what the scope of the case will be. It
may be that that's an issue for further down the line, but today is concerned with
issues of principle.

Secondly, however, in any case, the advocate to the court was entirely right to
say as he did that we do know the scope of the case. It is essentially as set out in
the Commission's statement of reasons, and, as he quite rightly reminds
everybody, there's a requirement that the grounds of appeal should reflect
effectively the grounds put forward and in effect granted permission by way of the
Commission process. So, again, there's absolutely no insurmountable obstacle in
terms of evidence and disclosure, scope of the case; as I say, it's a question of law,
and it's not an opportunity for the Post Office to re-litigate all of the facts by
whatever it might be, calling witnesses for cross-examination and so on and so
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 forth. Most of the relevant evidence has been considered in very, very, very great
detail in the various judgments of Fraser J.

A related point to that is that it's important not to lose sight of the fact that the
ground 1 case can, I would hope, and should, be disposed of very, very quickly.
So, that leaves additional time for the G2 case, and, given that, as I say, it's
essentially submissions of law not additional evidence, with careful use of case
management powers and court time there's no reason why it shouldn't be
accommodated.

There seem to be various suggestions made by my learned friend Mr Altman

that there's effectively no difference between ground 1 and ground 2. That's
plainly wrong, for the reasons I've already given. One way of looking at it, I
suppose, is to say that ground 1 is essentially concerned with the relationship
between the appellant and the prosecutor. It's almost in the sense of a, perhaps one
would say, private issue) well, it's limited in scope at any rate), whereas ground 2,
as I've already emphasised in the light of Maxwell invokes the court's oversight,
effectively, of the powers of the executive, or in this case the Post Office. So,
they're very, very different and address different objects, and I've already said
several times there is a difference in that the upshot of category 1 abuse of process
is simply that there could not have been a fair trial, it doesn't say anything about
the innocence or otherwise of the defendants/appellants, whereas in ground 2, as
we've seen, the prosecution should never have been brought. So, there is a
fundamental difference, and indeed if there weren't why would there be two
separate categories of case?

I hope that's addressed your two questions; but another point is that relating to
the prospect of a malicious prosecution. Again, with the greatest respect to my
learned friend --

MR JUSTICE PICKEN: Ms Busch, I'm so sorry to interrupt. Just on the point (Several
inaudible words) which is that the second ground (Several inaudible words) and

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 the second ground would entail an enquiry as to what was or wasn't known by the
Post Office at particular times, albeit (Several inaudible words) the facts that
have already been traversed, but is it really just a question of law?

MS BUSCH: It's not a pure issue of law, of course not (obviously it involves issues of
fact), but the point that I make is in this case given that the vast majority of the
evidence is effectively in it's on that basis that the legal inferences as to whether or
not category 2 abuse is satisfied is the point that I make, and it's not necessary to
rehearse all of the facts and evidence that Fraser J considered in detail. Again,
should there be any doubt about this matter, I point to case management directions.
If the court takes the view that the appellants are overreaching themselves and are
trying, despite my saying that we're not, to open up a sort of open-ended
public-inquiry process, well, the court can say, "Oh no you don't", and we're very
amenable to that.

MR JUSTICE PICKEN: Thank you.

MS BUSCH: We want to argue these cases, and we will do so in co-operation with the
court, it should go without saying.

But then the next point is my learned friend Mr Altman's submission with
respect to the malicious-prosecution issue is, with the greatest respect, utterly
misconceived, for several reasons. First of all the concern, we all know, is delay.
Part of the Post Office's case, and indeed that of the other appellants, is that
proceedings should not be delayed given there's already been so much delay and
the convictions should be quashed forthwith. However, Mr Altman is now
suggesting that in fact there should be delay until the resolution of the
malicious-prosecution cases. So, whereas, at least on our case, all these issues
could be resolved in March the Post Office is now suggesting that we should wait
until further down the line and civil proceedings for malicious prosecution.

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LORD JUSTICE HOLROYDE: That's not, I must say, how I understood Mr Altman's
submission, Ms Busch. I understood him to be making a rather different point,
which was that if the court did not hear argument on ground 2 a different way in
which individual appellants might nonetheless achieve vindication would be
through a route of malicious prosecution if that were open on the facts of their
individual case. I look to Mr Altman to see if that was a fair summary of the point.

MR ALTMAN: It is, together with the other points I was making around that topic.

LORD JUSTICE HOLROYDE: Yes. So, I don't think Mr Altman was saying we have
to wait until something specific has happened. Mr Smith made a different point,
that we'd have to wait until after the investigation of Mr Jenkins had been
resolved, but that wasn't Mr Altman's point.

MS BUSCH: With respect, I did understand the point that Mr Altman was making, and
the issue of delay is now in play, his delay until the appellants are vindicated -- as I
understand it, Mr Altman's point is they could achieve some degree of vindication
in a malicious prosecution.

LORD JUSTICE HOLROYDE: I see. So, your point is if they deserve to be vindicated
why should they have to wait until the end of a civil process, which may take a
long time starting from now.

MS BUSCH: Exactly, and then, again, I would have thought it must be the case that the
ground 2, category 2 issue is relevant itself to the malicious-prosecution
proceedings. It's hard to imagine a finding on ground 2 would not have a bearing
on those proceedings and indeed might make them capable of being dealt with
more efficiently and effectively.

MR JUSTICE PICKEN: Ms Busch, you presumably also make the point that the pursuit
of civil proceedings would involve not just delay but also money, cost.

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MS BUSCH: Indeed, and I also make the point that was raised by Farbey J it is, again,
entirely inappropriate to suggest that for category 2 abuse, the prosecution should
never have been brought, which is effectively overseen by the criminal court,
should be resolved in civil proceedings. That totally goes against the spirit of the
passages from Maxwell that I cited.

The other point that I would make as well, if I may, is that, again, I respectfully
differ from Mr Altman's suggestion that the appellants could achieve some degree
of invitation perhaps by the court commenting in the course of its judgment on a
ground 1 case. Again, if that were the correct route would role would ground 2
serve? It's not going to achieve the objective. It's a rather odd set of
circumstances to envisage, but if the court were to comment in the course of
giving judgment on ground 1 that the prosecutions should never have been
brought, well, then that should lead to a finding on ground 2, category 2 abuse.

I did want to make a couple of additional points, not, I'm afraid, in any
particular order. Mr Mably said in both written and oral submission that we refer
to the usual practice of the court of if an appeal is dismissed on one ground not
going on to hear argument on the others. In the normal case that makes perfect
sense, because clearly a finding on other grounds would be academic, but that is
not this case. That's why in my opening submissions I emphasised the exceptional
nature of this case, and it's why, I submit, it should form an exception to the rule
that, if I can put it in somewhat colloquial terms, that a finding on one ground of
appeal will do.

If I may be forgiven, my extremely learned junior has sent me a very helpful

note with just a couple of additional points.

LORD JUSTICE HOLROYDE: Yes.

MS BUSCH: I don't want to forget them. (Pause) I think the other point that I need to
make -- and, again, it's a point that I had made before, but, just in relation to the
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 emphasis that is placed by the other parties on the efficiency side of the overriding
objective, of course efficiency and expedition is important, there's no doubt about
that, but what is overridingly important, of course, is justice being done and being
seen to be done, and I've already made the point that efficiency and expedition has
to be viewed proportionately, efficient and expeditious by reference to what end is
at stake, and if you proceed on a hypothetical basis, let's say, that justice could
only be done by allowing the appellants to argue ground 2, then plainly, in my
submission, it would be completely wrong to say, "Oh well, expedition trumps
that. Sorry". I respectfully submit that that's not an approach that the court would
take.

By way of a final point I would remind the court over and over and over again
of those relevant paragraphs in Maxwell of the essential role of the court in
maintaining the integrity of the justice system. Can that be said to have been
achieved in circumstances where, as we say, the Post Office can dictate the
manner in which the proceedings are run by conceding an appeal on one ground
and leaving outstanding what we say is a hugely important issue of principle that
directly affects my clients' rights but has broader ramifications, because, as I say, it
concerned the integrity of the justice system? I leave it to that, subject to say I
invoke yet again the court's powers of case management. If it's doable, if it's
practicable, then it can be done, especially given the fact that very little time and
effort should be taken up on the ground 1 case. Those are my submissions.

LORD JUSTICE HOLROYDE: Thank you very much. Somebody has kindly arranged
for the case of Stromberg(?) to be placed before us. I'm not encouraging
submissions about it, but I'm not quite sure who wanted us to see it.

MR MOLONEY: It's simply referred to in our skeleton argument, my Lord.

LORD JUSTICE HOLROYDE: Oh, I see. All right. Thank you very much,
Mr Moloney. I'll just ask if Picken J wants to raise any questions of you,
Ms Busch.

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MR JUSTICE PICKEN: I don't, thank you.

LORD JUSTICE HOLROYDE: Thank you very much indeed.

MS BUSCH: Thank you.

LORD JUSTICE HOLROYDE: We did indicate that if anybody else felt they should be
permitted to reply we would be willing to hear them. Does anybody want to add
anything? No? Thank you all. We're very grateful. We'll just rise to consider
this. Because of the need to speak to Picken J at a greater distance than would be
normally the position here it may just take us a few minutes, but we'll return as
soon as we can.

(Judgment given)

LORD JUSTICE HOLROYDE: Unless anybody wishes to raise any matter we may
have overlooked I think the next stage will be for us to turn to the two press
representatives who have applications to make. So, I'll just pause in case anybody
wishes to raise anything. (Pause) No? Thank you.

Then, Mr Witherow, I hope you're still able to hear us.

(Hushed conversation)

MR WITHEROW: Yes, thank you.

LORD JUSTICE HOLROYDE: Is there anything you want to add to what you have
said previously?

MR WITHEROW: Yes, please, my Lord. Thank you. My request is for five

documents, as you're aware. I'd like to start by talking about the Clarke advice
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 disclosure note, which is filed by the Post Office in response to Nick Wallis's
application. I understand that the disclosure note does not reveal any more of the
Clarke advice but provides crucial context as to how it came to be involved in
these proceedings and how it was disclosed to the Criminal Cases Review
Commission. I would like to make clear my application is in no way an attempt to
receive the contents of the Clarke advice by different means following the recent
judgment.

LORD JUSTICE HOLROYDE: Mr Witherow, can I just interrupt for a moment. The
document you're now talking about is, I think, one of the documents that
Mr Altman told us has already been made available to Mr Wallis, and the Post
Office has no objection to it being made available to you.

MR WITHEROW: Thank you. I have been made aware by email in the interim since
those comments were made in court that the Post Office does not believe that the
contents of the Clarke advice disclosure note are publishable. Of course, as part of
my application I'm asking for the supply of the documents in order to publish from
them, and that is the reason that I made my submissions in this way. Of course, it
was my expectation that the position you just described would be the one taken by
the Post Office, and perhaps Mr Altman could clarify that following what I have to
say here.

LORD JUSTICE HOLROYDE: Yes. Thank you. We'll hear from him shortly.

MR WITHEROW: So, given that understanding of the Post Office's position, I shall
continue. The way the Clarke advice was disclosed continues to be an important
part of these proceedings. We heard earlier Ms Busch saying that the document
and its late disclosure was at the centre of her submissions for the category 2
arguments to be heard, highlighting that the Criminal Cases Review Commission
had not had sight of the Clarke advice. She further argues that these matters
should be publicly ventilated, which of course (Inaudible) in the broadest terms.
Mr Moloney asked who knew what in the organisation, when they knew it and

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 why it wasn't disclosed, raising the question of whether there may have been
deliberate non-disclosure in this case. These are matters, of course, of the utmost
public interest, in which the Clarke advice disclosure note would support the
public's understanding of the case and our reporting of it.

You'll see that I've also applied for documents including the provisional
grounds of appeal for two of the postmaster appellants and an appellants' note filed
by the barristers representing three postmasters. I'd refer the court to the criminal
Practice Directions 5B, 12 and 13, which say a document treated by the court as if
it had been read aloud in public, though in fact it has been neither read nor
summarised aloud, should generally be made available on request and documents
likely to fall into this category include skeleton arguments and written
submissions.

Finally, I would just point out that the court and the parties have all repeatedly
made commitments to open justice in this case. It is a case that unfortunately has
over many years involved repeated allegations of cover-ups and failure to produce
information on request (Inaudible) damaging the reputation of the Post Office and
other associated parties. The press are the eyes and the ears of the public in these
proceedings, and therefore I would humbly submit the court should err towards
supplying these documents and written submissions that the courts will rely and
have already relied on in their judgments.

LORD JUSTICE HOLROYDE: Do you want to say anything, Mr Witherow, about the
references in the rules to contemporaneous reporting, bearing in mind that we're
dealing today with issues of legal principle and nothing else?

MR WITHEROW: Yes. Thank you. I think it's fair to say that there has been some
confusion from the press representatives reporting on this case about how and
when documents of different status would be released to us. In previous cases,
including the group action, there was a much freer flow of documents, for example
skeleton arguments and written submissions, but in these proceedings, I think

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 perhaps because of the difficulties caused by the disclosure of the Clarke advice
and the potential contempt that flow of documents has been less easy to manage,
and it has not been clear throughout to members of the press exactly what the
correct course for receiving these documents, which in many other cases are
handed over without the requirement to needlessly use court time to make
applications. The release of documents and the way that the court wish to do it
was outlined more clearly following the application from Nick Wallis, and it has
taken some time for me to consider what was said there and talk to my own legal
advisers before making this application. I think that probably covers my point.
We have found it difficult to report any of what has been provided to the court in
written submissions because of this roadblock.

LORD JUSTICE HOLROYDE: Thank you very much indeed, Mr Witherow. That's
very helpful. I'll turn next to Mr Wallis. Mr Wallis, do you want to say anything
on this?

MR WALLIS: Only to say on the point about skeleton arguments I usually find that one
gets caught in a request for skeleton arguments once proceedings have started and
the skeleton arguments are either mentioned in court or referred to in court they
are handed over without any direction from the court by the parties without demur,
and I have requested those arguments, indicated that I would be requesting the
arguments, the way I'd like to receive them, and I have not yet received them.

LORD JUSTICE HOLROYDE: All right. Thank you very much indeed. Mr Altman,
do you want to say anything about this? You said a little bit earlier this morning,
but I rather stopped you by indicating that we wanted to postpone this until the end
of the day.

MR ALTMAN: Yes, only that the two documents that Mr Witherow wants access to we
have no objection to, in the same way that we have provided them to Mr Wallis,
but it's access; it's not publication. They've not been read to the court or treated as
if they have been read to the court, the two documents I mentioned earlier. It's

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 access that allows Mr Witherow the same ability to read and understand as
Mr Wallis has had the content of those documents but without more. If there
comes a time, as the court made clear today and indeed on the earlier occasion,
that the content of any of the relevant documents that the press is interested in
should be published then that can be made clear at that point in time, but, as your
Lordship put it this morning, it's jumping the gun.

Insofar as Mr Wallis is concerned we have no objection to him seeing the

skeleton submissions that we submitted to the court for the purposes of this
argument.

LORD JUSTICE HOLROYDE: That's the skeleton for today?

MR ALTMAN: The skeleton for today, dated 11 December; and, again, access not
publication, unless the court took the view that it was either read into the record or
should be treated as such.

LORD JUSTICE HOLROYDE: Yes. I don't know if Picken J wants to raise anything.

MR JUSTICE PICKEN: No.

LORD JUSTICE HOLROYDE: Thank you very much. I don't know if any other
counsel wishes to say anything on this. (Pause) No? Well, thank you all. We'll
have to rise again to consider these applications, and, again, I'm afraid it may take
a little bit longer than we would normally take, but we'll return as soon as we can.
Thank you, all.

(Judgment given)

LORD JUSTICE HOLROYDE: We repeat our thanks to all. We've been greatly
assisted by these submissions. Thank you.

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 (The hearing concluded)

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Epiq Europe Ltd hereby certify that the above is an accurate and complete record of
the proceedings or part thereof.

Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE

Email: [email protected]

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