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Neutral Citation Number: [2021] EWCA Crim 577 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Case No 202001558 B (and 41 other linked cases) Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/04/ Before: LORD JUSTICE HOLROYDE MR JUSTICE PICKEN and MRS JUSTICE FARBEY DBE
IN THE MATTER OF A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION **Between: JOSEPHINE HAMILTON & OTHERS Appellants
- and – POST OFFICE LIMITED Respondent**
Hearing dates: 22, 23, 24 & 25 March 202 1
APPEARANCES
Mr T Moloney QC and Miss K O’Raghallaigh appeared on behalf of the Appellants: Josephine Hamilton (202001558 B3), Gail Ward (202001559 B3), Julian Wilson (deceased) (202001561 B3), Hughie Thomas (292001562 B3), Jacqueline McDonald (202001563 B3), Allison Henderson (202001564 B3), Alison Hall (202001566 B3), Della Robinson (202001572 B3), Khayyam Ishaq (202001573 B3), David Thomas Hedges (202001574 B3), Damien Owen (202001577 B3), Mohammed Rasul (202001578 B3), Wendy Buffrey (202001579 B3), Kashmir Gill (202001580 B3), Barry Capon (202001582 B3), Wendy Cousins (202001584 B3), Lynette Hutchings (202001585 B3), Lisa Brennan ( B3), William Graham (202001591 B3), Siobhan Sayer (202001592 B3), Tim Burgess (202001593 B3), Pauline Thomson (202001594 B3), Nicholas Clark (202001595 B3), Margery Williams (202001987 B3), Tahir Mahmood (202001988 B3), Ian Warren (202001989 B3), David Yates (202001990 B3), Harjinder Butoy (202001991 B3), Gillian Howard (202001992 B3), David Blakey (202001993 B3) Ms L Busch QC and Dr S Fowles appeared on behalf of the Appellants: Tracy Felstead (202001565 B3), Janet Skinner (202001567 B3), Seema Misra ( B3) Mr S Stein QC and Mr L Orrett appeared on behalf of the Appellants: Scott Darlington (202001568 B3), Peter Anthony Holmes (deceased) (202001575 B3), Rubina Shaheen (202001576 B3), Stanley Fell (202001569 B3), Pamela Lock ( B3) Mr S Patel QC and Mr B Smith appeared on behalf of the Appellant: Vijay Parekh (202001583 B3) Mr B Gordon appeared on behalf of the Appellant: Dawn O’Connell (deceased) ( B3) Mr O Saxby QC and Mr B Irwin appeared on behalf of the Appellant: Carl Page (202001588 B3) Mr C Millington QC and Mr R Chand appeared on behalf of the Appellant: Neelam Hussain (202001590 B3) Mr B Altman QC, Miss Z Johnson QC, Mr S Baker QC, Miss J Carey, Miss C Brewer and Miss H Jones appeared on behalf of the Respondent: Post Office Legal Services
Approved Judgment
- In making its referrals, the CCRC gave close consideration to findings made by Mr Justice Fraser (“Fraser J”) in group litigation proceedings in the High Court between claimants representing about 5 8 0 SPMs, and POL. Fraser J gave a number of judgments, including in particular his judgments number 3, “Common Issues”^1 and number 6, “Horizon Issues”^2. He was not directly concerned with any criminal proceedings. However, as will be seen, his findings of fact have provided the factual basis of these appeals.
- The hearing of these appeals occupied four full days, and reference was made to many documents. We have read all of those documents, and have considered all of the submissions, though we will not refer to all of them. Although many of the points are of general application to all or most of the appellants, we bear very much in mind that we are concerned with forty-two individuals. Their cases require, and have received, individual consideration.
- We begin by summarising the relevant features of the Horizon system. We shall then refer to some of the findings made by Fraser J, to the procedural history of these appeals, and to evidence available to this court which was not available to Fraser J. Following the course taken during the hearing of the appeals, we shall summarise the submissions of the parties and our conclusions on general issues, before turning to individual cases. The Horizon system:
- The Horizon system is an electronic point of sale and accounting system. It was designed and installed by ICL, which was taken over by Fujitsu Limited in about 2002. Again, nothing turns on that change, and we shall simply refer throughout to “Fujitsu”. The system was piloted in 1999, and rolled out to branch post offices in 2000. Some of the appellants were already employed as SPMs long before the system was installed.
- The Horizon system provided a computerised system of accounting within branch post offices, and between the branches and POL. It was initially operated via a telephone line, but in 2010 that system was superseded by an online version, the first iteration of which was known as HNG-X. We shall refer to the earlier version as “Legacy Horizon”, to the later version as “Horizon Online” or “HNG-X”, and to the system generally as “Horizon”.
- By recording all transactions at a branch, Horizon calculated how much cash and stock should be held in the branch. SPMs were required to make a daily declaration of the amount of cash held at the branch. At the end of a trading period (initially one week, latterly a four- to five-week period), the SPM was required to complete a Branch Trading Statement: the branch could not enter (or “roll over” into) a new trading period without the SPM declaring to POL the completion of that statement.
- Once Horizon had been installed in a branch, the SPM was obliged to use it: it was not possible to opt out. POL operated a Network Business Support Helpline (“the Helpline”) which was provided and recommended to SPMs as a primary source of (^1) [2019] EWHC 606 (QB) (^2) [2019] EWHC 3408 (QB)
advice and assistance in respect of Horizon and in respect of errors and issues relating to their trading statements and accounts.
- There was no facility within the Horizon system for SPMs to dispute Horizon’s figures: they were required instead to contact the Helpline. If at the end of a trading period there was a discrepancy or shortfall between the cash on hand and the figures generated by Horizon, the SPM was required to make good any shortfall, either by putting in his or her own money (“settling in branch”) or by asking for the sum to be deducted from his or her future income (“settling centrally”). The prosecutions of the appellants for the most part began when POL auditors found such a shortfall.
- POL had a contractual right to seek recovery from SPMs for losses relating to branch accounts. The precise terms and legal effect of the relevant contractual provisions were considered in detail by Fraser J in his “Common Issues” judgment. For our present purposes, it suffices to say that the approach adopted in practice by POL was that if Horizon showed a shortfall, however inexplicable to the SPM, the SPM was required to make it good at the end of a trading period. Some of the appellants did so, using their own funds, or borrowing, to make good a loss for which they did not in fact accept responsibility. Others resorted to offences of false accounting in order to cover up a shortfall for which they did not accept responsibility and which they were unable to make good.
- Fujitsu held audit data (“ARQ data”), which contained a complete and accurate record of all keystrokes made by an SPM or an assistant when using Horizon. It was therefore possible to refer to the audit data to track every transaction recorded on Horizon.
- It eventually emerged in the High Court litigation that Fujitsu also had the ability to amend Horizon data in relation to a branch without the knowledge of the SPM concerned.
- Fujitsu recorded bugs, errors and defects in two types of document. If an SPM phoned the Helpline, and was referred to the section of Fujitsu which investigated such matters, a document known as a PEAK would be created. The PEAKs would feed into a higher- level document, a Known Error Log (“KEL”).
- POL had a contractual right to obtain any of the information about Horizon which was held by Fujitsu. Some of the appellants sought disclosure of ARQ data. However, Fraser J heard no evidence to suggest that either PEAKs or KELs had been disclosed by POL in any civil litigation or any criminal prosecution before the High Court proceedings. This court is in the same position. In the prosecutions of these 42 appellants, so far as we are aware, there was no disclosure of any such document. Concerns about Horizon:
- The initial roll-out of Horizon was delayed by technical issues. From an early stage of its introduction, some SPMs were experiencing, and reporting, discrepancies and shortfalls in their branch accounts which they considered were caused by faults in Horizon. The case later advanced by the claimants in the High Court proceedings, and by the appellants in these appeals, is that Horizon has throughout been affected by bugs, errors and defects, and that faults in the system caused it to overstate the amount of cash
comfort others, any perception that POL doubts its own systems would mean that all criminal prosecutions would have to be stayed. It would also beg a question for the Court of Appeal over past prosecutions and imprisonments.”
- In the event, several more years passed before POL did commission an independent review.
- In July 2012 POL appointed Second Sight Support Services Limited (“Second Sight”) to conduct a review into problems with Horizon. Second Sight concluded that in some circumstances Horizon could be systemically flawed from a user’s perspective, and that POL had not necessarily provided an appropriate level of support.
- From about March 2015 onwards, convicted SPMs began to make applications to the CCRC, seeking to challenge their convictions. In summary, they contended that evidence was now available concerning failings in Horizon and the response of POL to those failings, which was relevant to the safety of their convictions. The CCRC, aware of the civil proceedings between SPMs and POL, understandably took time to consider the applications and the judgments of Fraser J.
- Also from about 2015, POL ceased to conduct its own prosecutions, and the Crown Prosecution Service became the prosecuting authority in relation to alleged offences by SPMs and other POL employees.
- In 2017 a Group Litigation Order was made in the High Court litigation. Six lead claimants were identified, but the issues affected all the many hundreds of claimants. In Fraser J’s phrase, it was “bitterly contested” litigation. POL continued to assert that Horizon was a robust system and could be relied upon.
- At the end of 2019, shortly before Fraser J handed down his “Horizon Issues” judgment, the claimants and POL agreed terms of settlement.
- We should add for completeness that a public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently considering what went wrong in relation to Horizon. It will draw on evidence from Fraser J’s judgments and the experiences of affected SPMs and will identify what key lessons must be learned for the future. It expects to submit its findings and recommendations later this year. The terms of reference of the Inquiry do not include POL’s prosecution function or matters of criminal law.
- Fraser J, to whose industry we pay tribute, considered a mass of documents and heard oral evidence, both factual and expert, over many days. His “Common Issues” and “Horizon Issues” judgments, together with a Technical Appendix to the latter, amounted to more than 5 00 pages. It is unnecessary, for the purposes of these appeals, for this court to go into similar detail. We must however refer to some of his key findings. Findings made by Fraser J:
- In his “Common Issues” judgment, Fraser J found that POL, in demanding repayment of a shortfall shown by Horizon, misstated the factual and legal liability of an SPM to
make good any losses. In summary, it was contended in the civil litigation that the contract between an SPM and POL made the former responsible for all losses caused through his own negligence, carelessness or error and for losses of all kinds caused by his assistants. POL however repeatedly asserted that SPMs were liable to make good any losses incurred during their terms of office. In relation to the correspondence which POL had sent to one of the lead claimants, Fraser J at [222] expressed himself in strong terms: “There can be no excuse, in my judgment, for an entity such as the Post Office to misstate, in such clearly express terms, in letters that threaten legal action, the extent of the contractual obligation upon a SPM for losses. The only reason for doing so, in my judgment, must have been to lead the recipients to believe that they had absolutely no option but to pay the sums demanded. It is oppressive behaviour.”
- Fraser J’s conclusions in that judgment included the following: “1111. The Post Office describes itself on its own website as “the nation’s most trusted brand” …. So far as these Claimants, and the subject matter of this Group Litigation, are concerned, this might be thought to be wholly wishful thinking. Trust is an element of an obligation of good faith, a concept which I find is to be implied into the contracts between the Post Office and the SPMs because they are relational contracts. The Post Office asserts that its brand is trusted by the nation, but the SPMs who are Claimants do not trust it very far, based on their individual and collective experience of Horizon.” …
- Horizon was introduced in 2000, and from then onwards unexplained discrepancies and losses began to be reported by SPMs. Internal documents obtained in this litigation show that some personnel within the Post Office believed at the time that at least some of these were caused by Horizon. Some of these are identified at [542] above. The first document in that paragraph of this judgment dates from November 2000. At [41] I deal with part of an internal Post Office report from as recently as June 2014 – other parts have been redacted – that make it clear that steps had to be taken within the Post Office to “ensure consistency of accounts and enable a higher chance of detecting errors in accounts due to problems with Horizon”. The Post Office’s position in this litigation remains that Horizon is what is called “robust” and that none of the Claimants experienced shortfalls or discrepancies in their branch accounts due to problems caused by Horizon. Further consideration of this will occur in subsequent judgments and after the Horizon Issues trial.”
believed that they were exploiting the bug intentionally. Three possible solutions were proposed, and the note indicated the risks associated with each of those proposals: i) Solution 1 was to alter the Horizon branch figure at the counter to show the discrepancy. This would involve Fujitsu manually writing an entry value to the local branch account. The identified risk was: “This has significant data integrity concerns and could lead to questions of ‘tampering’ with the branch system and could generate questions around how the discrepancy was caused. This solution could have moral implications of Post Office changing branch data without informing the branch.” ii) Solution 2 was to “journal values from the discrepancy account into the Customer Account and recover/refund via normal processes”. The identified risk was: “Could potentially highlight to branches that Horizon can lose data.” iii) Solution 3 was not to correct the data in the branches and to write off the loss. The identified risk was: “Huge moral implications to the integrity of the business, as there are agents that were potentially due a cash gain on their system.”
- Unsurprisingly, Fraser J described this record as “a most disturbing document in the context of this group litigation”. He continued, at [429]: “It is a 2010 document and issues between the Post Office and many SPMs concerning the accuracy of Horizon had, for Legacy Horizon, gone on for a decade (2000 to 2010) and these continued under Horizon Online (introduced in 2010). Under “Impact”, some of the bullet points incorporate a summary of these issues. ‘• The branch has appeared to have balanced, whereas in fact they could have a loss or a gain.
- Our accounting systems [ie Horizon or the Post Office’s] will be out of sync with what is recorded at the branch
- If widely known could cause a loss of confident [sic] in the Horizon System by branches
- Potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon Data
- It could provide branches ammunition to blame Horizon for future discrepancies.’” [emphasis added by Fraser J]
- Another document relating to the same bug referred to a BBC documentary broadcast in February 2011, which reported on SPMs being unhappy about being pursued for losses on Horizon, and to “ongoing legal cases”. Fraser J concluded at [433] that those references showed that there was – “a distinct sensitivity within both the Post Office and Fujitsu about keeping this information to themselves in order to avoid a “loss of confidence” in Horizon and the integrity of its data. A less complimentary (though accurate) way of putting it would be to enable the Post Office to continue to assert the integrity of Horizon, and avoid publicly acknowledging the presence of a software bug.”
- Fraser J went on to note, in relation to a number of the bugs found in Horizon, that POL did not communicate the existence of a bug to all SPMs or even to SPMs whose branches were known to have been affected by it. He found POL’s approach to this in the proceedings before him to be “simply extraordinary”. He referred at [442] to a number of points which – “… all lead to the same conclusion in my judgment, namely that the Post Office ought to have notified, at the very least, all those SPMs whose branch accounts had been impacted by this bug that this had occurred, and that it had occurred as a result of a software bug. The fact that the integrity of Horizon data was a live issue at this time should not have influenced the decision to notify SPMs of a software bug. Further, the Post Office’s explanation in its submissions that SPMs had their accounts “corrected in the ordinary course” is not a suitable phrase, unless by “ordinary course” one means keeping the cause or reason for the correction secret and therefore hidden from the other party in the accounting transaction, namely the SPM.”
- The claimants’ case in the civil litigation was that POL should have referred to the audit data when there was a dispute between it and an SPM as to what had occurred in Horizon. The evidence made clear that POL did not use audit or ARQ data, which would have involved an expenditure of time and money in obtaining the data from Fujitsu, and instead consulted management data. Fraser J at [911] accepted that it was not necessary to consult the audit data in every case where a transaction correction was considered. But, he said, it should be consulted when there was a dispute between POL and an SPM about a branch account and about who or what was to blame, and he could think of no sensible reason not to consult the audit data in such a scenario. He continued: “The evidence in both this trial, and the Common Issues trial, where the Post Office cross-examined a number of SPMs on events in their branch accounts by using a variety of management information, other than the audit data, makes clear to me just how important it is to use the audit data, rather than other sources including management information. The management information is confusing, contradictory, has been shown to be wrong and requires numerous assumptions or a “take it from me”
has happened, and on numerous occasions. This applies both to Legacy Horizon and also Horizon Online. …
- I accept the claimants’ submissions that, in terms of likelihood, there was a significant and material risk on occasion of branch accounts being affected in the way alleged by the claimants by bugs, errors and defects. … …
- … In my judgment, there is a material risk that such a shortfall in a branch’s accounts was caused by the Horizon system during the years when both Legacy Horizon and HNG-X were in use, which is 2000 to 2010 and 2010 to 2017 respectively. … …
- … there is a material risk for errors in data recorded within Horizon to arise in (a) data entry, (b) transfer or (c) processing of data in Horizon in both the Legacy Horizon and HNG-X forms.”
- Fraser J found that POL did have access to the causes of alleged shortfalls in branches, including whether they were caused by bugs, errors and/or defects in Horizon, albeit that they would rely on Fujitsu to undertake any investigations. He further found, at [1001], that Fujitsu had the ability and facility to insert, inject, edit or delete transaction data or data in branch accounts, to implement fixes in Horizon that had the potential to affect transaction data or data in branch accounts or to rebuild branch transaction data, all without the knowledge or consent of the SPM in question. If Fujitsu injected a transaction into a branch account, “this would look as though the SPM had done it” (at [1004]).
- He concluded, at [975] and for the reasons which he explained in his Technical Appendix, that Legacy Horizon was - “not remotely robust. The number, extent and type of impact of the numerous bugs, errors and defects that I have found in Legacy Horizon makes this clear”. HNG-X was slightly more robust, but still had a significant number of bugs, errors and defects, particularly in the period 2010-2015. The robustness of HNG-X was therefore questionable, and prior to February 2017 did not justify the confidence routinely stated by POL in terms of its accuracy.
- These and other findings of Fraser J were considered by the CCRC, to whose work we now turn.
The CCRC:
- By section 9(1) of the Criminal Appeal Act 1995, where a person has been convicted of an offence on indictment in England and Wales, the CCRC may at any time refer the conviction to this court. The conditions for making a reference are set out in section 13 of the 1995 Act, which so far as material provides: “ 13.— Conditions for making of references (1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 … unless— (a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, … because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, … and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”
- We should note that only two of the appellants, Lisa Brennan and Harjinder Butoy, had previously appealed, unsuccessfully, against their convictions. It was however realistically and fairly accepted by POL that there were exceptional circumstances which justified the reference of all the cases to this court, notwithstanding that other appellants had not brought any appeal against their convictions at the time.
- By section 9(2), a reference of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the Criminal Appeal Act 1968 against the conviction. The reasons which the CCRC gave for referring these cases to this court therefore take effect as grounds of appeal, and we must proceed in accordance with section 2(1) of the Criminal Appeal Act 1968: “Subject to the provisions of this Act, the Court of Appeal – (a) Shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case”
viii) SPMs were at a significant disadvantage in terms of access to relevant information which might have enabled them to investigate and challenge alleged shortfalls. ix) SPMs had no way of disputing shortfalls within Horizon. x) POL routinely overstated the contractual obligation on SPMs to make good losses. xi) Remote access to branch accounts [i.e., by Fujitsu] was extensive, and some branch accounts were in fact altered without the SPM’s knowledge. It would appear in the accounts as though such actions had been carried out by the SPM.
- The three most important of those points, in the CCRC’s view, were: i) That there were significant problems with the Horizon system and with the accuracy of the branch accounts which it produced. There was a material risk that apparent branch shortfalls were caused by bugs, errors and defects in Horizon. ii) That POL failed to disclose the full and accurate position regarding the reliability of Horizon. iii) That the level of investigation by POL into the causes of apparent shortfalls was poor, and that the Post Office applicants were at a significant disadvantage in seeking to undertake their own enquiries into such shortfalls.
- The CCRC concluded, in respect of each of these appellants, that Fraser J’s findings gave rise to two cogent lines of argument in relation to abuse of process. It decided that there was a real possibility that this court would find that it had been an abuse of process to prosecute the appellants. It therefore referred the cases to this court.
- Although individual appellants formulate their submissions differently, the reasons given by the CCRC give rise in each case to two grounds of appeal: i) Ground 1: the reliability of Horizon data was essential to the prosecution and, in the light of all the evidence including Fraser J’s findings in the High Court, it was not possible for the trial process to be fair; ii) Ground 2: the evidence, together with Fraser J’s findings, shows that it was an affront to the public conscience for the appellants to face prosecution. Those grounds reflect two possible circumstances in which criminal proceedings may be found to have abused the process of the court. We shall refer to them as “category 1 abuse” and “category 2 abuse”. The grounds raise issues as to whether POL properly discharged its duties of investigation and disclosure under the Criminal Procedure and Investigations Act 1996 (“the CPIA”). Before considering the arguments, it is convenient first to set out the relevant legal framework. The legal framework:
- Section 3 of the CPIA imposes on a prosecutor a duty to -
“disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.”
- That duty continues throughout the criminal proceedings, and after conviction. We are primarily concerned with whether POL complied with that duty at and around the time of its prosecutions of these appellants. It is however important to note that in connection with the appeals, solicitors and counsel instructed by POL have undertaken a very extensive exercise in reviewing millions of documents in order to consider, and make, post-conviction disclosure. We place on record that, from all we have seen, that demanding exercise has been carried out diligently and thoroughly in accordance with a clearly-stated Disclosure Management Document. As a result, those now representing the appellants, and consequently this court, have all relevant documentation, including important documents which were not only not disclosed to the appellants at the time of their prosecutions but also not disclosed in the High Court proceedings before Fraser J.
- Section 23 of the CPIA requires the Secretary of State to prepare a code of practice containing provisions designed to secure, amongst other things – “(a) that where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued; (b) that information which is obtained in the course of a criminal investigation and may be relevant to the investigation is recorded; (c) that any record of such information is retained; (d) that any other material which is obtained in the course of a criminal investigation and may be relevant to the investigation is retained …” Such a code has been published and from time to time revised.
- Each appellant of course had the right to a fair trial pursuant to article 6 of the European Convention on Human Rights.
- The burden is on an accused to show, on a balance of probabilities, that he is entitled to a stay of proceedings on grounds of abuse of process. A stay of criminal proceedings is always an exceptional remedy, because “the majority of improprieties in connection with bringing proceedings can be satisfactorily dealt with by the court exercising its power of control over the proceedings” ( R v Togher and others [2001] 1 Cr App R 33 at [33]). We bear very much in mind the reminder given by this court, in the context of category 1 abuse, in D Limited v A and others [2017] EWCA Crim 1172 at [50]: “But applications for a stay of this kind cannot be judicially resolved by a process of ‘feel’ or ‘instinct’ …. It remains the
- In each of these appeals, the appellant relies on failures of investigation and disclosure which, it is argued, would have founded a successful application to stay the prosecution as an abuse if the relevant facts had been known at the time. As it was, prosecutions were pursued on the basis that the data produced by Horizon was accurate and reliable, and the appellants were advised by their legal representatives, and made their decisions as to pleas, in that context. It is therefore important to note that in R v Mullen [1999] 2 Cr App R 143 an appeal against conviction was allowed when the court, having summarised the facts, concluded at p157: “In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.”
- Where a defendant has entered an unequivocal and intentional plea of guilty, the resultant conviction will rarely be found to be unsafe. It is nonetheless possible for fresh evidence to be admitted and for an appeal to be allowed in such circumstances: see R v Jones [2019] EWCA Crim 1059 at [25]. In R v Togher and others it was held that a conviction may be quashed on grounds of abuse of process even when a guilty plea has been entered, though only if “it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand” (see paragraph [ 33 ]). In a case in which a defendant who has pleaded guilty appeals against his conviction on grounds of non-disclosure, the court must consider whether the plea was entered in ignorance of evidence going directly to his guilt or innocence. As it was expressed in R v Togher and others at [59], the question is whether the guilty plea was “founded upon” the irregularity of non-disclosure. In R v Early and others [2002] EWCA Crim 1904 at [18] the court emphasised the crucial importance of a prosecuting authority making full relevant disclosure before trial. It held that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not been made, be in a worse position than a defendant who, as a consequence of an application to stay the proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. The appeals to this court:
- In its Respondent’s Notice, POL accepted Fraser J’s findings that there were about 30 bugs, errors and defects in the Horizon system, which did not operate simultaneously and which affected both Legacy Horizon and Horizon Online, and that there was a significant and material risk on occasions of branch accounts being affected in the way alleged by the claimants by bugs, errors and defects. It also accepted that POL failed to disclose to SPMs and to the courts the full and accurate position in relation to the reliability of Horizon. In relation to its duties as a private prosecutor, POL accepted that in cases where the reliability of the ARQ data was essential to the prosecution case, it had a duty to assess that data; and that in view of the limitations on the extent to which SPMs could investigate discrepancies in Horizon, POL had a duty to investigate to ensure that the evidence was accurate and to pursue reasonable lines of enquiry raised by the SPM. It was further accepted that Fujitsu had the ability to insert, inject, edit or delete transaction data or data in branch accounts; had the ability to implement fixes in Horizon that had the potential to affect transaction data or data in branch accounts; and
had the ability to rebuild branch data. All of this could be done by Fujitsu without the knowledge or consent of the SPM.
- POL therefore accepted that in cases where the reliability of Horizon data was essential to the prosecution and conviction of the appellant, and where Fraser J’s findings showed that there was inadequate investigation and/or that full and accurate disclosure was not made, the conviction may be held by this court to be unsafe on grounds amounting to category 1 abuse. In such cases, POL did not resist the appeal on Ground 1.
- POL did not however accept that the same failures of investigation and disclosure were sufficient to justify a finding of category 2 abuse. In relation to the appeals which were not opposed on Ground 1, that concession did not mean that the appellant should not have been prosecuted, or that the prosecution was an affront to the public conscience or (to adopt another phrase used in other cases) an affront to the conscience of the court.
- POL realistically accepted that there were failures of investigation and disclosure in relation to many of the prosecutions. It effectively divided the appellants into three groups. Given the number of cases before the court, it will be convenient if we too sometimes refer to those three groups. In doing so, we intend no disrespect to individual appellants, and we do not lose sight of the differing circumstances of their respective cases.
- In group A, there are four appellants in respect of whom POL accepted that this court may properly find that the prosecutions were an abuse of process within both category 1 and category 2. They are Josephine Hamilton, Hughie Thomas, Allison Henderson and Alison Hall. POL contended that in each of those cases there were specific reasons why it was appropriate to make a concession as to Ground 2 as well as to Ground 1.
- In group B, there are 35 appellants in respect of whom POL accepted that this court may properly find that the prosecutions were an abuse of process within category 1, but resisted the appeals insofar as they are based on category 2 abuse. They are Gail Ward, Julian Wilson (deceased), Jacqueline McDonald, Tracy Felstead, Janet Skinner, Scott Darlington, Seema Misra, Della Robinson, Khayyam Ishaq, David Hedges, Peter Holmes (deceased), Rubina Shaheen, Damien Owen, Mohammed Rasul, Wendy Buffrey, Kashmir Gill, Barry Capon, Vijay Parekh, Lynette Hutchings, Dawn O’Connell (deceased), Carl Page, Lisa Brennan, William Graham, Siobhan Sayer, Tim Burgess, Pauline Thomson, Nicholas Clark, Margery Williams, Tahir Mahmood, Ian Warren, David Yates, Harjinder Butoy, Gillian Howard, David Blakey and Pamela Lock. In relation to the three deceased appellants, orders have been made enabling the appeals to be brought by members of their families.
- In group C, there are three appellants in respect of whom POL contended that there should be no finding of abuse within either category 1 or category 2. They are Stanley Fell, Wendy Cousins and Neelam Hussain.
- We shall say more about the cases within each of these groups later in this judgment. At this stage, consistent with what we have just explained, it suffices to note that in all but three of the 42 cases, POL concedes that there were material failures of investigation and disclosure, which meant that 3 9 of the appellants could not have, and did not have, a fair trial. Whilst it is a matter for the court, POL accepts that in those 3 9 cases it would be open to the court to find the convictions unsafe on the grounds of an abuse of
