The Post Office and Lord Neuberger – Going upstairs

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Guest post by Paul Marshall, a barrister at Cornerstone Barristers

Marshall: Objectionable approach

It’s a big deal to invite a High Court judge to recuse themselves for apparent bias. Bias subverts the judicial function and thwarts justice. I’ve done it twice in 30 years, once with success, but the displeasure of Sir Peter Smith was singular and memorable.

From 2000, the Post Office engaged in an orgy of false prosecutions against its innocent postmasters for alleged offences of theft and false accounting. It did so on ‘evidence’ from its ‘Horizon’ computer accounting system.

Invariably that was the only evidence. Horizon was the unplanned progeny of a failed government PFI IT project, intended to run state benefits through 17,000-odd branch post offices then operated by the Post Office.

In 1999 ministers warned a select committee that the project carried for the government the risk of a “fiasco”. The salvaged bit of the abandoned grand project was used to computerise the Post Office’s outdated manual accounts.

The government owns the Post Office. By the time of Horizon’s introduction in 1999, hundreds of millions of pounds of taxpayers’ money had been expended but Horizon was known to be rackety.

There was nothing like it. It was thought to be the largest networked non-military computer system in Europe. The solution to known unreliability, cleverly conceived by the Post Office’s lawyers, was to impose on its postmasters a contractual duty to make good out of their own pocket accounting shortfalls – unless they could point to the source of any alleged error. Tricky – well actually impossible.

All worked swimmingly for the Post Office. There appeared to be a veritable postmaster-driven crimewave (stealing from themselves). But outside the Post Office, no one knew. Postmasters were routinely told untruthfully that they were alone in encountering problems with Horizon.

Vast numbers of those of good character and devoted service to the Post Office, sometimes over generations, were prosecuted and imprisoned on the say-so of bits of paper generated by Horizon and accepted by Her Majesty’s judges as statements of unchallengeable fact.

Legal safeguards on the use in court of computer evidence were abolished by the government on the recommendation of the Law Commission from 2000. Computer data, in many minds, is truth. Judges and lawyers are not alone in holding a sometimes sniffy view of technology used but not understood.

Lord Hoffmann, an otherwise noticeably clever judge, once famously declared that: “It is notorious that one needs no expertise in electronics to be able to know whether a computer is working properly.” That fallacy, hilarious were it not for the dreadful consequences of widespread acceptance, hit the judicial buffers in a spectacular way in the shape of Mr Justice Peter Fraser in 2019.

Some 550 former postmasters and former Post Office employees, driven half-mad by Post Office mendacity and the injustice of their blighted lives and wrecked hopes, brought civil claims against the Post Office. The litigation cost more than £150m.

Tracy Felstead, imprisoned aged 19 in 2002, got £17,000 out of the eventual December 2019 settlement after others had taken their cut.

Lee Castleton was subject of a civil claim in 2006. The Post Office obtained a judgement against him for £26,000. He was unrepresented by lawyers at his High Court trial. The judge ordered costs against him in favour of the Post Office of £321,000 – with the message ‘don’t mess with us, it’ll cost you’.

In November 2010, Seema Misra, believing in her innocence (rightly), collapsed with shock at the jury’s guilty verdict at her trial for theft. It was her son’s 10th birthday. She was eight weeks’ pregnant when imprisoned. Four times she had asked judges that the Post Office disclose its Horizon computer records, four times her requests were dismissed.

It took another 11 years for Mrs Misra to establish that not only that she did not receive a fair trial (failure by the Post Office to disclose Horizon records) but that she should never have been prosecuted at all.

Mrs Misra was one of 39 appellants whose convictions were quashed by the Court of Appeal in one go on 23 April 2020. Since then, there have been more than 30 more. There will be others, probably hundreds.

For many it’s come too late. Martin Griffiths, a mild-mannered and conscientious postmaster, driven to despair by the Post Office’s vicious pursuit of baseless allegations, walked under a bus in 2013. It’s the most widespread miscarriage of justice in English legal history and more extensive than the witch trials.

The English courts are well disposed to large institutions. For 20 years, the Post Office, as a historic private prosecutor, enjoyed a warm and frequently uncritical judicial reception. But by the time it came to the hearing of the group litigation trials in 2019, things were not going for the Post Office entirely as planned.

The designated trial judge, Mr Justice Fraser, gave the so-called common issues judgment against the Post Office. He concluded that it was required to exhibit good faith in performance of its contracts with its postmasters – and that was likely to be difficult.

He said the burden placed upon postmasters to show the source of problems with their account balances, that for 20 years had lain at the heart of the Post Office’s onslaught, was wrong as a matter of law. The Post Office didn’t like it one bit.

Given the Post Office’s own knowledge of bugs in Horizon and their effects which it had until 2019 successfully concealed and withheld from the courts, its postmasters and, from 2013, those it had prosecuted, there was a real risk that – when it came to the 2019 technical issues trial, known as the Horizon issues trial – Fraser J might very well lift the lid on a very unattractive can of worms indeed.

The question was, what was to be done? And here the story takes a startling turn.

During the Horizon issues trial, on the last day of evidence on 21 March 2019, when one of the Post Office’s witnesses was not doing especially well in holding the line, the Post Office issued a court application inviting Fraser J to recuse himself on grounds that he allegedly appeared to show bias in the common issues judgment.

Success would have meant that he would have had to withdraw and be replaced as trial judge. The likely effect was that the vastly expensive litigation would have derailed. The claimants may well not have been able to fund a re-match. The Post Office was hoping.

The application was handed to the judge just before he came back into court for the afternoon session, shortly before the conclusion of the evidence from the Post Office’s last witness.

The application was made not by counsel then engaged in representing the Post Office in the Horizon issues trial, but by the Post Office’s leading counsel in the common issues trial, together with Lord Grabiner QC, presumably brought in to add ballast in anticipated choppy seas.

A whiff of desperation perhaps and the last roll of the dice. The draft of the common issues judgment had been circulated 13 days earlier. So, what was the reason for the delay?

The application to remove Mr Justice Fraser was made with theatrical gravity by Lord Grabiner: “This is an extremely serious application to be making. It was made at board level within the [Post Office]…

“And I am not the only judicial figure or barrister that has looked at this… It has also been looked at by another senior person before the decision was taken to make this application.”

Two things are unsatisfactory. First, why say this at all? The only possible explanation is to suggest to the judge ‘we’ve gone upstairs so you had better be careful and know this is serious’. That is the only reasonable interpretation.

It was the view later expressed in different language by Lord Justice Coulson, a judge of the Court of Appeal: “Such a comment, presumably made in terrorem, should not have been made at least without proper explanation of its relevance.”

If the purpose was as unsubtle as it was unattractive, what has remained until now mysterious was the identity of the eminence grise consulted by the Post Office for the purpose of attempting to intimidate the trial judge.

In response to a long-awaited response to a freedom of information request made of the Post Office by Nick Wallis, the journalist who literally wrote the book on this scandal, the senior person was revealed to have been none other than Lord Neuberger, former president of the Supreme Court, sometime Master of the Rolls. Top banana.

There is nothing in principle wrong or improper with a retired former senior judicial figure being invited to give legal advice.

This is inferred from the phrase “looked at” – it can hardly have been a discussion over a coffee because that would not have justified “looked at”, a statement by Lord Grabiner that carried with it, impliedly, ‘looked at and has endorsed/approved’.

No objection could have been taken had the Post Office kept it to itself, rather than announcing to Fraser J that a ‘senior person’ endorsed its application. But announcing it had done so was objectionable, in the absence of disclosing who had been consulted.

Revealing then that Lord Neuberger had been consulted and endorsed the Post Office’s application would have been sensational and unthinkable. Dark murmuring was the favoured solution.

But the Post Office’s application was utterly misconceived and failed in every respect. That this is so is made clear by the written decision of Lord Justice Coulson that, unusually for such circumstances (an appeal against Fraser J’s refusal to accede to the invitation to recuse), extends to 51 paragraphs.

It is replete with words such as “misconceived”, “untenable”, “absurd” and “futile”. Striking phrases include “at no point… do they suggest that the judge erred in law or failed to ask himself the right questions”; “There is simply no basis for such a submission”; and “what the judge did was precisely in accordance with the law”.

Coulson LJ concluded, damningly: “The recusal application never had any substance.”

So what was the former president of the Supreme Court doing in endorsing such a Post Office strategy? He might now be asking himself a similar question.

Lord Neuberger’s role cannot be said to have been improper (and of course we do not know what he was told or what he said). But that is not the same as to say it is not objectionable.

The implicit idea of a senior retired judicial figure expressing the view that a sitting judge is so improperly conducting a trial as to merit applying for his recusal, is deeply distasteful.

On its face, it appears to do little credit to the judiciary or to Lord Neuberger. Look at it, for instance, from the perspective of someone wrongly convicted by the Post Office and thus the victim of state-inflicted harm by the miscarriage of justice.

By 2019, when the Post Office launched its ill-conceived, baseless and very expensive application to Fraser J to recuse himself, Tracy Felstead had waited 17 painful years for justice.

For the Post Office, money (from the taxpayer) was no object, but its victims were being outspent at every turn, and settled their claims for all their suffering for a pittance. This is ‘lawfare’. It should be stopped.

Paul Marshall is a barrister practising business and commercial law. While indisposed by illness from ordinary practice, he acted pro bono for three of the appellants in the Post Office appeals.

He was responsible, in the face of widespread opposition, for pursuing ‘second category abuse of process’ as a freestanding ground of appeal, an issue of decisive importance including in the Williams inquiry being elevated to a statutory inquiry.

With his solicitors, Aria Grace Law, and junior, Flora Page, he was responsible for eliciting from the Post Office the now infamous ‘Clarke advice’.  The views expressed are his alone.