Has Horizon claim disappeared into the sunset?

In the week that marked the tenth anniversary of the conviction of Robin Garbutt, there have been three noteworthy developments, with a fourth to follow on shortly with the handing down of a Court of Appeal judgment, in a connected matter, on Friday 23rd April, 2021 at the Royal Courts of Justice: The Post Office Horizon software scandal that has led to a large number of former postmasters and postmistresses having convictions quashed.

I was present at all four days of the hearing of those appeals in March, 2021 writes Neil Wilby. Principally to observe what effect, if any, the outcome would have on the murderer’s long standing claim of innocence.

Garbutt was convicted on 19th April, 2021, at Teesside Crown Court, of murdering his postmistress wife, Diana. She was bludgeoned to death as she lay, apparently, sleeping in her bed in the living quarters above Melsonby Village Shop and Post Office in North Yorkshire (read more here).

A depressingly poor investigation by North Yorkshire Police had followed the murder (read more here) but there was still enough probative evidence presented for a jury to return a 10-2 majority verdict.

A miscarriage of justice campaign was formed soon afterwards by two relatives of Garbutt’s, his sister Sallie Wood and brother-in-law, Mark Stilborn, and an unsuccessful appeal was made to the Court of Appeal. Three law lords were emphatic that the conviction was safe.

Three applications have subsequently made to the Criminal Case Review Commission by Garbutt’s legal team. The ones made in 2015 and 2017 were unsuccessful. A third was made in December, 2019 amid a blaze of publicity (read more here). Much of it due to the efforts a later addition to the campaign team, Jane Metcalfe, a close friend of one of Garbutt’s life partners before he met, and later married, Diana.

Regrettably, Jane has been exposed regularly for what might be charitably termed as ‘decorating the truth’, her enthusiasm for winning Robin’s freedom blinding her, seemingly, to the stark reasons why the village shopkeeper remains a guest on the Category A wing of HMP Frankland (read more here).

Earlier this week, the press office at the CCRC confirmed that the third Garbutt application remains ‘under review’ and no decision, provisional or otherwise, has been communicated to the legal team representing Garbutt. They are solicitor, Martin Rackstraw, and Jim Sturman QC. Responsible for all three CCRC applications.

The reason for that enquiry was a post on the ‘Robin Garbutt Official’ website dated 8th April, 2021. It appeared to indicate that there has been some movement in terms of the CCRC making findings on that third application.

The post is attributed to Mark Stilborn, but easily recognised, in any event, by its muddled style and familiar syntax errors.

As is the the apparent failure to take on board the size and nature of both the evidential and legal hurdles that a CCRC applicant faces by way of the Criminal Appeal Act, 1995. A comment that could also safely be applied to Jane Metcalfe and Sallie Wood.

None of them have grasped that, for Garbutt’s conviction to be deemed unsafe, there has to be a reversal of the jury’s verdict, amplified forcefully by the trial judge; the ruling of the Court of Appeal; and the two previous decisions by the CCRC. All of whom found that the story of an armed robber (or robbers) who murdered Diana with a rusty iron bar, some hours before venturing downstairs armed with a gun (but not the piece of rusty metal), emptying the safe and till in the shop, leaving Robin unharmed and immediately free to raise the alarm, beyond belief.

Much of the publicity that accompanied the third CCRC application featured a new ground of appeal upon which the Garbutt campaign team pinned great hope: The aforementioned Horizon software was to blame for cash shortfalls identified during the murder trial by two expert forensic accounting witnesses. It undermines the prosecution case fatally, they say.

Now it doesn’t even rate a mention in the most recent case update, posted by the same campaign leaders who were so vociferous upon the subject just a year ago. To those adjacent to this case, including the author of this piece, that comes as no surprise at all: If robbers emptied the safe of £16,310, a sum that Garbutt told the jury tallied with the shop and post office accounts, it seems inconceivable that he now claims a software glitch has a bearing on his guilt.

The third development comes via a response to a recent freedom of information request. It is reproduced in full here:

“I am writing in response to your email received by Post Office Limited on 23 March, which I am dealing with under the terms of the Freedom of Information Act 2000 (“FOIA”).  
 
In your email you have requested the following information: 
 
Please disclose the following information by way of the Freedom of 
Information Act, 2000. 
 
1. The number of written complaints made by the Sub-Postmistress of 
Melsonby Post Office, and received by POL, where the terms ‘software faults’ 
or ‘Horizon’ or ‘shortfall’ formed part of the text of such complaints.  
 
2. Alternatively, the number of telephone complaints, where POL’s record of 
those complaints includes those same terms mentioned in para 1. above. 
 
3. The relevant period is 1st January, 2009 until 22nd March, 2010. 
 
4. A copy of the ‘Known Error Log’, in issue by Post Office Limited at 31st 
March, 2010. This document, which recorded faults in Fujitsu’s Horizon 
software, has been referred to repeatedly in proceedings at the Court of 
Appeal Criminal this week (commencing 22nd March, 2021). 
 
The difficulties in respect of passage of time, and the consequent possibility 
of data weeding, are recognised. It is hoped that, by keeping the request as 
compact as possible, this may assist the location of the information or in 
establishing that none existed. 
 
Whilst FOIA requests are, generally, to be regarded as applicant and motive 
blind, POL is aware of my journalistic interest in this particular sub-post 
office and its history. I am, of course, grateful to POL for past assistance and 
hope that this request can be fulfilled as efficiently and with the same co-
operation. 
 
Response

Post Office does not differential between complaints, general enquiries or notifications made in writing and those made by telephone by Postmasters.  We confirm that we do have a log covering the period you have identified, however none of the entries match the criteria you have provided. 

Regarding the additional request for a copy of the “Known Error Log” that you sent to us, following our acknowledgement letter, we will respond to this by 26th April.

Information Rights Manager 
Post Office Limited  – Information Rights Team 
20 Finsbury Street 
London EC2Y 9AQ ”

The obvious conclusion drawn from such disclosure is that Melsonby Post Office raised no complaints about cash shortfalls or Horizon software faults. No such faults were raised by Garbutt’s defence team at trial, or at the Court of Appeal, or in their previous two CCRC applications.

That may well be why this ‘new’ ground of application has disappeared into the sunset. Robin’s campaign team has been asked to provide clarification on this point. They have never taken up right of reply, previously. Preferring news outlets with a less searching and more accommodating approach to their claims.

Page last updated: Thursday 22nd April, 2021 at 1655 hours

Photo Credit: York Press

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.