Does Court of Appeal Horizon judgment scupper convicted murderer’s innocence claim?

An absorbing and, at times, testing four days was spent last month looking into the beautifully ornate Court 4 at the Royal Courts of Justice in London, writes Neil Wilby.

Held remotely, of course, in this virus epidemic era, it was a Court of Appeal Criminal Division hearing of forty-two cases remitted by the Criminal Case Review Commission, following the outcome of what became widely termed as ‘The Post Office Group Litigation’: A class action brought in the High Court, by over 500 claimants, against the organisation owned by UK Government Investments and run by the Department for Business, Energy and Industrial Strategy.

Formerly part of the Royal Mail Group, Post Office Ltd (“POL”) became independent in 2012. They repeatedly claimed that their Fujitsu-developed Horizon software system was not faulty and the ‘institutional obstinacy or refusal to consider’ that it might be flawed was highlighted by the trial judge, Mr Justice Fraser.

Characterising this stance as ‘the 21st-century equivalent of maintaining that the earth is flat’.

The criminal prosecutions by Post Office Ltd, against its sub-postmasters, were described as ‘aggressive and, literally, dismissive’. No recognisable investigations by the specialist POL fraud team took place and crucial disclosure of documents was routinely withheld from those accused of fraud or theft.

During the High Court hearings POL attempted, in desperation, to remove the judge by way of an application to recuse himself. It was, unsurprisingly, dismissed.

At the conclusion of the final hearing of the claims, more formally known as Alan Bates and Others v Post Office Ltd (read in full here), sixty-one applications were made to the criminal justice watchdog by former sub-postmasters, or managers or counter staff in Post Office branches, who had been convicted of, or who had pleaded guilty to, theft, fraud or false accounting in cases where the Post Office was the claimed victim.

The CCRC submitted that there was new evidence concerning (i) failings in the Post Office’s Horizon computer system and (ii) the response of Post Office Ltd to those failings which was relevant to the safety of their convictions.

Those post-trial applications took the total up to seventy-five since March 2015.

As of 22nd January 2021, the CCRC had referred the convictions of 51 of the Post
Office applicants to the appropriate appeal court on the basis that the
prosecutions amounted to an abuse of process. The convictions in six of these
cases had previously been quashed and another thirty-nine of the appeals were upheld and the convictions quashed earlier today (23rd April, 2021).

The CCRC decided to refer the cases of the Post Office applicants because, in
light of the findings of the High Court in what are termed as the “Common Issues” and “Horizon Issues” judgments, it was satisfied that there was a real possibility that the Court of Appeal would conclude that it was an abuse of process to prosecute these cases and that the convictions are, accordingly, unsafe.

In the CCRC’s view, the key points were (and still are):

  1. 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.
  2. That the Post Office had failed to disclose the full and accurate position regarding the reliability of Horizon.
  3. That the level of investigation by them 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 criminal justice watchdog concluded that the reliability of Horizon data was essential to the prosecution and conviction of those applicants and that, in the light of the High Court’s findings, it was not possible for the trial process to either be fair and/or was an affront to the public conscience.

The ‘real possibility’ test that the relevant appeal court would overturn the convictions was, therefore, met.

The Court of Appeal, very largely, agreed with the watchdog and commended them for their work on the applications to them. Dismissing only three of the cases, all of which the Post Office had opposed, almost from the moment the CCRC referred them back to the appeal court.

This is an extract from the judgment of Lord Justice Holroyde, sitting with Mr Justice Picken and Mrs Justice Farbey.

“The failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court.

“By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, Post Office Limited effectively sought to reverse the burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred.

“Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion the asserted reliability of Horizon was, on the face of it, reinforced. Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.”

The CCRC say that they continue to receive applications from new Post Office applicants and currently has 20 cases under consideration.

In December, 2019, Robin Garbutt made his third application to the CCRC in a bid to overturn the jury verdict that he bludgeoned his wife, Diana, to death, in what is known as The Melsonby Post Office Murder. It took place in the living quarters above the village store in March 2010 where Robin struck three blows to his wife’s head, with a rusty iron bar, whilst she lay sleeping.

Following the trial at Teesside Crown Court that spanned March and April, 2011, an appeal by Garbutt to the Court of Appeal Criminal Division was dismissed in May, 2012. As were the first and second applications to the CCRC, made in 2015 and 2017.

There is nothing unusual or sinister about this pattern; convictions are overturned, with troubling frequency, where such persistence has been necessary to persuade the CCRC to refer a case back to the Court of Appeal. Robin Garbutt has steadfastly maintained his innocence since the day his wife was murdered. Even though he fell under suspicion shortly after the first two police officers arrived on the scene.

In July, 2020, Garbutt’s legal team made what is described elsewhere as an addendum to the third CCRC application, concerning the Horizon software faults and their alleged impact on the safety of his murder conviction. An issue never raised previously either before, during or after the trial. Or, at the Court of Appeal, where the single permitted ground of challenge was another matter concerning availability at trial of Post Office Ltd records of cash transfers to and from the Melsonby shop (read more here).

On all information available in the public domain, including scrutiny of the regular outpourings of Robin’s active and vociferous campaign team, and their supporters, it appears that Horizon software failings did not form part of any previous challenge.

To the author of this piece, having spent approaching 600 hours investigating the Garbutt innocence claim, a Horizon ground of appeal certainly came as a surprise. Particularly, having read the numerous and lengthy judgments handed down by Mr Justice Fraser in the consolidated civil claims against the Post Office. Now even more so, having sat through the recent Court of Appeal hearings and read the consequent judgment of the three law lords.

The facts of those sub-postmaster (or sub-postmistress) claims differ markedly from the circumstances at the heart of the killing of Diana Garbutt. Not least, because the reason given to police for the missing money, amounting to over £16,000, is that it was taken at gunpoint by armed robbers. Software glitches were not in issue then and it is very difficult to see how they can be now.

The Court of Appeal’s hearing of the cases flowing from Mr Justice Fraser’s findings heard repeatedly that the abuse of those convicted arose from Post Office Limited’s dual role as investigator and, in effect, prosecutor in its own cause as victim. In so doing, withholding time and time again, crucial evidence about the known failures of the Horizon accounting software, first introduced at the turn of the century (the Legacy version) and whose architecture was substantially revised in 2010, a few months after the murder of Diana Garbutt.

A recent freedom of information request (read more here) revealed that the contemporaneous records of Post Office Ltd do not show any complaints made by Melsonby Post Office, regarding Horizon software, or cash shortfalls attributed to any other reason, in the year or so before the murder.

Indeed, the position of the defence at trial was the books balanced with the amount taken from the Post Office safe and shop till. An alleged robbery at the same Post Office, almost exactly a year earlier, had netted over £11,000 for those responsible. That crime remains unsolved.

Conversely, and perversely, in the words of the judge in his summing up, Robin Garbutt had ‘scant explanation’ for the extravagant, cash-fuelled, millionaire lifestyle that he and Diana had enjoyed over the previous twelve months. On one weekend alone, at picturesque Bolton Abbey, they blew £1,200. In total, they spent well in excess of £20,000.

The belated attachment of the Horizon software failings had, and still has, all the appearance of opportunistic bandwagon-jumping: The facts of the Melsonby case are so very different, as are, plainly, the findings of Mr Justice Fraser, the CCRC and now the Court of Appeal in terms of the legal test and the hurdles to be overcome, using this particular device as a ground to overturn the conviction.

The expectation, from this quarter, that the CCRC will roundly reject this ground of application remains high. If, of course, they have not already done so.

A significant clue being a very recent post on Robin Garbutt’s own Facebook page (maintained by his family and friends) from campaign leader, Jane Metcalfe. It signals a significant change of tack, insofar as Horizon is no longer blamed, but it is the evidence of the Post Office fraud specialist, Andrew Keighley, who gave expert evidence at the murder trial about movements of cash to and from the branch, that is now challenged, according to her.

Jane has previously invented two other armed robberies that she says took place before 2003, the year in which the Garbutts took over the business. That was proved, conclusively, to be yet another gratuitous embellishment to the campaign by way of disclosure to the author of this piece from both POL and NYP (read more here).

Those media outlets, and freelance journalists, that have enthusiastically accepted, and supported, whatever variation of the innocence claim that Jane, and the Garbutt family, have put forward must now be dreading the CCRC’s decision on the case. Notably, the iconic Private Eye magazine, The Justice Gap and The Metro newspaper all of whom have been repeatedly exhorted to correct their flawed reporting (read more here).

Such as the York Press, Northern Echo and Yorkshire Post have steadfastly declined to run with any news adverse to the campaign, however solidly grounded it has been (there are few firmer foundations than freedom of information requests) and regardless of its high public interest.

Readers of this website are respectfully invited to draw their own conclusions from those omissions.

Jane Metcalfe was offered right of reply. The email received no response.

Page last updated: Saturday 1st May, 2021 at 0605 hours

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.

Picture credits: Yahoo News India

© 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 Media, with appropriate and specific direction to the original content.

Published by Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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