Felstead & Ors v Post Office Ltd

Factual and Procedural Background

The appellants, forty-one former employees of the Post Office convicted between 2001 and 2013 of offences including false accounting, theft, and fraud, had their cases referred to the court by the Criminal Cases Review Commission. The convictions were largely based on discrepancies reported by the Horizon accounting system, later questioned for reliability due to faults overstating cash or stock shortages. Civil proceedings challenging Horizon's reliability resulted in adverse judicial findings and a police investigation into certain employees of the company maintaining Horizon.

The appellants' appeals raised two grounds of abuse of process: unfair trial (Ground 1) and affront to the court's conscience (Ground 2). Disclosure of unused material was conducted under a Disclosure Management Document (DMD), which restricted use of disclosed material solely to appeal proceedings and warned that unauthorized use could constitute contempt of court.

In November 2020, at a directions hearing before the present court constitution, it emerged that a legally privileged document ("the Clarke advice") disclosed under the DMD had been improperly provided by counsel for three appellants to a journalist related to one of the counsel. Further, one of those counsel also provided the document to a police officer. This raised potential contempt of court issues, which the court decided to adjourn for consideration until after the appeals concluded, directing that any further hearings on contempt be before a different court constitution.

The procedural history includes multiple hearings on 18, 19 November, and 3 December 2020, involving submissions by counsel for the parties and consideration of the proper procedure under Criminal Procedure Rules, particularly rule 48 concerning contempt of court. The appellants' appeals proceeded with fresh counsel following the withdrawal of one of the original counsel implicated in the disclosure.

Legal Issues Presented

1. Whether the unauthorized disclosure of the Clarke advice constituted a contempt of court.
2. The appropriate procedural steps and court constitution for considering allegations of contempt arising from such disclosure.
3. The scope and effect of any implied undertaking or duty limiting the use of disclosed material in criminal appeal proceedings not governed by the Criminal Procedure and Investigations Act 1996.
4. Whether the court or the respondent should initiate contempt proceedings in this context.
5. The procedural fairness and compliance with Criminal Procedure Rules in addressing alleged contempt of court by counsel.

Arguments of the Parties

Respondent's Arguments

• The provision of the Clarke advice to a journalist was a serious breach of the DMD and an implied undertaking at common law, potentially amounting to contempt of court.
• The Clarke advice was legally privileged and its unauthorized disclosure was improper, especially given ongoing police investigations referenced in the document.
• The court should hear from the counsel involved to determine whether to initiate contempt proceedings.
• Contempt proceedings could be dealt with summarily as a civil contempt, but fresh counsel might be appointed to assist the court.
• The public interest in compliance with the implied undertaking outweighs the respondent’s private interest, justifying court-initiated proceedings if necessary.

Counsel for Ms Page's Arguments

• Ms Page unreservedly apologized for disclosing the document to her journalist brother, who was bound not to publish unless the document was mentioned in court.
• The disclosure was a serious error of judgment but was not intended to cause public dissemination outside the court’s control.
• Summary contempt proceedings were inappropriate due to legal complexities about the existence and scope of any obligation not to disclose.
• The Bar Standards Board was the appropriate body to consider professional sanctions, and Ms Page had referred herself to it.
• Any hearing should be before a different court constitution to ensure fairness.

Counsel for Mr Marshall's Arguments

• No contempt proceedings had been initiated against Mr Marshall, although he had provided the Clarke advice to a police officer.
• He provided the document to the police in the interests of justice and suppression of crime, anticipating its eventual court disclosure.
• The respondent should decide whether to initiate contempt proceedings under rule 48; the court should not initiate proceedings on its own motion without clear cause.
• Procedural fairness was compromised by the respondent’s failure to comply with rule 48 requirements, including written applications and notice.
• Any further hearings should exclude evidence obtained before counsel were properly advised of their rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the sequence of events leading to the disclosure of the Clarke advice and the procedural steps taken thereafter. It determined that no contempt proceedings had been formally initiated on 18 or 19 November 2020, as the matters raised were preliminary and procedural safeguards had not yet been engaged. The court acknowledged the seriousness of the unauthorized disclosure, recognizing it as a potential civil contempt of court due to breach of an implied undertaking limiting use of disclosed material.

The court emphasized the paramount importance of allowing the appeals to proceed without distraction or delay caused by contempt proceedings unrelated to the merits of the appeals. It found that the issues of possible contempt should be adjourned until after the appeals concluded and be heard by a different court constitution to avoid any appearance of bias or conflict.

Regarding procedural fairness, the court analyzed submissions relating to the application of rule 48 of the Criminal Procedure Rules, distinguishing between summary and non-summary procedures for contempt. It concluded that the respondent did not make a formal allegation within the meaning of rule 48.9(1)(a) on 18 November and that the court’s inquiries did not amount to dealing with conduct under rule 48.9(1)(b) at that stage. The court rejected arguments that counsel’s rights were infringed by its preliminary questioning, noting that counsel were not compelled to answer and that the initial inquiries were necessary to understand the circumstances.

The court recognized the complexity of the legal questions concerning the existence and scope of any duty limiting use of disclosed material outside the Criminal Procedure and Investigations Act 1996 framework. It affirmed that these questions must be resolved by the court in due course, and that any contempt proceedings should be properly formulated with agreed facts and charges, ensuring procedural fairness to the parties involved.

Holding and Implications

The court ADJOURNED consideration of whether to initiate contempt proceedings against the counsel involved until after the conclusion of the appellants' appeals. It DIRECTED that any such proceedings, if commenced, be heard by a different constitution of the court to preserve impartiality and fairness.

The decision ensures that the appeal proceedings, which are of significant public and legal importance, proceed without undue delay or distraction. It preserves the procedural rights of the counsel potentially implicated in the unauthorized disclosure and underscores the necessity of strict adherence to procedural rules when dealing with contempt allegations. No new legal precedent was established; rather, the ruling applies existing principles to maintain the integrity of the appeal process and the administration of justice.