Hamilton & Others v Post Office Ltd

On a conviction appeal, the Court of Appeal must determine every ground necessary to decide whether the conviction is unsafe. It may, however, allow an appeal on one conclusive ground without hearing or deciding a further ground. An appellant therefore has no right to argue an additional ground once the appeal will succeed.

The decision whether to determine that ground is discretionary and governed by the interests of justice. The court must balance the appellant’s Article 6 rights, vindication and reputation, the public interest and confidence in criminal justice, the overriding objective, delay, cost, court resources, retrial issues and any collateral motive. Serious allegations that a prosecution itself was abusive may strongly justify determination despite a successful fair-trial ground.

The Criminal Cases Review Commission referred 41 convictions of former Post Office employees for false accounting, theft and fraud. The prosecutions had commonly relied on Horizon accounting records, whose reliability had subsequently been challenged in civil group litigation.

For 34 appellants, Post Office Limited did not oppose Ground 1, alleging that a fair trial had been impossible, but opposed Ground 2, alleging that the prosecutions were an affront to the conscience of the court. Before the substantive appeals, the court determined whether an appellant could insist on arguing Ground 2 and, if not, the principles governing its discretion to hear it.

1. The court held that no appellant had a right to argue Ground 2 if the appeal would in any event be allowed on Ground 1. Under section 9(2) of the Criminal Appeal Act 1995, a Commission reference is treated as a conviction appeal under the Criminal Appeal Act 1968. Section 2 requires the court to allow an appeal if the conviction is unsafe and otherwise to dismiss it. It requires resolution of every matter necessary to that question, but not of an additional issue which cannot affect the result.

2. The court followed the established practice illustrated by R v Berry (no 3) (1994) 99 Cr App R 88 and R v Mandair [1995] 1 AC 208. The court retains the right and duty to regulate an appeal, including whether it needs submissions on every ground, their sequence and their detail. These are case-specific decisions.

3. The governing discretionary principle is the interests of justice. Relevant, non-exhaustive considerations include Article 6 rights; the importance of the further ground to the parties and public; the overriding objective; reputation and vindication; public confidence; wider legal significance; delay, expense and court resources; retrial; and collateral motives.

4. In these cases, the court would permit any appellant who wished to advance Ground 2. An allegation that a person should never have been prosecuted is materially different from an allegation that the trial was unfair. A decision on Ground 1 alone might not provide adequate vindication. The public interest in determining alleged prosecutorial misconduct was strong, and proportionate case management could prevent the appeals becoming an open-ended inquiry. Existing material, further disclosure and the court’s control of applications meant that Ground 2 need not cause undue or disproportionate delay.

• Court of Appeal (Criminal Division) — In [2021] EWCA Crim 21, the court determined preliminary questions concerning the grounds available on the conviction appeals and permitted argument on Ground 2 at the substantive hearing.
• Criminal Cases Review Commission — Referred 41 convictions to the Court of Appeal. By section 9(2) of the Criminal Appeal Act 1995, each reference was treated as an appeal against conviction.