Felstead & Ors v Post Office Ltd

Under rule 48.9, procedural safeguards for contempt proceedings arise only when a party makes a properly characterised allegation, or the court begins dealing on its own initiative with relevant conduct. A preliminary notification that disclosed material may have been misused, and the court’s limited inquiry into what occurred, do not themselves initiate proceedings. The Court of Appeal may adjourn possible civil contempt issues where they risk distracting from or delaying important appeals, particularly where they are unrelated to the merits. A later hearing may be assigned to a different constitution if the matter can be resolved without the original judges’ special knowledge.

These proceedings arose from Criminal Cases Review Commission references concerning convictions of 41 former sub-postmasters, sub-postmistresses and Post Office employees. During directions hearings, the respondent raised possible contempt after counsel disclosed or showed the Clarke advice, supplied for appeal purposes, to third parties. The court had to decide whether contempt proceedings had begun on 18 or 19 November 2020, whether rule 48.9 was engaged, and whether further consideration should be adjourned and heard by a different constitution. This judgment records the procedural ruling and does not determine the possible contempt or the merits of the convictions.

Disposition. No contempt proceedings were initiated on 18 or 19 November 2020. Further consideration of the possible contempt issues was adjourned until after the appeals had concluded, and all further hearings were directed to be before a different constitution.

1. Rule 48.9. Rule 48.9(1) identifies the circumstances in which the procedural requirements of the rule are triggered. The requirements in rule 48.9(2) and rule 48.9(4) arise only when a party or directly affected person makes an allegation within rule 48.9(1)(a), or when the court begins dealing on its own initiative with conduct within rule 48.9(1)(b). A mere reference to possible misconduct does not trigger those requirements.
2. Preliminary inquiry. The respondent’s notification that a disclosed document had been given or shown to a journalist did not amount to an allegation under rule 48.9(1)(a). The court’s limited inquiry into whether counsel wished to say anything did not mean that it had begun dealing with the conduct under rule 48.9(1)(b). Counsel volunteered the relevant information, and neither was required to speak.
3. Later developments. The email concerning Mr Marshall introduced a new matter on 19 November. The court made no finding against him in his absence. The possible civil contempt issue, including whether disclosure outside sections 17 and 18 of the Criminal Procedure and Investigations Act 1996 gave rise to a common-law duty and whether the Disclosure Management Document was effective, remained for a later hearing. It could not simply be left to the Bar Standards Board.
4. Adjournment and constitution. The possible contempt issues were unrelated to the merits of the appeals. There was a clear and substantial risk that addressing them would divert or delay determination of important questions of principle and the appeal timetable. That risk outweighed the desirability of immediate determination. It was in the interests of justice for the issues to be considered after the appeals and by a different constitution, because their resolution did not depend on special knowledge held by the original judges.

1. Court of Appeal (Criminal Division). The Criminal Cases Review Commission referred the appellants’ convictions to this court. The court gave written reasons for its procedural ruling in [2021] EWCA Crim 25. No lower-court decision or citation is identified in this ruling.