R v Jacqueline Falcon

Where a prosecution depends essentially on Horizon data and there is no independent evidence of actual loss, failures to investigate and disclose known reliability problems may make a fair trial impossible. The prosecution is then a category 1 abuse of process and any resulting conviction is unsafe, even after a guilty plea. Category 2 abuse is distinct. Where the CPS prosecuted in ignorance of information withheld by Post Office Ltd and did nothing improper itself, the prosecution is not an affront to the conscience of the court, although category 1 abuse may still be established. An appeal may therefore be allowed after an extension of time and admission of fresh evidence.

The applicant, a former post-office employee, pleaded guilty at Newcastle Crown Court to fraud and was sentenced in 2015. She later sought an extension of more than eight years, leave to appeal and permission to rely on fresh evidence concerning defects in the Horizon accounting system. The CPS did not oppose the applications, accepting that the case was dependent on Horizon data and that relevant information known to Post Office Ltd had not been disclosed. The central issues were whether the prosecution was an abuse of process, whether the guilty plea prevented an appeal, and whether the conviction was unsafe.

1. Outcome. The court granted the extension of time, granted leave to appeal, admitted the applicant’s recent witness statement as fresh evidence, allowed the appeal and quashed the conviction.
2. Horizon cases. The court adopted the established shorthand for a Horizon case: the reliability of Horizon data is essential to the prosecution and there is no independent evidence of an actual loss, as opposed to a Horizon-generated shortage. The principles governing abuse of process and the effect of a guilty plea had been explained in R v Josephine Hamilton and Others [2021] EWCA Crim 577, with subsequent cases including R v Margaret White and Others [2022] EWCA Crim 435.
3. Category 1 abuse. In Horizon cases, failures to investigate and disclose known problems with the accounting system may prevent the accused from having a fair trial. Such failures make the prosecution a category 1 abuse of process. A guilty plea does not necessarily bar an appeal where the plea was entered in ignorance of material evidence going directly to guilt and the conviction is unsafe.
4. Application. This was a Horizon case. The alleged loss was not supported by independent evidence. Post Office Ltd failed to investigate relevant explanations and failed to disclose its concerns about Horizon to the CPS. The applicant and her legal representatives were consequently denied material evidence, and she could not have a fair trial.
5. Category 2 abuse. The CPS had relied on information supplied by Post Office Ltd and had itself acted properly in seeking relevant information. The proceedings therefore did not fall within the exceptional category 2 abuse identified in cases prosecuted by Post Office Ltd. That conclusion did not prevent the separate finding of category 1 abuse.

1. Court of Appeal (Criminal Division): The court granted an extension of time, granted leave to appeal, admitted fresh evidence, allowed the appeal and quashed the conviction: [2024] EWCA Crim 311.
2. Newcastle Crown Court: The applicant pleaded guilty and was sentenced on 2 September 2015 to three months’ imprisonment, suspended for 12 months, with compensation and surcharge orders.