This was a Referral in relation to post office workers who had been convicted of dishonesty broadly under circumstances where post office accounting software and procedures might have falsely reported omissions that they were not responsible for.
The Referral was not resisted by the Post Office on the main limb of the Appeal but there was a question whether the Court could hear ground 2 namely whether there was an abuse of process in bringing the cases at all.
The Court held that it should hear the Ground on the following basis:
Pursuant to s.9(2) of the 1995 Act, the appellants were to be treated as if they were appealing a conviction under the Theft Act 1968, and therefore as having been granted leave to appeal on Grounds 1 and 2. The court could not dismiss an appeal against conviction without first considering all the grounds of appeal, but it could allow an appeal on one ground without deciding, or hearing argument upon, another, R. v Berry (John Rodney) (No.3)  1 W.L.R. 7,  9 WLUK 131, R. v Mears (Victor)  EWCA Crim 2651, (2011) 108(45) L.S.G. 21,  11 WLUK 259 and R. v Sadeer (Mohammed)  EWCA Crim 3000,  11 WLUK 712 applied, R. v Mandair (Singh Mandair)  1 A.C. 208,  5 WLUK 246 followed. Under s.2 of the 1968 Act, it was the court's duty to resolve all matters which were necessary to determine whether the convictions were unsafe, even if an appeal against that conviction was not opposed by the appellant. Before finding a conviction unsafe, it was for the court to determine the extent to which it needed to hear submissions about a particular ground of appeal. Accordingly, if it decided to allow an appeal on Ground 1 at the substantive appeal hearing, that appellant was not entitled as of right to argue Ground 2 (see paras 28-34 of judgment).
However: The guiding principle was that the court had to act in the interests of justice. In deciding whether it was in the interests of justice for the court to determine a further ground, the relevant factors to be considered included:
(i) the appellant's rights under ECHR art.6;
(ii) the overall importance of the additional ground to the parties and the public, bearing in mind that the appeal would in any event be successful;
(iii) the furtherance of the overriding objective;
(iv) whether the additional ground (a) raised issues of particular importance in relation to the character or reputation of the appellant or of a witness; (b) related to an issue which should be resolved in order to maintain public confidence in the criminal justice system; or (c) raised a legal issue which might be important in other cases;
(v) the desirability of an appellant being able to seek vindication;
(vi) the time and expense involved in determining the additional ground;
(vii) whether determination of the additional ground (a) would give rise to delay in the instant appeal or other linked cases; or (b) was necessary in order to establish the proper basis on which to conduct a retrial; and
(viii) whether any party had a legitimate collateral reason for wishing to argue the additional ground. In each case, the court would need to balance those and any other relevant factors (paras 36-37).
The Court concluded that Abuse of the court's process was a matter of public interest, as well as being important to the parties, and should be considered at a public hearing.
Whereas Ground 1 raised the issue of whether it was possible for an appellant to have a fair trial, Ground 2 was concerned with whether they should have been prosecuted at all.
It was felt the public might feel that there was a material difference between the grounds and that a finding in the appellants' favour on Ground 2 added materially to a finding in their favour on Ground 1.
To allow an appeal solely on the basis that the manner of trial was unfair would not sufficiently vindicate such an appellant. There was a strong case for hearing argument on Ground 2.