Altman Review II: Fundamentally sound but for the conflicts of interest, rigidity…
In today's post we start to get into some of the problems I think there are with Mr Altman's General Review...
Yesterday’s post dealt with how the General Review was represented to the Court of Appeal. The central conclusion of that review was that Cartwright King’s review of their own prosecutions was “fundamentally sound”. Two words for the higher-ups in the Post Office to cling to.
Altman’s conclusion is stated in the executive summary and was clearly also given in his interim review:
Overall, my view, as expressed in my Interim Review document is that Cartwright King's review is fundamentally sound, and I have not detected any systemic or fundamental flaws in the review process, or in the evidence arising from it, but because the review is a continuing process, and Post Office Ltd has a continuing duty of disclosure (not only in cases subject to the Criminal Procedure and Investigations Act 1996 but in practice should also adopt a similar or identical approach to past conviction cases falling within the current review), Post Office Ltd and Cartwright King must be prepared to keep under review, and reconsider, past case reviews and disclosure decisions. (para 5(xii))
That this was also the tenor of his initial review suggests this was the message conveyed to the Board and/or Audit Committee.
My own view is that that claim to fundamental soundness is not reflected in the detail of his report. At best it is an optimistic construal of the somewhat shakey evidence base before Mr. Altman. To be fair though, many of these problems are raised in his executive summary contained in paragraph 5, so in what follows I will try and discuss these to allow you to form a view as to why I think this overall judgement was either wrong or overly generous.
· The review seems to have got off to a shaky start, in August. According to Jason Beer KC, lead Counsel to the PO Inquiry, Altman picked up concerns about, the review, being “limited to Cartwright King cases, and English Cartwright King cases, and the temporal limit that had been applied. This had been limited to a period of only three years.”[1]
· Cartwright King were advised by Altman against adopting an, “over-rigid or robust approach, and must remain alive to changing circumstances and the need always to reconsider their stance,” (para 5 (xiii)). Altman never identifies precisely what it is he is concerned about here, but it is a theme reflected at more than one point in the report.
· There appeared not have been, “an analysis for reconciliation purposes of all Second Sight's spot reviews,” with the Cartwright King sift reviews. (Paragraph 5 (X ii). So Cartwright King had not compared the results of their own review with the one external benchmark available to them other than asking Altman.
· A second sift review was required part way through process suggesting the first review had been inadequate.
· There is an extended discussion of the counting and recording of reviews that suggest that Cartwright King have not been able to accurately record the numbers of cases reviewed. The extensiveness of the discussion suggests this very basic point is more than a clerical error.
· Altman appears to have raised concerns about individual lawyers within Cartwright King marking their own homework when conducting their reviews. He softens this by saying also, "there is benefit in Cartwright King and its internal counsel identifying and engaging in the review of impacted cases, as they are familiar with their case files and intimate with the process".[2] He recommended some corrective steps (para 5(iv)).
· There is some suggestion that these corrective steps, which had been recommended during his interim review (para 94), had not been adhered to; he noted that two solicitors were “involved in sifting some of their own cases” (para 93) and, “[s]ome of the barrister reviewers have occasionally had some input into cases.” (para 93) He again comforts himself and the Post office that these might be addressed by a re-sift by, “senior counsel”, although, “it would be better if those cases were not re-sifted by counsel if they were involved in prosecuting the case at trial or advising on any aspect of it.” (Para 96) He does not seem to require that the issue of involvement is fully adddressed.
· He also deals with the, “possibility of the suggestion of a commercial conflict of interest, given CK's professional relationship with POL and the fact that the very counsel and solicitors making decisions about POL cases are those who rely on CK and POL for this work.” And says this:
I have considered this issue with some care and, having met with representatives of CK, and having considered the many Advices and other material I have seen emanating from CK representatives, I have seen no evidence other than a professional and independent approach to this review. Consequently, on the material available to me, I would reject any suggestion that CK's solicitors and counsel cannot act, or have not acted, with an independent and professional approach to the Horizon issues, which have arisen, and to their review.
· Reading between the lines, this suggests there was some discussion, perhaps I surmise - but it is speculation - pressure, around this issue.
· It is notable he does not discuss in this context his concerns about Cartwright King employing an overly rigid approach, or Simon Clarke’s flawed reasons for suggesting the first January cut-off (see below). Both those phenomena could be explained by any lawyer at Cartwright King consciously or subconsciously struggling to mark the firm’s own homework.
· At no stage are the professional rules on conflict of interest discussed.
A less kind reviewer might have indicated that a review unduly limited in scope and time, carrying risks of over rigidity, and basic administrative errors; a review that failed to check their reviews against the external evidence, Second Sight’s review; and had substantial risks of conflict-of-interest at the individual and firm level, might be described as less than fundamentally sound. Moreover, his early advice on managing those conflicts had not been, it appears, been fully implemented.
There were some other problems, hub meetings lacked, “a person who is nominated to take responsibility for its management.” Hub meetings were set up to coordinate and manage disclosure within the Post Office. Importantly, Altman says,
I have noted from the product of the hub meetings that there appeared to be possibly greater focus on the fix to a problem rather than focus on actioning the issue for the purposes of disclosure. While the hub meetings may well serve a dual purpose, the central point of the hub meetings must not be overlooked or marginalised.
This is important because the CK sift concentrated purely on whether Second Sight Interim Report and the Rose Report need to be disclosed, itself a problem, whereas it is clear that the hub meetings, and the documentation from that which is reviewed, have, “produced information, which requires further investigation”. This may mean evidence that needed to be considered for disclosure:
they and other future issues may highlight other Horizon-based issues, which POL was previously unaware of. CK must keep an open mind to any new Horizon issues as they arise and if it is considered that any information emanating from the hub meetings affects, or might affect, any of the cases previously sifted or fully reviewed, then CK will have to remain alive to the possibility of broadening the criteria for the review and having to re-sift or re-review cases already considered, both past and pending cases.
All of this might cause one to pause whether a claim that the process was fundamentally sound was justified. A closer look at the tests Cartwright King deployed deepened my concerns about this. That will be be in the next post.
[1] Beer KC (n 2) 137.
[2] Beer KC (n 2) 138.