The most fundamental question about the review is the test applied to decide whether evidence needed to be disclosed. Cartwright King concentrated on whether disclosure of the Second Sight and Helen Rose reports should be made. This, in my view, might well be too narrow an approach, but for now let’s concentrate on a more basic question: in reviewing cases during the CK Sift, were CK using the correct test to decide whether for any Horizon Online case, disclosure of those two reports needed to be made.
Altman’s answer is no but yes.
Let me explain.
Cartwright King wrote out their tests. And the tests they wrote out were, Alteman advised, the wrong tests for disclosure. They see it as a question of, “disclosure under the CPIA, the Code of Practice made thereunder, the Protocol for the Control and Management of Unused Material in the Crown Court, and the Attorney General's Guidelines on Disclosure.” And, they pose themselves the question,
“Had POL been possessed of the material contained within the Second Sight interim report during the currency of any particular prosecution, should / would we have been required to disclose some or all of that material to the defence?" It is that question that CK state has defined their approach to the issue.
In “the full reviews… counsel do not always limit themselves to making decisions on disclosure,” [my emphasis] and look at "a realistic prospect of conviction" for live cases, applying the test where some decisions “might, objectively, be regarded as generous,” to discontinue cases. In reviewing past convictions,
“counsel tend also to provide advice about what POL or CK's stance should be to possible appeals by offenders to the Court of Appeal, which must mean consideration of the "safety" of the conviction, thus the likely stance to any application for permission to appeal the conviction based on the disclosed material and/or to any substantive appeal, if permission is granted.[1] made it clear to CK in conference that they must be alive to changing circumstances. They must therefore not adopt an overrigid approach; each case must be approached on a case-by-case basis. [my emphasis again]
Notice here that what this seems to be saying is that counsel “tend” to (so sometimes, often perhaps, but not always) advise on appeal stances which implicitly (“must”) but not explicitly involve thinking about the safety of convictions. So he is reading into their review documents the application of a safety test in a proportion of cases.
Also, in this context Altman warns against over-rigidity. Furthermore, for full reviews,
“The instruction provided that it is not necessary to consider whether or not a conviction may be said to be "safe", which is a consideration for the Court of Appeal, appears to me generally to be ignored.”
So the instructions say ignore safety. He is saying the reviewers generally, implicitly ignore that instruction, so it’s okay. I don’t think that’s an argument consistent with a fundamentally sound review process. A basic requirement ofsuch a process would be documenting and applying the right tests to each case, particularly where something as important as the safety of a conviction is at stake. What he does not say I think is the correct test appears to be being applied to every case he has reviewed. [Notice too that to form this judgement he must be reviewing individual decisions, contrasting with his submission to the Court of Appeal, even if he is not opining on the correctness of each individual decision.]
We can get a sense that safety is important, and that Altman recognizes this, because elsewhere in the report there is a more explicit discussion of the obligations of PO in cases post-conviction. Here Altman says the following:
Following the conclusion of the proceedings, POL has a general common law duty to act fairly and to assist in the administration of justice.
….as there are (so far as I know) no appeal proceedings outstanding that relate to Horizon issues but POL has, in the special circumstances obtaining here, very properly acknowledged its duty to consider cases for disclosure, which is inevitably interlinked with considerations of the safety of convictions.[2]
He also points out that, as well as erroneously purporting to exclude a consideration of safety, PO is using the wrong test in another, perhaps more technical sense, using the “CPIA” test (which would guide disclosure obligations pre-conviction) although in substance he says this would make no difference, “it is hardly likely to be criticised for doing so”.
Overall, and this presumably helps him form the view that the review is fundamentally sound,
CK has tended also to advise on its likely stance to any application for permission to appeal, or to any substantive appeal, should permission to appeal be granted. That amounts to consideration of the safety of the conviction.” (my emphasis)
So we have the CK lawyers tending to advise in a way that amounts to considering safety even though they say they are not considering the issue of safety. This issue is absolutely critical to the whole process. It is the central question relevant to whether the review was fundamentally sound. Towards the end of his opinion he summarises the position as follows:
“Although CK points out that it is unconcerned with the question of the safety of convictions, there is an inexorable link between the disclosure decisions it makes and the view it might take towards possible appeals, based on its view of the strength overall of the other evidence in the case. It is right to observe that even where there has been non-disclosure in a given case that does not mean that any appeal based on it is likely to succeed. But CK must not adopt any over-rigid or overly robust approach to any possible appeals, and should be prepared to adapt to the circumstances of individual cases.”
I don’t know, it seems to me like the KC doth protest too much: Cartwright King are applying a test inexorably, implicitly, most of the time. Definitely, maybe. Moreover, the concern about being overly robust might suggest inflexibility in the application of the very safety test that they say they are not formally applying but Altman says they are applying most of the time. I think any suggestion that such a process if fundamentally sound is generous in the extreme. A question for the Inquiry as I understand them to be thinking about it, will be whether it was the kind of view to which a reasonabke practitioner of Altman’s considerable experience and skill, could reasonaly come to.
[1] I have noted, however, that, typically, case reviews expressly assert that the purpose of the review is not to determine whether or not the conviction is unsafe
[2] Makin [2004] EWCA Crim 1607; and see paragraphs 59-60 of the Attorney General's Guidelines if material comes to light after the conclusion of the proceedings, which might cast doubt on the safety of the conviction, there is a duty to consider disclosure.")
"The Post Office Scandal, with a particular eye on lawyers' ethics"
Although Clarke, CK, Altman etc are important players, they are foot soldiers in the miscarriage of justice. Those responsible for the managing and ensuring the mis-justice are the judges in their courts. But their role and actions in the process are rarely mentioned in the inquiry or other commentary.
Are the judges immune from accountability for their incompetence, individually and as a class? If judges cannot be relied upon to tease out false facts, identify missing information, point out defective logic and lying, the structure of our civil society is even more fragile than recent political activities suggest.
Judges are lawyers too.