Altman Review VII: Tainted love and impropriety
Let's stand back and put the Altman Review in a broader context
In 2013, Brian Altman, through his General Review (find it here) advised the Post Office (orally and in writing it seems) that the Cartwright King sift was fundamentally sound. This ‘sift’ was a review of hundreds of its own cases stimulated by the discovery that PO’s sole expert (Gareth Jenkins) had given written and oral evidence on the reliability of Horizon that was tainted by a failure to disclose bugs he knew of, and possibly other matters which they did not yet know about. The known unknown of other matters was not bottomed out; the problem could have been worse than it seemed.
There are a number of other reasons to to be concerned about Altman’s opinion and his view that the CK Sift was “fundamentally sound” which I have discussed in previous posts:
· His tendency to put a less pessimistic gloss on the significance of Jenkins’ failures (a gloss based on speculation not on an investigation of those failures).
· In advice that might have gone to the Board, his apparent minimisation of the shredding of disclosure documents, describing them obliquely as a cultural problem without mentioning shredding.
· His miminisation or acceptance of conflicts of interest and/or a lack of necessary independence in the conduct of the review on the part of Cartwright King.
· He appears to have seen signs of over-rigidity in the conduct of the review including in relation to matters of scope (whether cases should be reviewed at all).
· The critical time period test for Cartwright King’s review was justified on an erroneous basis. In essence, CK initially said older convictions did not need to be reviewed as those cases were water under the bridge, and were apparently influenced by irrelevant matters, such as PO’s reputation. When challenged, the test was justified on another basis (a claim about cash audits). In reality, although Altman does not discuss it this way, the time period was a matter on which only an expert in the Horizon system could opine and they did not have a reliable expert to ask. Altman noticed, I think, that if more cases like Seems Misra's come out of the woodwork, it would suggest the time limit is wrong
· Potentially related is the point that the opinion appears to rely on factual descriptions of the system from Jenkin’s in spite of his being, in Altman’s words, tainted.
· Cartwright King’s written test for granting disclosure in any particular case was wrong; it excluded the very test (the safety test) that Altman thinks they should apply. He comforts himself on this by saying it didn’t matter though because the safety test was generally applied at least by implication in the review documents he had read.
· The scope of his review changed in interesting ways: in particular, consideration was given to him reviewing the safety of convictions and, in spite of his apparent concerns about rigidity in the approach of Cartwright King, this was decided against.
· His concerns and views, whilst emphasising the need to be flexible and paying heed to the prosecutor’s common law obligation of fairness, tend to point towards inhibiting disclosure (he had warned against allowing convicted complainants into the complaints and mediation scheme, and was worried by Second Sight’s involvement in the process, but saw the benefit that the mediation scheme meant not referring those cases to the CCRC (at least in the short-term).
On the latter point, I would characterise the approach, as look fair but hang tough. Trouble was, on the review as decribed above, there were various ways in which Cartright King’s Sift failed to look fair. Altman’s answer to that is that the tests may have been wrong on paper, but were (generally) applied in practice, if sometimes too rigidly. I really struggle that a process that is written around the wrong rules, and administered by lawyers working for a firm marking its own homework, in ways that may sometimes be too rigid, can be described as fundamentally sound.
When Jason Beer KC, lead counsel to the PO Horizon IT Inquiry, discusses the inhibitory approach to disclosure marked in part by Altman’s advice, he pointedly raises Seema Misra’s appeal being 8 years after Altman’s involvement:
“What role did legal advice of this kind, he asks, “provide about exercising considerable caution in relation to mediation cases?”[1]
Well, quite.
As important is the fact that the General Review also demonstrates how the Jenkins’ problem was known about, in detail, in 2013, by the same firm that had conduct of the Bates litigation. In that litigation information from Jenkins was fed into the evidence of witnesses without calling Jenkins himself. As Jason Beer KC, lead independent counsel to the Inquiry indicates,
“The Inquiry will ask whether it was appropriate in the light of the advice received from both Mr Clarke and Mr Altman, to behave in this way, to approach the litigation in this way.”
They will also, I think, look into whether any lawyers involved in saying, “Post Office had no reason to doubt Fujitsu's account of the documents it held,” were active or complicit, knowingly or recklessly in misleading the court and others.
We can also see now that there are bigger questions than suggested previously over the Swift Review, which had seen Altman’s General Review, and yet seems to have dealt rather obliquely with the Jenkins’ problem. That’s a very curious thing to do in a document that is advising an incoming Chairman on what the right thing to do is in the light of all the question being raised over the Post Office in 2015 unless that chairman, Tim Parker, already had a good understanding of the Jenkins problem.
I am not going to go further into these issue here other than to state a range of possible views on what has happened.
One is that there is some critical piece of the jigsaw missing to us which nevertheless suggests that Jenkins’ evidence was not tainted, or not in anything like the serious ways it now appears, and that this justified the apparently sanguine approach to the various reviews and his proxy evidence in the Bates litigation.
The second is that in dealing with an organisation that could not grasp the possibility that Horizon and its prosecution process were flawed, the lawyers absorbed and reflected back their client’s view. This is the opposite of what an independent review is supposed to entail but cognitive co-dependency, to give this its fancy name, is a real issue for lawyers (as I explored when looking at the Swift Review). Also, lawyers are vulnerable to a range of psychological and social biases: they can’t help seeing the world to some extent through their client’s eyes and powerful social, psychological, and economic forces encourage them towards optimistic construal of those situations. Not least, they want to help the person in a predicament on the other side of their desk. This tainted love, if I am forgiven a 1980s moment, can lead to significant error. Lawyers should guard against it, not embrace it. Such error can be compounded when lawyers get overly used to, or proud of, the power of their own intellect and skill enabling them to manage ‘difficult’ cases to excellent conclusions.
A third possibility is that the conduct here was knowingly or recklessly improper in a professional (or even, although I am not discussing that here, a criminal) sense.
Substantial arguments can be made that disclosure was deliberately inhibited by PO lawyers and the legal work done for it by outside lawyers during the Sift, in the design and/or execution of the Altman Review, in the handling of the Swift Review, the Swift follow-up work (which was stopped on legal advice to be absorbed into Bates, in the Bates litigation itself, and/or after Bates in Hamilton (when there was, for a time, a possibility that the Clarke Advice would never have been made public, because of the strategy and tactics of the Post Office). Paula Vennells, CEO during much of the critical period, blamed the lawyers for any mistakes here in a letter to the BEIS Select Committe when Bates had revealed part of the history. There are, as yet untested, reasons for her not laying that flattering unction to her soul, but Altman saying a sift with significant flaws, is a substantial point in favour of her claim.
The pattern of events over many years points in a concerning direction consistent with nefarious behaviour, can they be explained by lawyers’ tendencies to lean too hard towards secrecy and their client’s interests? Or did any of the lawyers involved in the complex web of events around Jenkins-the Sift- the General Review- Swift - Bates and Hamilton mislead the courts; their clients (Vennells, Parker, and the rest of the Board); or others (the sub-postmasters in particular)? Were they complicit in such misleading (e..g. of Parliament and Government Ministers)? Were they without conflicts of interest or sufficiently independent at all times? Was their advice within or beyond the bounds of normal competent practice? Did their conduct show a lack of integrity? We will have to await the Inquiry hearings to learn more.
Given the extraordinary repeated patterns of problems over time in this case, I sometimes wonder what normal practice entails. One way into this is to look at how lawyers sell their services. I found the following quotes on the websites of two lawyers highly prominent in the PO case (one of these quotes was recently taken down ) and I use them in talks I give on the PO Scandal. The quotes come from legal directories, from happy customers - often other lawyers - and are used by lawyers and their firms or chambers, to help sell their services. They are shown in the graphic below.
The question in the slide is what links the ‘Bag of S***’ (a quote from an ex-Fujitsu employee on the Horizon system in its early days) with the legal saga that ensued.
One answer to that is, I think, culture, because these quotes tell us something about culture in legal. The quotes suggest that one lawyer is sold as a Midas with the Brown Stuff, and another as the SteamRoller who crushes anything that gets in his way. Not their own words of course; they would never say such things themselves. That might be a little distasteful, unprofessional even. They were happy to be sold on such a basis though.
You are absolutely right to say Richard, that lawyers are vulnerable to social, psychological and economic as well as intellectual factors when faced with a client who needs something fixed. And therein lies the flaw in the so called 'independent review'. For a review to be 'independent' it must be commissioned by a someone removed from the matters being reviewed - in this case no one at the PO. Rather the Minister or an independent director of the Board. And they should have appointed someone to conduct the review with no previous knowledge or involvement with the entity being reviewed so that none of the extraneous factors, listed above, contaminate the review and the resulting report. The PO matter was a travesty at multiple levels, starting with the false prosecutions in the first place then compounded as those involved (inside and outside the PO) tried to 'mitigate their mistakes.