Altman Review V: the Comfort Blanket
We step back a bit from the detail now and look at the broader context of the General Review and Altman's role.
Overall one has to look at the broader context of why and how Altman was instructed. Jason Beer KC, in his submission as independent counsel to the Inquiry, points to another Advice in Dec 2013 from Brian Altman which, “He concluded that there was no good reason to recommend that the Post Office should discontinue its prosecution role.” And Beer draws attention to, that advice recording, that Altman,
…had been First Treasury Counsel and was, amongst other things, a recorder of the Crown Court and a Bencher of Middle Temple.
The Inquiry will consider what role advice of this kind, presented in this way, had in the Post Office's subsequent conduct and whether advice of this kind provided the Post Office and its leadership with a comfort blanket.
An interesting question is how far a prosecutor’s obligations of fairness extend beyond conviction itself. The leading case of Nunn suggests a duty to cooperate reasonably with reasonable defence requests for post-conviction disclosure but does not deal explicitly with the obligations on prosecutors when they, rather than the defence, discover problems which might need to be disclosed or investigated.
In parallel to the CK Sift, a mediation scheme was begun to deal with complaints being raised by disgruntled SPMs, some of who had been convicted after Horizon shortfalls. Interestingly, Altman sees this as risking unnecessary disclosure. “Cartwright King should,” he advises, “exercise supervisory control over the dissemination of information and material during the mediation process.” Whilst he suggests this may give rise to the discovery of situations where further disclosure was necessary, the stronger view seems to have been the, “concern that offenders might use the mediation scheme to gain information as a platform from which to launch a fresh or new appeal, and so CK wish to exercise a measure of control over the dissemination of information and material during the process.”
And there is also some comment on Second Sight potentially being “directly involved in the mediation process, which adds yet another dimension of possible uncontrolled dissemination of information and material.” Similary, “If there is any Horizon-related civil litigation between any present or former sub-postmaster and Post Office Ltd, Cartwright King should be given complete visibility of the litigation in case this should affect any decisions they are making about criminal cases. para 5(xvii)”
Interestingly, given that Altman recognises that the mediation might give rise to a legitimate need to disclose evidence in relation to criminal convictions, in September 2013, Altman had advised the PO against allowing the convicted to participate in the mediation process, “I thought there lurked real dangers in it,” he says. Whilst he was against it, he saw some tactical advantage for his client; forestalling any potential need for the Post Office to refer cases to the CCRC. He says, “If a policy decision has been taken to permit those convicted of crime against POL to participate in the mediation process, then there is no case to refer convicted cases wishing to engage in mediation to the CCRC.” And he immediately reiterates his advice, “that POL through CK must exercise a measure of control over the dissemination of further information and material to guard against participants using the process as a platform to launch an appeal out of time.”
An interesting footnote to this tactical point is that Sir Anthony Hooper to the Chair of the mediation working party, had, “suggested (quite firmly) that it might be more appropriate for cases that have been through the courts to be referred to the CCRC rather than go through the mediation scheme,” although his you may have softened once, “the mediation process and CK's review was explained to him”. So a former criminal judge had said these cases ought to be referred to the CCRC but had relented.
Altman as a potential comfort blanket had reassured them that the CK Sift was fundamentally sound. The Mediation scheme had been set up in ways, somewhat contrary to Altman’s advice, which could have inhibited rather than facilitated disclosure. It’s of note that it was around this time, I think, that Second Sight reported a change in approach to their access to prosecution files as part of their review. I am not attributing any matters other than the first to Altman or the General Review, but it provides important context to judge the scheme as a whole and whether the Post Office, assisted by multiple lawyers, was living up to the obligation of fairness required, according to Altman in his advice, of it.
There are other signs within Altman’s advice that might indicate an inclination against disclosure either from Altman or those instructing him.
· Whilst he warns Cartwright King to be on the look out for legitimate disclosure points he also says, “Given the adverse publicity about Horizon thus far, it would be unsurprising if a "bandwagon" effect were soon to be evident (if not already so) and even in those cases where Horizon was not in issue at trial or before a plea of guilty may, following a process of post-rationalisation, suddenly become Horizon issue cases.”
· A decision was taken to exclude Fujitsu from disclosure meetings. This would seem to me to make disclosure of evidence less likely as it would reduce the chances of PO becoming aware of disclosable evidence that only Fujitsu would be aware of. Altman says, “I advised at the conference that I had considered whether or not FSL should be invited to participate in the Wednesday hub meetings, but upon mature reflection I considered they should not be, and should be kept at arm's length as a third party.” An important question is why?
· And we can see that someone, either Altman, the Post office, or the solicitors instructed by the Post Office, had decided against him considering whether the convictions being reviewed were safe, “After consideration, my remit was not broadened to encompass advice upon the "safety" of any of the Horizon-based convictions, and CK's review has essentially been limited to the review of the question of disclosure in past convictions and in present and on-going prosecutions.”
Jason Beer discusses the inhibitory approach to disclosure marked in part by Altman’s advice in these terms, specifically raising 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] We can say without doubt that it made the earlier disclosure of that information less likely. The question being asked seems to be, was legal advice being used as a comfort blanket but also a smotherer of disclosure.
It is with that in mind, and the particular impact on Seema Misra having been highlighted by independent counsel to the Inquiry, that I returned in my own mind to a remark made by Mr. Altman in the Court of Appeal when discussing why it was Seema Misra did not receive the disclosure she ought to have done in her trial.
The why, the why it didn't happen, we have out, you may recall, in our short response skeleton of 8 January. We don't know. Was it incompetence? Was it individuals not understanding their duties? Or was it deliberate? There is no evidence before the court to say which it was, but the plain fact of the evidence is it was not disclosed ….
It may be true to say he does not know why disclosure was not made in her trial, and that may be all he is talking about here; but we now know much more about why she did not receive disclosure subsequent to her trial. The resistances to disclosure in 2010 which so concerned the Court of Appeal continued well beyond 2013 were based, in part, on Mr Altman’s advice. They also presumably informed Paula Vennel’s testimony to a Select Committee in 2015 that there were no concerns about the safety of convictions. He will need to work hard before the Inquiry to justify them.
[1] ibid 140.
Richard, you say
An interesting question is how far a prosecutor’s obligations of fairness extend beyond conviction itself. The leading case of Nunn suggests a duty to cooperate reasonably with reasonable defence requests for post-conviction disclosure but does not deal explicitly with the obligations on prosecutors when they, rather than the defence, discover problems which might need to be disclosed or investigated.
But isn't this what para 35 of the Supreme Court judgment covers? It says
"There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. "
(presumably the word "new" comes from the assumption that anything not new will already have been disclosed, as in the second and third sentences of para 25). See also para 30.
https://www.bailii.org/uk/cases/UKSC/2014/37.html
You say
Interestingly, given that Altman recognises that the mediation might give rise to a legitimate need to disclose evidence in relation to criminal convictions, in September 2013, Altman had advised the PO against allowing the convicted to participate in the mediation process, “I thought there lurked real dangers in it,” he says.
Is he really saying not to look at convictions in case they may come across something that should be disclosed? If so, this seems, to me, quite awful