Altman’s General Review I: Fundamentally sound? Bomb disposal?

The PO Horizon IT Inquiry will be turning to professional and managerial responsibilities in coming phases. In this series of posts I look at one critical document, Brian Altman KC's General Review.

At a critical juncture in the history of the PO Scandal, Brian Altman KC conducted what is described as a General Review. Nick Wallis has published it and written about it here.

To put it quickly into context, in 2013, forensic accountants Second Sight became aware of undisclosed bugs in the Horizon system. The Post Office instructed Cartwright King (CK), a solicitors’ firm that had conducted many of their prosecutions, to look into matters.

They quickly discovered Gareth Jenkins as the source of the problem, a Fujitsu engineer and hitherto expert witness for the Post Office on Horizon’s reliability. Simon Clarke, a barrister employed by Cartwright King, advised this raised profound problems for post office prosecutions past, current, and future.  That led to the ‘CK Sift’, Cartwright King conducting a review of hundreds of previous and ongoing prosecutions to see if further, limited disclosure should be made on those cases.

Brian Altman KC was called in to conduct a review of the review. As readers will know, this review of the review, was also reviewed by Jonathan Swift QC (as was) and Christopher Knight (a junior barrister), who recommended that some of the questions they raised be dealt with by further advice which… we we have not heard how that advice went but we do know that the follow-up work on the review of the review of the review was stopped on legal advice it seems. A point I will come to at the end of this series of posts.

Anyway…

Altman’s review is described in an advice called the General Review. In that it becomes clear there were a series of conferences and meetings, and the Review forms part of a much larger matrix of advice given by Altman from 2013 onwards, culminating in his representation of the Post Office in the Hamilton appeals in 2020 and 2021.

The General Review advice is dated 15 October 2013 but elements of the work were to be completed by 15 Aug. He was plainly instructed very close to Simon Clarke’s advices of July and August. Interestingly, his terms of reference were not settled until 23^rd September, a considerable period after a large part of the work must have been done. In later posts we see how the lens he was asked, or agreed to look through, shifted.

Brian Altman’s central conclusion in the General Review was that it was, “fundamentally sound”. Two words for the higher-ups in the Post Office to cling to. It may well have informed Paula Vennell’s evidence to a Parliamentary Select Committee in 2015 and a letter to a minister where she asserted there was no evidence of unsafe convictions.

A later post will look at whether the ‘fundamentally sound’ view was justified on the evidence, but that is only one of many questions of particular note. Some of those questions are for Mr Altman, some for Cartwright King, some for the Swift review, and some for (Womble) Bond Dickinson, the solicitor’s firm at the heart of the Bates litigation, but let me stick with Mr Altman for now.

Any tensions with what Altman told the Court of Appeal?

As noted already, Mr Altman led the PO team in the Hamilton appeals. Although his role does not seem to have been discussed during the main oral hearings on the appeal, there was some disclosure of Altman’s prior role in written submissions for preliminary hearings. One such was in relation to Nick Wallace’s application to be able to publish from the Clarke advice (the advice that said the PO expert witness was sufficiently unreliable as to cast a shadow over all the PO prosecutions). In that submission, Altman’s role is described as follows:[1]

To ensure that the post-conviction review being conducted by Cartwright King was appropriate, the Respondent instructed Brian Altman QC, among other things, to conduct a review of the process (although not the individual decisions in reviewed cases).

Those “other things” are not identified but the key point is that there are some things said in Altman’s General Review that suggest the submissions above were inaccurate.

Firstly, Altman’s instructions included, “the review of a statistically significant number of past prosecutions in which Horizon has been an issue in the proceedings.” Although his terms also asked him not, “to review CK's decision-making or the individual judgments about the reviewed cases, merely to review their review process” (para 4, unnumbered subparagraph). As will become clear, to be able to say the review was fundamentally sound, Altman had to, and did, speak about the quality of those decisions as he saw them, so the difference between reviewing the process and reviewing individual decisions is, in my opinion, a small one. He also comments on some individual decisions, without identifying them, implying some are overly generous (para 83 of the General Review).

Secondly, we are told in the review that Altman had, “seen and read two full case files in the cases of Khayyam Ishaq and Lynette Hutchings.” By the time of his interim review and by the time the general review document was produced he had also, “read 31 full reviews,” (para 52) and, “I have also seen and read through three sample files, which were sifted but did not go to full review.” (para 86). He also seems to be very alive to the case of Seema Misra. Her name appears 15 times in his advice.

To my mind, this suggests he reviewed five case files and 31 full reviews and that review must mean he reviewed individual decisions on those reviews and cases at some level to do his work; indeed, as we will see, his view of these decisions forms part of his central assessment of the system as fundamentally sound. We will have to wait to hear from Mr Altman when (if? I would say when) he gives evidence to the Inquiry as to how he sees it. Jason Beer KC in his opening statement to the Post Office enquiry says this:[2]

It may become relevant that, as part of the advice, that Mr Altman considered two copy prosecution files, something that does not appear later to have been reflected in a submission to the Court of Appeal in Hamilton, namely that this advice considered a review of the process, though not the individual decisions in reviewed cases.

It is in resisting Wallis’ application to publish the Clarke advice in November 2020 that the claim is made that Altman’s instructions were, “to conduct a review of the process (although not the individual decisions in reviewed cases)”. He does so, in part, on the basis that the Clarke Advice may never need to be disclosed in open court, and so would not need to be published. At this stage, a small group of the appellants were fighting to get the Court of Appeal to hear Ground 2 (asking the Court of Appeal to decide that the Horizon prosecutions were an affront to justice rather than more ordinary miscarriages of justice).

As the submissions showed, Altman’s view was that, “it may be that the Clarke Advice will never be a document referred to during legal argument, as it would be unlikely to be relevant to any submissions advanced under the CCRC’s first ground.” If they persuade the Court of Appeal not to hear Ground 2, Clarke’s bombshell advice might remain secret and Jason Beer’s comments would never have been made.

In other words, Altman had an interest, whether he recognized it at the time or not, in keeping Clarke confidential. Under Ground 2, the Clarke Review and the CK Sift risked becoming part of the appeal; and he risked becoming a witness in his own case. If I am right about that, it would be a substantial risk of professional embarrassment and he should not have been acting. I remain surprised that the Court of Appeal, or the layers representng the appellants, did not look much beyond the Clarke advices themselves. I think perhaps they’d already seen enough to suggest that the Post Office may have acted in bad faith in 2010, so in their own minds could stop there; the appeals would plainly be decided in favour of the appellants anyway..

At about the same time, in the Hamilton appeals, concerns about, in essence, a cover-up were being raised. The suggestion was, I think, that the CCRC might have been kept in the dark. Counsel for the Post Office sought to dampen these concerns down in another written submission[3] that suggested the CCRC already knew about the Clarke advice because they had seen the General Review:

10.1 The CCRC has been on notice of the existence and the contents of the Clarke Advice since at least 27 February 2015. On that date the CCRC were provided with a copy of a document entitled ‘General Review’ by Brian Altman QC dated 15 October 2013 which, amongst other matters, extensively referred to the Clarke Advice and its contents and conclusions. Had the CCRC considered that seeing the actual Clarke Advice would have assisted them, it could have served POL with a s.17 notice (as it did in relation to many other such documents, all of which were provided);

10.2 Any suggestion that the fact of, and substantive content of, the Clarke Advice had not been revealed to the CCRC by POL is therefore factually incorrect.

To a large degree, this is true, and I would intuitively agree with the implication that the CCRC should have picked up the issue and asked for the Clarke advice in 2015; but it is worth saying that the tenor of Clarke’s advice, which emphasized the profundity of the problems posed by the Jenkins to PO prosecutions past and future is rather different to Altman’s General Review. As an example, towards the very end of Altman’s document there is a minimising tone used about the nondisclosure problem (“anyone who wants access to the SS report can gain it through POL's website,”) and,

“The Helen Rose report adds very little, it seems to me, other than to point to a particular issue at Lepton, and the implication from the report that as early as February 2013 Gareth Jenkins was aware of integrity issues with Horizon, none of which he revealed.”

At my mildest, I would say this is a regrettable view. In July 2013, Clarke’s advice went off like a bomb, it suggested there was a profound problem with post office prosecutions past, current, and future; Jenkins was unreliable and could not be used as a prosecution expert again. And yet, here we see Altman defusing the bomb somewhat and doing so without getting any evidence mitigating Jenkins’ apparently misleading evidence which Altman rightly describes as tainted.

Similarly, elsewhere in the General Review, we see the concerns about shredding of disclsoure record raised in Clarke’s August Advice, apparently described as, “early teething and "cultural" problems” (para 112). There is no discussion at all of the alleged shredding of documents by the PO’s Director of Security.

We also know from his review that Altman was expected to, and presumably did, report to/meet the Post Office Audit Committee/Board at the first possible opportunity to provide his views on the efficacy of the process adopted by Cartwright King. We are certainly told he had provided interim views almost immediately, although we do not know whether this was to the Board and/or Audit Committee. It seems they got to hear that their preferred suppliers of criminal prosecution services were reviewing their own cases in a fundamentally sound way.

How did he reason to a more sanguine position on disclosure and describe the review process as fundamentally sound? If you are interested in that, in subsequent posts I will provide you with my view...

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[1] Altman et al, ‘R v Hamilton & Others: Submissions on Behalf of the Respondent in Relation to the Application by Nick Wallis for Access to Papers in the Proceedings’ (2020) para 14.2.

[2] Jason Beer KC, ‘Opening Statement to PO Horizon IT Inquiry, 12 October 2022’ 138 <https://www.postofficehorizoninquiry.org.uk/sites/default/files/2022-10/POH%2012%20October%202022.pdf>.

[3] [Post Office Counsel Unidentified], ‘Regina v Hamilton & Others, Disclosure Note in Relation to the Context for “the Clarke Advice”’.