Altman's Review VI: Fundamentally sound to Flat Earthers

We move beyond the concerns about the review itself to a crucial link between it and the Bates litigation.

For all that the Altman General Review raises lots of critically important questions about how bad something can be and still be called fundamentally sound, there is another side of it that may yet prove to be the most serious element yet.

The solicitors firm that had provided the instructions on the Altman Review (Bond Dickinson) were the same firm that had conduct of the Bates litigation: Womble Bond Dickinson (the Womble was gained as the firm enlarged through merger).

Bates is the case that was run, according to Mr Justice Fraser, as if the Earth were flat. Furthermore, two lawyers named in the Altman General Review document were, last time I checked in February 2023, still solicitors in the firm.

This means, barring something remarkable, those conducting the Bates litigation knew, or at the very least ought to have known, about the Gareth Jenkins issue in some detail. Bond Dickinson also had conduct of the Castleton Litigation; the costs of which bankrupted a sub-postmaster Lee Castleton. As a result, and although not prosecuted, Mr Castleton’s kids were spat on because their Dad was, in the eyes of some, a thief). It was recently suggested in the Inquiry that this latter case was fought by the Post Office not to recover the money but to make an example of Mr Castleton.

Those who have followed the PO case closely will know that Mr Justice Fraser’s Flat Earth epithet was based on a raft of concerns about the substance of PO’s case and their conduct in the Bates litigation (2017-2019). In the judge’s view, the case was one of bare assertion and denial; pleadings and evidence ran the gamut from wrong to deliberately misleading; and, witnesses gave evidence about things that were not within their own knowledge. Some of those witnesses relied on information supplied to them by Gareth Jenkins; who, as we know, Altman agrees in the General Review is, “tainted and his position as an expert witness … untenable.” (para 5(x))

Instructions for the General Review came through Bond Dickinson, as “solicitors advising POL”. The Clarke advice came to light when a member of one of the appellant legal teams (Paul Marshall) spotted a notification from Bond Dickinson to the PO Board that there was a problem with one of their prosecution witnesses.

Jason Beer KC in his opening statement points to the problem revealed by all of this:

We know from the Horizon Issues judgment that Gareth Jenkins contributed to the evidence that was relied on in the Group Litigation, albeit the Post Office chose not to call him as a witness and thereby subject him to cross-examination.

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.

In a sentence that writes itself, I am becoming a fan of Beer. He has such a light touch with weighty concerns. Here’s what lies behind the point, I think. In Bates, Post Office’s lawyers provided an explanation for not calling Jenkins which indicated,

1. “Post Office was concerned that the Horizon Issues trial could become an investigation of his [Jenkins] role in this and other criminal cases.”

2. Calling more witnesses like Jenkins would have slowed the trial down inappropriately. And,

3. “the relevant parts” of evidence given by one of the witnesses relying on Jenkins, “were most unlikely to be controversial. For example, the Misra trial was a matter of public record, the four bugs were covered by contemporaneous documentation and Post Office had no reason to doubt Fujitsu's account of the documents it held.”

No kidding. Really. Seriously. And so on.

The justification for offering that explanation is keenly awaited. Given the Post Office, and (Womble) Bond Dickinson, who had conduct of the litigation, should/would have known about the tainted witness, you can get a sense that they might be trying to squirm around this problem by saying they had, “no reason to doubt Fujitsu’s account of the documents it held.” (my emphasis)

Perhaps, although I doubt it, Altmans’ conjecture that the Jenkins situation might not be quite as bad as it first appeared (see below) provided them with some comfort (unlikely I’d say). Or perhaps they took steps that reassured themselves into allowing them in good conscience not to call Jenkins but rely on his evidence by proxy. I’d suggest they would need quite compelling evidence that his evidence was not as tainted as appeared in 2013 to be properly reassured on that point.

It appears this was not done as part of Altman’s General review. That proceeds without, it seems,  Jenkins being spoken to in-depth about the omissions in his original evidence. A fair prosecutor would have the chance to discover whether the problems in his evidence were aggravated or assuaged as a result of such an investigation. The tactical reasons for not doing so are obvious; if they find out it’s worse than they think then the can of worms gets a whole lot bigger. The principled reasons for doing so nonetheless are, I would venture to suggest, stronger; and it is arguable, I think, that a prosecutor’s obligation of fairness might demand it.

We should wait to hear the reasons why this was not done. Altman’s terms of reference make clear to him that he can, “meet and interview as a fact-finding exercise anyone else you or POL consider relevant to the process of the investigation and commencement of prosecutions.” (Para 2.4, my emphasis). An interesting question is whether factual points beyond the commencement of proceedings were beyond the scope of his Inquiry and so prevented him speaking to Jenkins. If so, why was this ruled out of scope? And by whom?

In some ways, Altman is interestingly emollient about Jenkins. He defends Post Office having treated him as a legitimate expert, There is, “no impediment to an expert giving evidence even where he is employed by the party calling him”. And the “inevitable risk of challenge…. does not operate so as automatically to disqualify him ….. [T]he key question is whether his expression of opinion is independent of the parties and the pressures of litigation.” It’s not a key question that is answered in the opinion. Perhaps because it really answers itself.

Altman recognises that the Rose Report and Jenkins’ failure to disclose the two bugs discovered by Second Sight, “lends itself to the reasonable interpretation that his true level of knowledge about the integrity of the system in general, and two defects in particular, was far greater than he was prepared to reduce to writing in his several witness statements during the material period of time.” But also says, “Of course, it may be argued, possibly correctly, that the two defects that Mr Jenkins has divulged to S[econd] S[ight] do not amount to very much in terms of the overall integrity of the system…” (my emphasis).  

Whilst, “it is not for the expert to make secretive judgments about such issues,” and he accepts the Rose and Second Sight reports need to be disclosed, he goes on to excuse the prosecutors on the basis that they were not aware of Jenkins omissions [he does not know perhaps about the report which was sent to criminal lawyers working within the PO days before Seema Misra’s Trial, a document which caused Fraser and the Court of Appeal, particular concern].

In a way, Jenkins’ failures are being subtly and hypothetically (“it may be argued”) reframed to reduce the intensity of his failure, and to absolve the prosecutor of responsibility, whilst preparing the ground for the kinds of arguments that might be made to defend an appeal. Notably, also, although Altman rehearses Clarke’s view that Jenkins’ credibility is, “fatally undermined, and that he could no longer be relied upon to give expert evidence,” he does not formally endorse those conclusions, instead he says this:

I am not clear whether Mr Jenkins was challenged about the non-disclosure to POL and, if so, what the explanation was for it. But given the SS inquiry, based in part on his revelations, has led to the current review, Gareth Jenkins is to that extent tainted and his future role as an expert is untenable. It should be remembered that POL had been unaware of the existence of the second of the two defects revealed to SS by Mr Jenkins until a year after its first occurrence. [my emphasis]

Not being clear on such a point strikes me as incredible. If I understand it correctly, it suggests the CK Sift and the Altman General Review proceeded without understanding how big a hole had opened up as a result of the Jenkins problem. Yet the Sift can be labeled fundamentally sound. And Altman feels able to speculate that the problem might not be as serious as it looks. He might also be said to be very subtly, perhaps subconsciously, acknowledging that Jenkins’ knowledge of integrity problems might extend to the “system in general” beyond, "the “two defects in particular.” With what now looks like a sickening irony he also says this:

How much real capital may be made of the fact that Mr Jenkins will always be a background figure in the Horizon story is impossible to predict. But what I think I can predict with a degree of confidence is that in the hands of capable counsel, more is bound to be made of the non-disclosure issue than the mere instruction of a new expert will resolve for future trials.

If this is the case, one wonders how it is that any case which had involved Jenkins could be said to be safe at the end of the CK-Sift. Seema Musra’s case, of which Altman is acutely aware, is one such case.

Given that he is, “asked to consider the impact of Gareth Jenkins on possible appeals.” And the potential for Jenkins to loom large in future cases, it seems surprising that he neither seeks Jenkins’ explanation nor advises that it should be done. Also, interestingly, he emphasises the limited base of his knowledge on Jenkins, “I have only seen and read two only of his reports ….For the remainder, I have taken my knowledge of the general nature of his principal case reports from Simon Clarke's analysis in his Advice of 15 July 2013….”

He prefers to advise that speaking to Jenkins might be needed should a case go to the Court of Appeal,

“which could require Mr Jenkins to provide a full explanation for not mentioning the two defects he revealed to SS for the purposes of their inquiry, and any other undisclosed issues that ought to have been revealed as relevant to any issues raised in the appeal.” (my emphasis)

Here, we see Altman acknowledging the possibility that the can of worms might be bigger if only someone looked to check that there are not, “any other undisclosed issues”).

Instead, everyone seems to have been happy to put this particular smoking gun in a cupboard in Bracknell. I suspect we will hear in the Inquiry whether this laissez-faire attitude to Jenkins was thought to be justified; perhaps founded on the belief that they could allow the CCRC and any potential appellants to make the running on the case inspite of being advised of their common law obligations of fairness. A particular whiff of gunsmoke hangs over the Bates litigation and those who had conduct of it and to a degree it must now hang over the Swift Review. The tainted thread of Jenkins’ evidence, evidence which helped send Seema Misra to jail, looks like it ties these things together, and yet no one seemed keen, on what we know so far, to find out how thick that thread was. Save perhaps the Swift team; they met Jenkins, but we gain no clue from the review itself as to what they learned from that.

Tomorrow’s post will conclude.