Anatomy of a "cover-up"? II
Yesterday’s post set out how secret tapes appear to show senior actors within the Post Office being told that: (1) what is called remote access to their Horizon system is possible despite denials to the contrary; (2) there were serious inadequacies in some prosecutions and suspensions of SPMs by the Post Office; and, (3) there is the potential that PO has engaged in misleading of the courts in their handling of such cases.
The tapes appear to date from 2013, well before Paula Vennell’s appearance before the Business Select Committee in 2015 and the Bates litigation in 2017 to 2019. The allegations are made to Susan Crichton (General Counsel), Chris Aujard (her successor as General Counsel in late 2013) and Paula Vennells.
Yesterday ITV covered a further recording which reports on conversations between Second Sight, a Post Office executive (Belinda Cortes-Martin - former Programme Director for Project Sparrow, giving evidence to the Inquiry soon) and a lawyer from Womble Bond Dickinson (Andy Parsons, also giving evidence in the Inquiry). That tape relates to apparent stonewalling of requests for emails designed to investigate the extent of any remote access problem.
As red flag raising goes, it’s worth noting two things. The first is that the problems that Second Sight presented them with were based, it appears, on significant investigation whilst not claiming to be the final word. The second is they appear now to be accurate; the guts of their concerns are supported by the judgments in the Bates case and in Hamilton.
The first point would have been apparent to the Post Office when the issues raised, the second only if they themselves had an accurate understanding of what was going on in the organisation. In yesterday’s account, we do not see immediate acceptance of what Second Sight are telling the Post Office. Indeed some attempts to counter or limit the significance of remote access problem are offered by the PO and, to a degree, rebutted by Second Sight as either contrary to the evidence or weasel worded ways of describing what is going on.
We also saw signs that a strategy began to develop that further investigation was needed (interestingly not fully disclosed to Second Sight) alongside seeking to contain those complaining such as MPs like James Arbuthnot, as he then was.
Crichton’s successor, Chris Aujard referred to work on the injustices visited on SPMs by Horizon problems as not for him when he met Second Sight; they were in another “pot”, to be accessed through another “portal”.
We do not know what he means precisely, but we can speculate. We know that Second Sight’s revelations in 2013 prompted the Post Office to instruct one of their agent firms, Cartwright King, to look at what was going on. Cartwright King had prosecuted many cases for the Post Office. They are, the canny reader will have spied straightaway, notably less independent than Second Sight, having been already involved in prosecuting sub- postmasters.
Nevertheless, a barrister from the firm wrote what is called the Clarke advice, raising a flag of much redness. He said there were profound problems with PO prosecutions past , present, and future, because of evidence given by Gareth Jenkins, a Fujitsu engineer, and the firm was instructed to conduct a review of all their prosecutions.
Over time, it seems, the red flag was lowered. Cartwright King’s made a few minimal disclosure and Brian Altman KC reviewed their work and declared it “fundamentally sound”. I have written about that elsewhere.
These were not the only red flags being raised. Lots of things happened in 2013.
· An internal audit report from Helen Rose referred to entries in Horizon data apparently “done by the SPM” being in fact, “done by the Horizon system”. It also suggested knowledge of wider “integrity problems”.
· The Director of Security is said to have issued instructions to shred meeting records around disclosure (Clarke warned the Post Office about perverting the course of justice when it came to light);
· Solicitors for the Post Office (the firm became Womble Bond Dickinson) write to the PO Board to tell them about concerns with Fujitsu computer engineering evidence (apparently to notify their insurers of the Jenkins problem); and
· a report by Detica on “fraud and nonconformance in the Post Office” commissioned by the Head of Security and then General Counsel suggests Horizon is not fit for purpose.
The conversations reported between Second Sight and Susan Crichton, in particular, appear to be in before these later matters occurred. At that point, what we see is not necessarily an unreasonable response, if they think Second Sight needs further examination and/or they are hearing strong argument as to why they have got it wrong. We can see, for instance, in the conversation between Henderson/Warmington and the PO IT person that counterarguments about the extent to which remote access was really a problem were live in the PO and Fujitsu’s minds, even if Second Sight appeared able to rebut them.
The events subsequently though, including the forest of red flags in 2013, pose a major challenge to maintaining that position, assuming they themselves were aware of most or all of them. Simon Clarke’s advice in July 2013, in particular, is a show-stopper. And yet the show went on. It was the subsequent work done by Cartwright King, reviewing their own cases, and supported by the advice of Brian Altman KC, which I believe Chris Aujard is referring to as the “portal” into which he says he will feed Second Sight’s concerns.
The question I posed yesterday was whether faced with reputational challenges the Post Office adopted a strategy of denying, undermining, and containing allegations of wrongdoing rather than acting on them and whether that strategy was perfectly legal, lawful but awful, or unprofessional, even criminal.
We do not know and will not know for some time.
We do, however, see Crichton and Lyons speculating on how to shut down MPs complaints and I would surmise this is what led to the discredited Complaints and Mediation Scheme, which it is claimed was designed as a way of diverting cases away from Second Sight into a process supervised by the Post Office. Susan Crichton is said to have said that, “further cases should not go through the Second Sight process, [the process agreed with MPs and supposed to be independent] but rather through a Post Office Ltd managed process with senior oversight.” That story suggests the impetus for this came from Paula Vennells herself.
And the Inquiry has published an email sent by John Scott (Director of Security) first thing in the morning of 14th August 2013 to Susan Crichton saying:
“The brief given by yourself for this meeting was to provide in effect an under the radar escalation point from across the business of issues that may impact the integrity of the Horizon system. You were frustrated in regards to the production and circulation of the Helen Rose report and therefore did not want any electronic communication which may be subject to Fol or Disclosure.”
The same memo suggests the conference calls (which were set up after the Clarke advice to help the PO manage disclosure issues) was set up as, “an informal escalation point and no electronic notes would be taken or circulated and communication would created. Written notes have been taken for each call and activity has been driven behind the scenes. ….This was then managed subsequently directly with Rodric Williams and Steve Beddoe by myself in a manner to bring it under legal privilege as far as possible.” It is linked to, “a crowded and multi tiered operating and governance model for the Second Sight response (the risk of duplication).”
Notice the adversarial language. Scott see it as part of a process of rebutting Second Sight.
One reading of the memo is that it was produced, in anticipation of Mr Scott being confronted about shredding by Susan Crichton, so we should read it with circumspection. But notice here the concerns that pertain to unhelpful information from FOI requests and the references to minimising electronic distribution of information and maximising the protection of legal privilege. These are suggestive of a deliberate strategy to undermine proper disclosure of information by the Post Office and, if that is found to be case, likely indicators of criminality.
Scott is saying how he sees it, and putting words into Crichton's mouth, so we should not be quick to blame her here. But there are elements which ring true. Lawyers regard legal professional privilege as a key protection for their work, and often talk as if protection of privileged information is a primary objective of their investigatory work. It means that, ordinarily, no court will order that information to be disclosed. What Scott did not understand, or perhaps Crichton, is that the rules were different in criminal cases.
Abusing legal professional privilege is a tactic seen elsewhere. Don’t take my word for the problem, take the word of David Green CB QC when he was Director of the Serious Fraud Office. In 2015 he complained to the Times about lawyers, “obstructing investigations by hiding behind the shield of legal professional privilege.” Greene pointed to privilege claims that were “ill-founded,” or where, “privilege is claimed artificially”:
“These companies call in outside lawyers, who make a lot of money by doing an investigation and are the first to interview key witnesses at the coal face, then claim privilege — it is absolutely ludicrous.” Lawyers were effectively “ploughing up the crime scene”, he added.
Mr Justice Fraser complained about the abuse of privilege, and redaction, in the Bates case.
It is hard to speculate on what happened next and how the Scott-Crichton exchange developed. She left not long afterwards and Scott remained in place. What that tells us remains to be seen.
But there are some matters we can focus on.
I do not want to try everyone’s patience with a lengthy discussion of the constraints lawyers should observe in such circumstances (although I confess Ron Warmington’s warning about controls for those who wish to obey them is ringing in my ears). But briefly: they have an obligation to protect their client’s best interests, to promote the rule of law and the administration of justice, and to behave with integrity.
Where there is an alleged wrong it is not difficult for a lawyer to say, there is a conflict of evidence, the wrong is not proved, and it is therefore reasonable to contain matters under NDAs and the like. That judgement may be reached too casually, even inappropriately, but it is hard to challenge afterwards, especially if all the evidence is shielded by privilege and NDAs.
Here, though, the lawyer's rule of law obligations particularly included attending to obligations of disclosure on the Post Office as a prosecutor (including of those potentially unsafely convicted). The principle of integrity is also bolstered by an obligation on lawyers not to knowingly or recklessly mislead anyone. And the client’s interests do not generally come first; save around issues of confidentiality; in general, the administration of justice outweighs the client’s interests. This is a fact that discomforts some lawyers almost as often as they forget it.
Let me focus on three incidents which engage these obligations.
The first is Paula Vennell’s now rather hollow looking protestation to the Business and Select Committee in 2015:
We are a business that genuinely cares about the people who work for us. If there had been any miscarriages of justice, it would have been really important to me and the Post Office that we surfaced those. As the investigations have gone through, so far we have no evidence of that.
This is plainly wrong. It might be a form of weasel words, Vennells might be misremembering or have been persuaded that evidence that they have seen is countered and so not evidence, but evidence of miscarriages of justice was legion and it was clearly conveyed to the Post Office and sometimes to her.
The second is it is followed up by a letter in June 2015 to the relevant minister at the time, George Freeman MP, where she says, “Through our own work, and that of Second Sight, we have found nothing to suggest that, in criminal cases, any conviction is unsafe.”
Nothing to suggest? That too is misleading, given what we now know. Second Sight have raised several matters suggesting convictions are unsafe (as had the Clarke advice and so on and so forth). That Post Office, or their legal advisers have raised counters or not accepted that the convictions are unsafe is rather beside the point.
Vennells was accompanied at the hearing by Chris Aujard (he can be seen in the public gallery behind her on the day). He is not, of course, responsible for the words that come out of her mouth in an Inquiry but there is a question as to whether having spoken in this way he sought to advise her to correct it or helped her pre the lines to take. It would be surprising, more importantly, if the letter sent to Freeman, given its relation to matters of such legal importance, was not checked by him or a member of his team. There is a real question to be asked about complicty in misleading Parliament.
In a way this is a serious but more minor point; the bigger question is whether the legal work was organised simply as a defensive tactic, to protect the Post Office’s reputation, to rebut Second Sight, rather than genuinely and properly investigate the allegations already investigated by Second Sight and discharge Post OOffice’s obligations to be a fair prosecutor.
Of course the Post Office Instructing the firm that conducted many of the prosecutions for them is not conducive to confidence. Nor is John Scott’s concerning, if rather self-serving, email. Nor is the review of the review conducted by Brian Altman KC that airly dismisses the “possibility of the suggestion of a commercial conflict” when it is plainly a solicitor-own-client conflict that shows the review to be fundamentally flawed. Cartwright King were hopelessly entangled in the conduct of the past prosecutions. They should not have been engaged to take down the red flags that Second Sight raised by marking their own homework, nor should they have accepted the instructions.
The third point takes us back to remote access. This is a messy part of the story, but in essence, we know that PO continued to deny the full facts on remote in the Bates trial, even though they made some admissions about it at the commencement of the case. One can get a bit of a feeling for the problem from parts of the final Bates judgment:
538. ….whether something [remote access] is technically possible… ….had been expressly denied, and that denial is now shown to be wrong.
539. I consider the significance of the previously factually untrue statements to be considerable. The statement was made publicly by the Post Office, turned out not to be factually correct, and the Post Office gave an explanation and said the full set of facts was now available. The situation was pleaded to by the Post Office in its Generic Defence, with a statement of truth. That too turned out not to be correct, and the true position has only emerged in the Horizon Issues stage of the litigation as a result of the evidence of Mr Roll, which I have dealt with above. It was only following his written evidence that Mr Parker, and Mr Godeseth – both senior Fujitsu employees – prepared their supplementary witness statements correcting their first statements. These first statements, as I have explained above, were simply untrue in that important respect. These witnesses had previously stated that this was not possible. Mr Parker said Fujitsu did not have the power to do this.
And we see Fraser J suggesting the blame for this may lie with Fujitsu:
545. The truth concerning remote access has now emerged in 2019, in group litigation that started in 2017. I find it notable that the truth did not emerge in the first Fujitsu witness statements that were originally served for the Horizon Issues trial. Such statements stand as the evidence in chief of witnesses of fact. They are supposed to be accurate. Minor corrections are not unusual and indeed are almost expected, as a trial approaches, as witnesses either research further or remember (when preparing for trial) other minor details. This topic, however, did not undergo that type of correction, and is a subject far more central and important than that. The truth only finally emerged in later statements, which were required to correct what I find were directly inaccurate statements in the first witness statements of Mr Godeseth and Mr Parker. There has been no adequate explanation for the contents of those first statements, which not only omitted this important fact, but contained evidence directly to the contrary. Those first witness statements were misleading. The statement in the Defence was misleading too. It ought also to be noted that the truth did not emerge internally within the Post Office in the email answers provided to internal inquiries in 2015 by senior Post Office personnel, such as the Chief Executive, who posed the specific question in preparation for providing evidence to a Select Committee and asked: “What is the true answer?”
Blaming Fujitsu looks too kind on the Post Office in the light of these tapes. Senior executives and senior lawyers were told about remote access; the solicitors firm running the litigation with them is shown by last night’s revelation to have attended a meeting related to remote access and has been instructed on matters directly related to Second Sight’s allegations from as early as 2013. According to the tapes, and the tactics that are criticised in Bates, they were part of the process of stonewalling Second Sight, and then the Bates litigants.
Presented with evidence from independent investigators, which they have sought to challenge and contain, none of the GCs involved, and the private firm involved, appear to have been able to present a case which was consistent with the truth, at least as Fraser J saw it. Why might that be? David Green’s comments suggest the problem is more widespread. Why that might be is something I hope to return to soon.