Are we human, or are we dancer?

In a series of posts, I am going to consider the Inquiry evidence session with Brian Altman KC. The question, what drives professional error?

In a series of posts, I am going to consider the Inquiry evidence session with Brian Altman KC. His evidence stretches across a key question: what drives professional error? Is it deliberate malfeasance or dishonesty, human biases? Is it structural (and do lawyer mindsets, and in his case prosecutorial mindsets, contribute) or simply a question of everyone makes mistakes?

We do not get answers to these questions but get a lot of evidence. In a session sadly truncated by time limits, every one (including Jason Beer KC later on) seemed to me to be rushing through points that needed more time, and legal professional privilege brought the curtains down on one particularly interesting question.

We can see too that Jason Beer had plainly decided not to follow through on all the issues he had set out about Mr Altman in his opening submissions in October last year. There may be a number of reasons for that, including the possibility that the evidence no longer supported them. We may never know.

It is worth saying, too, that Mr Altman was an exceptional witness. He was helpful, even where his memory failed him. He conceded points that he had to concede quickly and (save perhaps when reminded of them) rather painlessly. Such an approach was wise, he will garner credit for it, and I thought I also spied a sense in which he sometimes did not resist issues where he would not or could necessarily help but might have fought. Where he could, and even where it might hurt him a little, he was being helpful.

He was incredibly calm under pressure, spikey exchanges with Sam Stein KC aside. I have been told he has many friends at the Bar, and I can see why. The usual, ahem, confidence of a KC he wore lightly. Although let it be said I have strange taste, I found him likeable; even some of his more unpalatable positions had the air of reasonable and ordinary sense about them when they came out of his mouth.

So he did human very well for a lawyer. And, well, he could dance too.

But my point, as those of you wondering about the terrible Killers lyric reference of the title, is what tune was he dancing to and why and did he realise it. So bear that in mind as we continue.

It may help to set out some of the key terrain.

Altman during the day admits more than one mistake but one central one to which the others might be said to relate. His core mistake was not to disclose the Gareth Jenkins problem. This was in fact two problems. As you will see if you read on through the series, but in essence: Jenkins failure to disclose evidence of bugs and Clarke and Altman’s assessment of him.

It was a mistake he was rather mercilessly reminded of. At the end of the day Sam Stein probably got the most pithy answer as to what he had done wrong. Asked what he would have done if the Gareth Jenkins problem had presented with the CPS being the prosecutor rather than the Post Office and Mr Altman gives this response,

Well, I would have certainly gone to the CPS and say, "Frankly”, I would have said, "you deal with this. You need to look at what's happened. You need to turn out all the cases he's been involved in". If you're talking about a police investigation or an internal investigation, I'm not entirely sure, but it might have come to the same thing.

Q. But you didn't do that here?

A. No, I didn't

Note the answer: turn out all the cases, look at what has happened. They are important.

Why did he let things continue as they were , he was asked.

A. No, I didn't allow anything to continue. I'm human, like the rest of us, Mr Stein. Probably including you and I make mistakes and we all make mistakes and, as I said earlier, I would like to say was misjudgement. I don't think I made the judgement about it, it passed me by, I don't know why I didn't see it. It's regrettable and I regret that I didn't.

Q. Was it a failure of duty?

A. No, absolutely not, because a failure of duty imports a positive conscious decision not to do something. My point is, the general review contained 50-odd pages of just about every thought I had and I record everything, and the fact, actually, when I came to look at this and I realised that I hadn't said it, in recent weeks, I was flabbergasted and I can't understand, putting myself back, all of those years, why I didn't but I didn't.

And so it was a mistake, it was a genuine mistake but any inference that anyone chooses to draw that I made a conscious decision not to do it is wrong and it's also wrong because the CCRC had the general review in February 2015. That's not mitigation and I'm not making an excuse. But I make mistakes like everybody else, I'm not perfect and I did my best with the resources I had here. I didn't have prosecuting authority like the CPS or the SFO around me to help me in the decision making.

Whether it was a mistake or something else is a central focus of the hearing. It opens up a Pandora's box although the question of whether it created a conflict of interest for Mr Altman is not one of the ones addressed beyond some early questions on it from Sam Stein KC and Ed Henry KC.

Altman’s explanations for the mistake were not very detailed but here is one, given to Mr Henry at the end:

A. One of the problems was that perhaps, taking a naive view, the two new bugs in Horizon Online revealed to Second Sight, I felt could not be material in her case.

A. Yeah.

Q. I mean, forgive me, but naivety is not an attribute normally associated with former First Senior Treasury Counsel?

A. I was meaning it in terms of my understanding of the technicality.

Q. I see.

A. So, in other words, Mr Henry, of course looking back, you're right and the taint should have been disclosed, to Mrs Misra, and I've conceded that now, probably for the seventh time. But what I mean by naivety is my naivety about the impact of a system like Horizon, whereby, if you have two new bugs and Mrs Misra's branch was Legacy Horizon, I did not understand, and nobody put me right, that those bugs could not be referred backwards to the Legacy system. That's what I meant by it.

Q. …those mistakes, if you had been aware of them at the time, they would have put you in conflict with your client, wouldn’t they?

A.    I don’t quite understand the question.

I feel like lawyers may need a class on this question, but that’s not for today.

The mistake made was illuminated by the way in which Mr Altman’s terms of reference were defined as we will see. Ed Henry had an alternative suggestion as to what had gone on with Altman’s mistake. It provoked one of the most intriguing exchanges of the day:

Looking back, thinking about the iterative process, the negotiations, the horse trading, arm wrestling, whatever you call it, as to how you had your terms of reference established and the carefully bevelled or chamfered ambit of those terms of reference, do you think that you might have been set up?

A. By the Post Office?

Q. Yes.

 A. That's a very interesting proposition, Mr Henry. I haven't quite thought about things like that. I have thought, and I'll be frank with you, whether the fact I just left TC's room, Treasury Counsel's room, and I just finished my first tenure as First Senior Treasury Counsel … [and] whether they took comfort from the position I had been in, I've never thought that I was set up, I have to be frank with you, but it's a thought to wrestle with.

There is another explanation: that this was an adversarial minded, put the client’s interests first, approach to advising. Altman disputed that, his ethics as a prosecutor determined what he did.

Questions about inappropriate adversarialism extend beyond the initial mistake to how he assisted the Post Office more generally up to but not including the Hamilton case (which appears to be off limits).  

Ed Henry put it like this:

the advice you were giving to the Post Office, for example, in connection with the CCRC, was "Engage with them, by all means,  appear to be helpful but let them make the running"?

A. I think the relationship with the CCRC is a different one where the CCRC issues notices but, as I understood it, Post Office were cooperating and were engaging with the CCRC.

Q. I see. Can I just put to you fairly and squarely, what I'm suggesting to you is that, regrettably, as is demonstrated by the monstrous delay before these matters went to appeal, the policy of disclosure was a lack of proactive engagement and candour with the CCRC. What do you say to that?

A. By Post Office?

Q. Yes.

A. I know in later years Post Office were keen to carry on  talking to the CCRC but I think there came a point -- in fact, I know there came a point -- when they would have been very happy if CCRC had stopped their interest.

Is that a yes?

Towards the end of his examination, which is cut short as timed-out, Mr Henry – who is trying to put the misjudgements made by Mr Altman to him and make the point, I think, that they suited Post Office in the short term but were horribly wrong in the long run, or in hindsight Mr Altman might say - reminds him that one of the misjudgements he made was to say that the Bates’ judgements did not open the gates to appeals and the CCRC “may never make a reference”.

Oops.

Altman would say, not unfairly at all, that it was a reasonable argument to make. But the question I think posed by the whole story is how can one repeatedly make calls in favour of one’s client and also adhere to the notion that one, as a prosecutor, is a Minister of Justice. In other words, one question in all this is where is the fairness that is supposed to be a guide? And it if is not there, why isn’t it?