Breaking silence...
More key revelations from the Inquiry and some unanswered questions. This time from a former criminal Court of Appeal judge
Yesterday we saw Lord Arbuthnot of Edrom and Sir Anthony Hooper, former Court of Appeal judge, including in the Criminal Division, give evidence to the Inquiry.
It was a day for hearing how the Post Office set up and then conspired, with senior civil servants, to kill off Second Sight’s independent review.
One of the tactics was the appointment of Hooper to marginalise and then remove Second Sight and mischaracterise of Hooper’s view of Second Sight. He declined to comment on why representations to Richard Callard (the Government appointed director and latterly Executive Director of UKGI) by Paula Vennells about Hooper’s unhappiness were misrepresentations.
Hooper said in fact, and with conviction, he “had faith” in the forensic accountants to the very end.
He did not know that he had been appointed in the hope he would help them transition out Second Sight; nor had he been told about the Clarke advice or the problems with Gareth Jenkins, which - the implication was - he ought to have been if they were being transparent.
He told the Inquiry that when he began his work he was worried about miscarriages of justice and expressed concerns about the risk of four ongoing prosecutions and the need for them to be stopped. Cartwright King and (as then) Bond Dickinson solicitor (Andy Parsons) are involved in advising on case summaries being provided to AH on this.
The PO quite quickly wanted to close the scheme down, saying it was costing them too much. He thought that a very bad idea. He said, in terms, the problem wasn’t costs; the problem was the entrenched view in PO that Horizon was right and the subpostmasters were either thieves or had made mistakes.
There were, in essence, two really important points made by Hooper. One is best set out in his statement:
As I made clear to Paula Vennells and I believe Alice Perkins, it was in my view unlikely that the cause of the losses suffered by was, as POL alleged, theft by SPMs from POL. Most if not all the SPMs were of excellent character. The fact of a loss would be known to POL within days or weeks. No sensible person would steal from POL, knowing that POL would identify the loss so quickly leading to the SPM being prosecuted/dismissed. Whilst I was probably unaware of the true magnitude of the complaints by SPMs about Horizon causing the losses, it seemed unlikely that all or most of the complaints were unfounded. Whilst, as POL alleged, some losses could be due to errors made in entering transactions, the many high value losses made that unlikely. Some losses could be due to employee theft, but again that was an unlikely cause of so many high value losses. As the work of the Group proceeded, it became clear to me that POL had not properly investigated losses, preferring instead prosecution/civil action/dismissal.
This, alongside the secret tapes evidence that emerged in the press last week, is amongst the most damning of evidence that Vennells, and probably Perkins (Post Office Chair), had been told that Horizon not the SPMs were the source of their problems.
The essence of Hooper’s evidence is, I suppose, that they simply refused to listen. Instead, they tried to enlist Hooper’s support, through Post Office lawyer Roderic Williams, to delay publication of a second highly critical Second Sight report on problems with Horizon. He required it to be sent to some of the mediation applicants anyway.
Even more critically, by 2014, he says he had formed the view that serious miscarriages of justice were likely. He had advised the PO of the need to disclose, in anonymous form summaries of the complaints made about Horizon that they'd come across in the mediation so that potential appellants could see the volume and nature of complaints.
We get an insight into the attitude of Post Office lawyers in an email from Parsons (Bond Dickinson) to Jarnail Singh (in-house Post Office) and Martin Smith (Cartwright King)…
Hoping any evidence that Second Sight might not be “bothered” is not appropriate, as the Inquiry will I am sure explore with Parsons when he gives evidence, but we can see Hooper’s essential point has been made to them and is understood. How they respond is indicated by a later email from Jarnail Singh which shows they had taken the advice of Brian Altman QC (as he then was).
Sir Anthony said the idea he was suggesting “throwing open the warehouse doors” was an excuse used over and over. Interestingly, he hinted it was an advice by Simon Clarke that may have stopped disclosure, but he did not engage in whether disclosure was legally right or wrong in the Inquiry. Instead, he said repeatedly, and movingly I thought, that he was very fearful of miscarriages of justice, and just wanted PO to get on with identifying and dealing with potential miscarriages.
On Brian Altman, he is taken, in a somewhat truncated evidence session - both his and Arbuthnot’s evidence had to be rushed at the end, to Brian Altman KCs opinion on a related matter.
In the course of Hooper’s involvement with the Post Office the issue of Post Office charging SPMs with theft to leverage false accounting pleas from SPMs terrified of going to prison was raised. Altman was asked to advise if Cartwright Kings advise was defensible; they had said that theft and false accounting were equivalent and so there was no leveraging to be had. I have written about it here and it is clear the Inquiry are very interested in this issue.
We get a very clear sense of what Hooper thinks of the advice without Hooper telling us directly. He emphasises his own, considerable experience in criminal practice as an advocate and a judge. It is damning. Anyone who has practised criminal law, he says, would know the likely sentences for the offences would be very different. The closest he comes to commenting on the advice Altman gives is it is “theoretical”. Asked to comment on on why a lawyer would advise on those terms from the perspective of ethics he declines and says, “I leave that question to the Chairman”.
Interestingly, Sir Wyn Williams, who does not need to, picks it up. He says he is not going to hide from the point. “My real experience is the same as Sir Anthony Hoopers”.
And Hooper says too, in a letter we have not yet seen, but comes from another lawyer, Aujard’s successor as GC Jane Macloed (and now a colleague again in New Zealand I am told), is where the real world is well described.
The implication is clear: theft was charged to pressure guilty pleas from pliable defendants.
He ends with some powerful general comments. He describes it as “the greatest scandal ever in the criminal justice process.” And adds, “We need to evaluate how we prosecute cases like this.” He singles out problems with legal aid discouraging experienced representation and especially emphasises the low bar for prosecutors bringing cases, they simply need to be satisfied there is sufficient evidence on which a jury could convict. This, he says, is too low a bar. He then emphasises how common and entrenched here and abroad disclosure problems are.
But it is the way he said repeatedly that he was fearful of the miscarriages of justice, of people who would die without them being quashed, which sticks in the mind.
There’s one more point. A friend of mine, a seasoned exec, and regular observer of the Inquiry, emailed me afterwards to say this, and I cannot stop thinking about it:
Hooper was the most emotional witness I have seen. He seems to me to have been profoundly affected by the miscarriages of justice. I wonder if he blames himself to an extent for not getting this exposed before Bates.
I can’t speak to why but he certainly was emotional. I put it down to a well-developed sense of decent and outrage. Lord Arbuthnot’s witness statement ends with a similar moment which I find difficult to read, not least because I am sure he is telling the truth:
…too many people have died before we reached this point. I find it difficult to stop thinking of them
On Hooper’s evidence though, Nick Wallis, the journalist who blogs here, raises a question which is both really important and was not asked:
Hooper says he took the view that by the middle of 2014 they were looking at several serious miscarriages of justice. He decided to keep his mouth shut for years (politely declining my requests for interview until 2021*). Why? What stopped him from speaking out?
The answer may be that he raised it with the right people, and it was their job to act, or he was bound by confidentiality agreements. And if anyone put the point to him that there was no confidence iniquity so he was not bound, he might say, but I was not sure I was merely worried and so I was bound by confidence**; and I raised those worries with the professional advisers of Post Office; and its only subsequently we know I was right to have those worries.
As we don’t know what his actual explanation is, or whether he in fact did more, I will not deconstruct the possibilities further, but I won’t stop thinking about Hooper’s fear and James Arbuthnot’s anguish for some time yet. Because believe lawyers have an unhealthy relationship with silence and that needs to be considered along with the broken criminal justice system.
The SRA are consulting on reporting up and out obligations. There’s things to say about this guidance, and it can be improved significantly I think, but at long last they have begun thinking about it. It’s not an issue for in-house lawyers (or solicitors) only, thoughThere are things to say about this guidance, and it can be improved significantly, I think, but at long last.
*Wallis got his interview after the Post Office agreed to lift restrictions on Hooper.
**I have said I do not want to deconstruct further but I want to note that certainty is not required here, I think.