Clarke II: the mistaken hero?

The second part of my analysis of all the other mistakes made by the man who stopped Post Office prosecuting

In essence, Mr Clarke sought to represent the problems discussed in my first post as good faith errors made by a competent practitioner or the limits of his role in an unusual situation.

In this second post, we look at his other work, his approach, his errors, and his claim that he was proud to have stopped the Post Office from prosecuting.

Cut off period

On 8 July, so puzzlingly before his Gareth Jenkins advice, he is seen to advise on the start date for the review process (the “CK Sift”), which controversially excluded cases from review if they were Legacy Horizon cases (cases using Horizon pre-2010).

He emphasises he was eight or nine days into what he calls his “learning curve”.

Interestingly, all the specific dates suggested (by the Post Office?) in his advice exclude Legacy Horizon. Clarke’s advice is based on several reasons that cannot be supported (Brian Altman sees them as inappropriate or irrelevant). They include concerns about publicity and treating past criminal convictions where the sentences had been served as not needing review.

The remaining reasons he tries to but cannot defend under cross-examination. He cannot defend his argument that an audit meant 2010 was “a very clean start point” nor can he explain how Gareth Jenkins only became unreliable for cases that related to Online Horizon from 2010 onwards. That Seema Misra’s case involved Jenkins giving evidence in 2010 makes this doubly perplexing.

Interestingly, he also suggests that it became clearer to them as they carried out their reviews that issues extended back before 2010, and so they reviewed quite a few (but not all) pre-2010 cases as a result.

Whether Mr Clarke engaged in a rationalisation that assisted the Post Office in containing the scope of the Review or not, he was influenced by a good many irrelevant considerations, and ignored or failed to recognise plainly relevant, counter-arguments that 2010 was wrong.

Samra PII application

Shortly after his Gareth Jenkins advice came the Samra trial. Listed for 1 July 2013, it was adjourned for rather unusual reasons.

Simon Clarke’s attendance note records an application for a public interest immunity (PII) certificate. The basis of the application, as recorded there, was the desire to prevent a widespread loss of confidence in a public institution or, a loss of trust in a system operated by such an institution or to prevent journalistic speculation about systems relied upon by the public.

At the Inquiry, Mr Clarke indicated they needed a PII certificate because Second Sight’s interim report was due to be presented in Parliament that day, and it was subject to parliamentary privilege until then. That prevented, he thought, disclosure pre-publication.

He suggests he relied on Singh (and Smith) for his understanding of the constitutional position.

If it were not so important, it would be very, very funny.

Defence Counsel was informed of the application but was not given further details beyond the fact that they were seeking an adjournment and the hearing took place ex parte.

The attendance note does not record what the judge was told.

Clarke says he told the judge about problems with their expert evidence and that Parliamentary privilege “really was the basis of the application.” He agrees he would have made the other points about protecting trust in the Post Office. The judge makes the order even though Clarke describes him as “scathing” about the situation and “quite upset”. He still thinks it was a proper application and relies on the fact that the judge granted the order as supporting that.

Tim Moloney KC takes him to task on whether the application was based on parliamentary privilege. There was no express mention of it in his attendance note or elsewhere, and Moloney asks if it was really all about the Post Office’s need to keep problems with Horizon quiet. Clarke maintains that parliamentary privilege was crucial to his application.

Clarke is also forced to concede that he already had information received directly from Gareth Jenkins and the Post Office, including the note of his call, which is not subject to parliamentary privilege. He suggests he thought he had to wait for the publication of the Second Sight report nonetheless.

As with the cut-off period advice, I'd say Mr Clarke is probably mistaken about both parliamentary privilege and his obligations to disclose the information he had received from Jenkins directly. The point for the Inquiry will be whether these were really points made to the judge and whether the privilege was simply an excuse to justify delaying disclosure while they got their ducks in a row.

The Shredding Advice

The next episode is the most important—Mr Clarke’s ‘shredding advice’ from early August 2013.

His advice suggested a perversion of the course of justice may have occurred, given the allegations that documents had been shredded. His advice was, to paraphrase it, this is really serious: if you have done this, do not do it again.

Forward, not back, one might say.

He’s asked why this was not the last work ever carried out for the Post Office. His understanding was, he said that John Scott was on a frolic of his own. He brought the shredding allegation to the attention of the Post Office so they could take any necessary steps to deal with it. He says, too, “I’m just a bit old-fashioned about this: barristers don’t walk away from their clients when life gets difficult.”

Describing a potential perversion of the course of justice as a frolic is quite a leap. Does anything justify such a change in view?

My view is that there is not the evidence to say yes.

He knows his advice sat in a drawer for a couple of weeks, even though a proper response would have been to take urgent action. He does not seem to have seen the belated and unsatisfactory response written by Susan Crichton (the PO General Counsel). Not taking pains to see the written reaction to his advice is somewhat surprising.

Nevertheless, for reasons he cannot recall, he understood it was dealt with. He is taken to an attendance note that records it is him who reassures Brian Altman, in a conference a month or so later, that it has been dealt with.

No documentation explaining how it has been dealt with is available. An inference might be that a problem with a difficult employee (Singh was said to be frightened of Scott; Clarke notes he was thought to be a bit of a law unto himself) is being brushed under the carpet.

The absence of documentation around how the problem was addressed (if it was) is even more extraordinary given that Jarnail Singh told Smith at the outset (who very likely tells Clarke) that the Post Office plans to blame Cartwright King for advising them to destroy documents.

This is not put to Mr Clarke to see if he thought it presented a conflict. We also know that Clarke was concerned about the role of Bond Dickinson’s Andy Parsons in the problems.

This was not a sensible time to accept verbal assurances.

As with the Jenkins problem, there is no written evidence that the shredding was investigated. It remains uncertain whether documents were shredded and what, if anything, was said to John Scott to warn him about his (alleged) conduct. An obvious thing to do would be to secure the documents alleged to be shredded and a written explanation of what had happened.

No disclosure of the shredding allegations was made to convicted defendants, and I have not seen any suggestion that it was considered for disclosure.

The Mediation

Later, Mr Clarke was asked to advise on the risks posed by mediating with sub-postmasters who had been convicted by the Post Office. Like Altman, he was against it. Here, the issue is not so much whether his advice was wrong as whether some of his reasons were appropriate.

He agrees that adverse publicity and inhibiting peoples’ access to information potentially useful for appeals are not legitimate reasons for his advice. “Yeah, I think I went too far,” he says.

Conversely, and to my mind inconsistently, he suggests that he thought the mediation was being used to keep sub-postmasters quiet, and he thought that was improper. Why resist it and resist disclosure when he should not have (see below) if your concern is that the mediation being used for improper purposes?

There is an important ethics and professional conduct question here, only sometimes acknowledged by practitioners, about assisting with matters being run for improper purposes.

False Accounting and Theft

Another mistake he is taken to is advice on a prosecutorial practice severely criticised in the Hamilton case: charging theft and false accounting to encourage (or pressure or bully) plea deals to the lesser charge of false accounting.

This criticism is picked up by Second Sight and by Sir Anthony Hooper in the mediation scheme.

Clarke drafts a letter for the Post Office seeking to rebut the criticism, saying false accounting is not a lesser charge because it has the same maximum sentence as theft. Anthony Hooper regarded this as not reflecting the real world. If you will excuse me for a brief sweary interlude, I think this is judicial language for disingenuous bollocks.

Simon Clarke’s defence?

“I think in terms of pure black-letter law, I was correct; I think in terms of real-world behaviour, he [Hooper] was correct. …people do see a plea of guilty to false accounting as being a plea of guilty to a lesser offence than one of theft. I accept that. My advice was directed, because sometimes I think that way, as a direct linear black line letter, both carry seven years, they are both offences of dishonesty, they’re equal. But I think Sir Anthony was right on his real-world take.”

It is a castle is a house because it has a front-door kind of argument.

Mr Blake: There are those who watch this Inquiry who are interested in legal ethics.

Simon Clarke: Yes.

Mr Blake: Looking back and reflecting on that, do you think it was part of your job to reflect also the real world as opposed to the black-letter law?

Simon Clarke: Yeah, I think probably it was, yeah.

Disclosure and other developments: case hardening or eyes opening?

Two particular things emerge from the Inquiry’s general consideration of his approach to disclosure.

One is how he can see now that he got several (more) decisions wrong.

Advising the Post Office to make limited disclosure to put the ball in their court was wrong. There was further information he should have to them.

His more general failure across cases to disclose his knowledge and assessment of Jenkins's reliability was wrong.

His approach to the Helen Rose report was, I think he also accepts, often wrong as was the downplaying of its significance that occurred.

He admitted he would not stand by his failure to disclose either the Second Sight or Helen Rose reports in the case of Hutchings, saying, “we probably got a bit case hardened, bit cynical, and we shouldn’t have done…” (140)

Even when made, the way disclosure is made is criticised for inadequacy. Clarke resists the suggestion that his draft to the CCRC is not clear about the problems with Gareth Jenkins. Of letters to sub-postmasters that watered down or de-empahsised the extent of Horizon problems he agrees his advice, “was ill judged and inappropriate”.

A second is that while discussing disclosure, he suggests that over time, the inadequacies of the Post Office as a prosecutor were dawning on him. Things were not being done on cases that ought to have been, he said. He had spotted issues in pre-2010 cases that suggested the cut-off needed to be reviewed rather than worked around ad hoc.

And he saw the Post Office’s “prosecution policy”. This he plainly saw as a risible document. He said it was not really a policy at all. It was entirely inadequate.

As an interesting aside, he drafted a replacement policy, which he then regarded as being watered down by a subsequent draft by Brian Altman KC.

It is a curious tension in his evidence: he had started to see more flaws in the prosecutions but, at the same time, became more battle-hardened to the cases he was reviewing. To be fair to him though, some of the flaws he talked about here he was identifying with hindsight.

The reviews of Seema Misra’s case

Mr Clarke reviewed Seema Misra’s case twice. In a review in January 2014, he noted the reliance placed on Jenkins as a witness and that he had only disclosed material to Misra’s expert on a piecemeal basis. Asked if this caused him to rethink the 2010 start date, he says, “I think I raised that with Brian Altman after I did this advice in one of our conferences but that was pretty much the first inkling that I had that we ought to have gone back further.”

It is while being taken to the mishandling of the Misra case, he admits, “My conclusion that Gareth Jenkins was a wholly unreliable witness. I accept that -- now that that was wholly disclosable from day one.”

It may indicate his embarrassment that it is at this point in his evidence that he alleges the full Misra file was deliberately withheld from him. He also then alleges that Post Office colleagues were misleading him on a wider basis when saying there was nothing wrong Horizon.

I put his claim that he too was a victim of Post Office mendacity alongside his claim of the ‘big win’ of stopping prosecutions by the Post Office. There may be some truth in both, but it is also worth remembering that while ‘stopping’ prosecutions, he recommended a plan of action for restarting them. The search for a new expert was abandoned by the Post Office, he thinks on the grounds of cost.

He also travelled to Scotland to dissuade Scottish prosecutors from permanently stopping Horizon prosecutions while they sought a fresh expert and reviewed cases one by one.

He also claims some of the cases stopped were done so on public interest grounds when Counsel shows, although Clarke does not accept this, that they were stopped for evidential reasons. They had realised they could not prove the reliability of Horizon.

Whilst he would like to present himself as something of a hero for stopping prosecutions (and to be fair, some details of context aside, his initial advices on Jenkins and shredding were strong) and a victim of the Post Office, his view is confounded by also being their main defender.

His disclosure and other decisions were marked by a concern for the Post Office’s reputation and containing the problem. He concedes a catalogue of errors and inappropriate influences on his decision-making.

In considering his mistakes, we are entitled to wonder how influenced they were by expediency, a deliberate, tough prosecutor, forward not back, fixing things for the client rather than in the interest of justice kind of approach. His failure to follow his initial instincts and advice on the Jenkins problem and to follow up the shredding advice are deeply concerning. His evidence on these might not be accepted.

Why he changed his mind we could speculate on. Mood music? A conscious or unconscious turning away from a manifest risk? The need to grapple with Bond Dickinson if they pushed matters harder? The considerable fee income at stake? The tumult of crisis? The sense that it was not his job, or his firm’s, to do more than he did? A lurking intuition of the conflict of interest that lay within their files? The litigator’s habit of avoiding and containing problems that one never expects to be challenged on or held accountable for? All or some may have played a role.