Ermine Truth, what happens when the Big Guns misfire?

The Inquiry opening raises uncomfortable questions for some very senior lawyers.

Day 2 of the Inquiry this week, and Independent Counsel turned to the question I am interested in: where were the lawyers and what were they doing? As a result we can discern the general and more central questions the Inquiry thinks it worth posing about the lawyers. We also learn a good deal more about the involvement of three very senior figures in the legal profession: Brian Altman KC, Lord Grabiner KC and Lord Neuberger, a former President of the Supreme Court, as well as what happened in and around the Swift Review.

There can be no doubt at all now that the advice given, and the instruction on which they were based, are a central part of the Inquiry, alongside many other aspects of the legal work done by and for the Post Office.

These include:

• the way the outcome of legal cases, where Horizon was challenged, or queries raised, were represented within the Post Office as supporting the reliability of Horizon.

• The so-called CK Sift Review (where Cartwright King reviewed the handling of its own prosecutions for the Post Office of all cases conducted since 1 January 2010. “The Inquiry will, in due course, ask to what extent this exercise was truly independent and whether it was sufficient in its oversight.”

• Why the issues raised in the Clarke advice and the advice itself, “which was so important to the Court of Appeal's subsequent findings, were not disclosed earlier by the Post Office.”

• When Clarke advised against the shredding of disclosure records, “what it was that the Post Office had destroyed and look into whether there was a culture of not recording information, of document destruction and of withholding important information from disclosure.” In essence, PO sought to deny shredding in the Court of Appeal.

• Who knew and how they acted on the Clarke advices.

• In relation to the Detica report commissioned, “by the Post Office's head of security, John Scott, and its legal and Highlight compliance director, Susan Crichton. …what was going on at executive level and at board level in that period, and in the period that followed.” The Detica Report indicated Horizon was not fit for purpose and it was a matter so material Crichton would have had a professional obligation to disclose to her client, so I would argue she had to tell the CEO and Board.  It was one report amongst several, especially Second Sight’s second report, which should have given the Board clear warning about the problems in the Horizon system whilst PO sought to convey publicly there was no systemic problem with Horizon. As did the then Minister, George Freeman MP.

• “The Inquiry will ask how it was that it took so long to admit,” remote access, “a matter that appears to have been denied by the Post Office, right up until partway through the Group Litigation.  

There is a considerable section of the opening devoted to Brian Altman KC. Brian Altman’s role is prefaced in a way that emphasises his experience and seniority:

“Mr Altman had advised the Post Office over a considerable period of time, including representing the Post Office in the Court of Appeal in criminal appeals. He was formerly the most senior prosecution barrister in England, known as the First Senior Treasury Counsel. For the purposes of opening, I will begin on 2 August 2013, that's after the Helen Rose Report, the Interim Report of Second Sight and the Clarke Advice.”  

On 2 August 2013, Mr Altman provided an, "Interim Review of Cartwright King's current processes" saying it appeared to be "fundamentally sound", but limited [oddly] only to English Cartwright King cases within a limited time period. “He also advised that they should consider the extent to which non-disclosure by Gareth Jenkins was the only issue potentially forming any grounds of appeal or  whether the review should be broader.”

Altman also,

“raised the issue of a possible conflict with Cartwright King, essentially marking their own homework. But Mr Altman's advice in this respect, was "there is benefit in Cartwright King and its internal counsel identifying and engaging in the review of impacted cases, as they are familiar with their case files and intimate with the process".

This is important it indicates, a sadly all too common, fudging of a core professional obligation. If there is a conflict or substantial potential conflict there is not a discretion to wish it away with this kind of pragmatism.

To my mind, this same problem may yet bite the Post Office again, with the involvement of members of its own legal team and Herbert Smith Freehills in particular in the handling of the Inquiry work. HSF had a role in Bates. Bates is the subject of the Inquiry’s investigation. There seems to me to be a real and substantial risk of a conflict. I was slightly surprised this was not raised during the week’s skirmishes on disclosure.

Anyways, to return to the Inquiry openings, and Altman’s initial view of the CK Sift, I don’t think it too waggish a point to say this is a very odd set of characteristics for something fundamentally sound: wrong remit, conflict of interest, but apart from that it was fundamentally sound. If you say so, boss.

Altman asked to “dip sample some of their work in due course” and “considered two copy prosecution files, something that does not appear later to have been reflected in a submission to the Court of Appeal in Hamilton, namely that this advice considered a review of the process, though not the individual decisions in reviewed cases.” So Counsel is gently pointing out, but pointing it out nonetheless, that it appears the Court of Appeal was misled in Hamilton as to the extent of Altman’s role. He does not deal with whether this was done knowingly or recklessly.

It becomes clear that the involvement of Altman was considerably deeper than known previously. The Swift Review revealed a lot but this opening revealed more on the detail but also the extent of his involvement. He advised, for instance, “considerable caution in relation to mediation cases” apparently referring to Seema Misra “intention to be within the scheme”. Given the Clarke advice, and Gareth Jenkins’ involvement in that case, this is very interesting indeed. His concern appears to be to inhibit the production of information useful to those who wish to pursue an appeal, like Mrs Misra.

In October 2013, Altman’s "General Review" again supports Cartwright King’s review work as “fundamentally sound” and also agrees that Gareth Jenkins was "tainted and his position as an expert witness is untenable.” Counsel to the Inquiry notes here 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.” And indicate, “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.” As well as “looking at how the advice that was being given in relation to the approach to mediation and the subsequent Group Litigation, influenced or was influenced by advice that was given in relation to the criminal appeals.” There is also a pointed reference to the quashing of Seema’s conviction being, “some eight years later.”

One might speculate here that Altman’s advice on the mediation might have contributed to the delay in writing the wrongs she suffered and could have meant it never came to light. That is serious stuff. It is also worth noting that Brian Altman was asked in Hamilton specifically to explain why disclosure had not occurred in Seema Misra’s case: he said they did not know.

In December 2013 he advised in a "Review of Post Office Limited Prosecution Role". There is an odd, for an opening speech focusing on the main paths of the Inquiry’s investigation, dwelling upon what might ordinarily seem trivial:

“This advice contained, at the end of it -- and we'll see this when we come to examine it -- a brief CV of its author, Mr Altman, by way of footnote, and recorded that he had been First Treasury Counsel and was, amongst other things, a recorder of the Crown Court and a Bencher of Middle Temple.”

And says this:

“The Inquiry will consider what role advice of this kind, presented in this way, had in the Post Office's subsequent conduct and whether advice of this kind provided the Post Office and its leadership with a comfort blanket.”

There is then a slightly absurd, but also troubling, episode which may provide some insight into the way advice was called upon from Altman. He is asked to advise on whether some of Cartwright King’s advice is defensible. It arises in the context of defending the PO against allegations from Second Sight that, “[the Post Office] is abusing its prosecutorial role by charging subpostmasters with theft, when there is no evidence of it, in order only to pressure subpostmasters into pleading guilty to false accounting.” CK say it could be rebutted because the claim that, “the offence of false accounting was a less serious to that of theft, was incorrect because they were both offences of dishonesty and both carried the same maximum sentence”. The Post Office already knew that Sir Anthony Hooper [chair of the mediation scheme and former C.A. judge], “had said that false accounting was a lesser charge than theft”.

Advice from Mr Altman was sought, “to ensure that the statement made to Second Sight to the contrary by the Post Office was "defensible.” This is is an example of the poisonous practice of asking for advice on the wrong question and it will be interesting to hear more fully how Altman responded to, what I would argue, is transparent abuse of his function. We do know that, rather than simply say no, he said something to the effect that, “The only argument that may be advanced to defend the statement is that it is accurate 'within the narrow context within which it was stated'.”

It is worth quoting counsel in full here:

Third, the point was that false accounting may be a lesser offence, and may often be a lesser offence in the context in which it is charged, so to argue that it is not a lesser offence is not accurate; it all depends on the circumstances of the individual case.

Fourth, the statement was undermined by the fact that the seriousness or otherwise of any offence of theft or false accounting must always depend on its own facts, as is demonstrated by the many ways in which such offences may be committed, and how offenders may be sentenced for them.

What does not appear is a blunt and unequivocal statement to the effect that, where both theft and false accounting are charged for the same conduct, the charges of false accounting may be seen as less serious, which appears to be exactly the point that Second Sight and Sir Anthony Hooper were both identifying. Also not addressed is whether, in practice, an innocent person may be more likely to plead to what may be perceived as a less serious charge and whether barristers and solicitors are likely to advise their clients that false accounting is, in practice, less likely to result in a prison sentence.

I am not clear, and a written version of the statement with proper quotation marks might help here, whether the last paragraph is Jason Beer KC’s analysis of hte advice or Altman’s actual advice. Counsel appears to be saying Altman’s advice may not have been sufficiently clear here in saying that the answer to the question is CKs advice defensible was no.

On the Swift Review, the basis of its conclusion, “that the Post Office had acted reasonably in its handling of disclosure issues” will be investigated. “Was the Swift Review given sufficient disclosure by the Post Office [that their in-house legal team managed], for example, in this regard? Was there information that this Swift Review was not provided with which might have altered the conclusion? Was too much reliance placed on the previous advice of Mr Altman and the Second Sight review?”

And the Inquiry will investigate how widely the Swift Review’s strong advice on the need to investigate whether PO bullied SPMs into guilty pleas (precisely the point that Altman had equivocated on if my interpretation above is correct), “was shared and, if not, why not?” Including why, “the advice was not shown to the board” [if reports that it was not were correct].

Similarly, the raising of remote access in Swift, “was a matter that appears to have been denied by the Post Office until 2019, until part way through the Group Litigation, yet it was raised as a significant issue once again in this review, in February 2016. The chairman, Tim Parker, on behalf of whose review this took place, chaired the Post Office throughout the Group Litigation. The Inquiry will investigate what, if any, action was taken by him at this time.” Well, quite.  

“The Inquiry will seek to establish what action was taken as a result of that advice.” And, “The Inquiry will be considering what information was provided to the Swift Review and, in particular, whether the authors were aware of all of the information which raised reliability issues, which I have mentioned over the course of the past day and a half. If they were not provided with this information, was that intentional and who made the decision not to provide them with it? Why did the authors meet, amongst others, Gareth Jenkins, and what did they know of the concerns that had been raised concerning his credibility?”

And they seem interested in exploring how the often repeated view that "there were no systemic problems with the Horizon System" shared by the Government Minister at the time (Paul Scully) came about. “You will hear about who saw the full report and when and, where it wasn't shared, why it wasn't shared.”

Altman did in response to Swift advise on the bullying into guilty pleas claim. He concluded,

“the allegation that Post Office had operated a deliberate policy to charge theft, when there was no or no sufficient evidence to support it, just to encourage or influence pleas of guilty to charges of false accounting is "fundamentally misplaced". "Not only is there no evidence of such a policy, there is positive evidence that such that each case was approached both by internal and external lawyers professionally and with propriety and, unquestionably, case specifically." He went on: "Not only have I found absolutely no evidence of the existence of any such policy, I have also not discovered any evidence in the cases that I have been invited to review that theft (or fraud for that matter) was charged without any proper basis to do so and/or in order only to encourage or influence guilty pleas to offences of false accounting.

We know the Court of Appeal disagreed. And we know that Altman reviewed “eight individual cases that were apparently selected because they were high profile cases within the Group Litigation or CCRC cases.” This is how Counsel to the Inquiry dealt with the incongruity.

“The Inquiry will investigate how this advice fits with public comments that have been made by Sir Anthony Hooper, who was directly involved in the mediation process.  He had expressed views most recently that he pointed out to the senior management of the Post Office that there was unlikely to be theft in the cases that he had seen because of number of factors, including, first, the previous good character of the postmasters concerned; secondly, the shortsighted nature of any theft, given that the subpostmasters would be liable to make up any shortfalls; and, thirdly, that there was nothing to suggest that they were stealing and no actual evidence of financial loss. For him, the more likely cause was that it was down to Horizon.

“Mr Altman also provided an advice called "Advice on settlement" which addressed the risk to the safety of convictions if Post Office entered into settlement with any of the claimants in the Group Litigation.” (17 July 2019). He cautioned against “Any admission of wrongdoing by the Post Office” Because, "any public apology …risks misinterpretation or the implication of an admission of fault". And there was "a real risk of Post Office taking an approach which could be interpreted as incongruous with the processes it instituted as a prosecutor". Which, “would invite critical scrutiny not only of Post Office's prosecution function but also of its prosecutorial decision making function during the pre-trial and trial processes. " And, “Settling or seeking to settle "may be viewed as a sign of weakness, a lack of confidence in both its civil and criminal cases …which will potentially open the settlement agreement (or the rationale underlying it) to consideration or questioning by the Court of Appeal as part of any [criminal] appeal/reference hearing." And, “There was, in Mr Altman's judgment, "some risk to the safety of convictions of including convicted claimants in any settlement agreement or package.”

Counsel emphasises the significance of these points like this:

As I noted in respect of the earlier advice, the Inquiry will look at the role that advice of this kind from senior lawyers had on the strategy that was adopted by the Post Office towards mediation and settlement. "Is it right to delay or avoid settlement because of the impact that it might have on a criminal appeal?" is the question that might need to be addressed.

I’d put it like this, has Altman put his desire to protect the Post Office, its prosecutions, and by now perhaps his own role in scrutinising them, over and above the public interest in the administration of justice and his obligations advising a prosecutor to behave fairly.

He’s still not done though as “Further advice was provided by Mr Altman on the Common Issues Judgment and the Horizon Issues Judgment.” Advising, “on the impact of Mr Justice Fraser's judgment on criminal convictions and resultant disclosure obligations.” Here the Inquiry seem interested in whether Altman’s instructions were adequate, with sufficient disclosure for him to be able to advise.

They move onto the strategy in the Bates litigation. Starting in an interesting place with a letter from “Womble Bond Dickinson to the Post Office, summarising advice that it had given at a conference on 8 June 2016, it states that Tim Parker, the chairman of the Post Office, was continuing to consider the recommendations from the Swift Review, which I raised earlier. The letter says that the "very strong advice" was for Mr Parker's review to cease, with some of the recommendations being implemented by the legal team to seek to preserve privilege.”

In lay terms, although it may have been tactically appropriate advice– we shall have to see and I would need to think about it, they were advised to choose secrecy over trying to do the right thing. I think this indicates a real problem with the operation of privilege by practitioners. It also suggests to me, although it is not stated in the Opening speech, that WBD would have had knowledge of the Swift Review and that may mean they knew that the Post Office had been told remote access was possible, this is something denied in the litigation for some time.

On the advice received by the Post office before and during the Bates litigation, Counsel to the Inquiry says this:

“You will wish to consider the content of the advice received, the extent to which the Post Office relied on it and whether it was reasonable to do so ….it will be necessary to consider broadly the merits of such advice [and the question will not be was the advice right but ] whether the advice on which the litigation strategy was founded was within the range of what a reasonable practitioner might consider to be appropriate.”

“Moreover, you will wish to consider whether those legal professionals were being given sufficient information to advise the Post Office and Fujitsu.”

The Inquiry is also plainly interested in the central role played by Gareth Jenkins in the Bates litigation, a scandal within a scandal

Perhaps the most newsworthy element of the focus on lawyers is in relation to the recusal application, prompted by a perception that Fraser J was, “not willing to call out bad conduct by the claimants' lawyers even when it is blatant.” We are told, “the Post Office's legal team gave initial advice that "the judge's approach is astonishing; it is unfair and unprecedented. With no hesitation, we strongly recommend lodging an appeal." And they recommend considering a recusal. “The Post Office sought further advice on this issue from a former President of the Supreme Court, Lord Neuberger, and Head of his Chambers, Lord Grabiner, in respect of the application for Mr Justice Fraser to recuse himself.”

Neuberger provided written advice saying “there were reasonable grounds for the Post Office to bring an application to recuse the judge, and that the Post Office "has little option but to seek to get the Judge to recuse himself at this stage". Something which unusual but perhaps merited by the situation is that, “Lord Neuberger is subsequently noted to have attended a Post Office Board Meeting and provided advice.” And “Lord Grabiner is noted to have given strong advice in conference that the Post Office should pursue the recusal application.”  

Lord Grabiner explained that in his view if there is no recusal application made then the Post Office will lose the series of trials set up in this matter. Without a recusal application, Post Office is stuck with this judge. An appeal on the law may correct some of the very significant errors in the Common Issues Judgment, but then the case will be sent back to this Judge who has demonstrable apparent bias against Post Office and hence the firm conclusion that Post Office will lose and the financial impact of that will be substantial. Recusal is therefore essential, and Lord Grabiner asserted that in the face of legal advice from Lord Neuberger that recusal should be applied for, and the quantum of damages that Post Office will pay out on a loss, then it was Lord Grabiner's view that there was a duty on Post Office to seek recusal. Lord Grabiner stated that in his view, the Board of the Post Office had no option but to seek a recusal."

This advice strikes me as incredibly strong, suggesting the Board were obligated to take the application. We do not hear whether the Inquiry will look at whether that advice was within the bounds a reasonable practitioner would advise. Nor do we hear whether the double-header of Ermined advisors Grabiner and Neuberger was being deployed to push more reluctant board members to reaching for what was acknowledged to be “the nuclear option”. What we hear instead is from the INquiry, perhaps with a certain weariness:

Once again, the role of lawyers, some of them senior, the sufficiency of the information they were given, and the extent to which they were relied on informing the Post Office's litigation strategy will be examined.

Nick Wallis has written two very on point blogs one about Grabiner and Neuberger and the other on Altman.