Gareth Jenkins and the Incurious Prosecutor?

What a mistake to make

So, this is the longest post. It is the main course of the Altman evidence session.

The main task that Mr Altman undertook for the Post Office was a General Review of Cartwright King’s review of past prosecutions prompted by the bugs Gareth Jenkins had told Second Sight about.

Simon Clarke of Cartwright King had advised Post Office that Gareth Jenkins had failed to disclose evidence of two bugs he knew about in his witness statements and to court. Second Sight had found out about the two bugs and were about to put it in their Interim Report to the Post Office.

If we think back to Sam Stein KC’s examination in the first post Altman had suggested had he been advising the CPS he would have advised them to turn out (review) all the cases, and look at what has happened. A point of much interest is no one, at all, ever, seems to have asked why Gareth Jenkins failed to disclose the bugs. They did not, as far as we know, ask him and what other bugs he might know about.

If it is an error, and it must be fair and proper to emphasise the omission might be a deliberate turning of the blind eye, it is a spectacular one.

Here we start to learn about that failure…

Jason Beer KC begins his look at the General Review by considering the extent to which Mr Altman was asked to advise on what he should be advising on. His draft terms of reference include the possibility of meeting Gareth Jenkins.

He dealt with it at the time in these terms [with Bond Dickinson where he is considering his terms of reference]:

"Not meeting and hearing him, where there may be questions potentially impacting on non-disclosure by him and his role as an expert, risks exposing the final report to criticism. However, this not a judicial or public inquiry with the formal receipt of evidence. This is something I shall need to think about carefully; at this very early stage I am not unnaturally undecided. For now it may be better for the terms of reference to remain silent about him."

He says initially he suspects his remarks about potentially being criticised were targeted at why Gareth Jenkins did not disclose bugs when he gave evidence at Seema Misra’s trial but that he ultimately regarded that failure as not material to what he was being asked to advise on.

Jason Beer puts to him that he might be turning a blind eye to a potentially useful source of information and that’s why he wouldn’t want to do it. Altman is at his most robust in tone, “I was not turning any blind eye to anything.”

He agrees he did not meet Mr Jenkins. He says he didn’t put Jenkins in the terms of reference because he hadn’t yet decided whether he should see him. He accepts he understood by this stage Mr Jenkins was a central figure. He says he did not investigate, because he wasn’t conducting an investigation. And he didn’t advise Post Office to investigate because he saw himself as simply giving advice on the impact of Mr Jenkins failure.

Beer sets about the plausibility of this by digging into why the issues of process and impact are inextricably linked.

We now know Jenkins was not properly instructed on his duties. Altman admits he cannot show he asked for a review of any instructions to Jenkins, at least he can’t remember having done so (he points out that there is no evidence that he did, rather than admit it). He thinks he probably just assumed Mr Jenkins was properly instructed. He can’t remember whether he checked with Cartwright King about it.

Beer suggests that by removing Jenkins from the terms of reference, the issue “remained shelved, didn’t it, never to be returned to?”

Mr Altman replies, “not during my review, no.”

To defend himself Altman returns to the idea he was only advising on impact, Jason Beer reminds him that, “You were given the opportunity to self define what you are asked to advise on?” And in essence Altman is unable to take it further, “you’re right, I was, that’s the only answer I can give you.”

That passage ends by the point being put, “weren’t you not loading the dice by excising him in this way.”

Altman replies, “I don’t see it that way.”

This extended and important battle between the two KCs leads to what is probably the central issue posed by Mr Altman’s review. By ignoring why Mr Jenkins failed, it risked ignoring matters relevant to whether disclosure should be made and what they were. Altman resisted this point because, he said, it would not necessarily make a difference.

Beer has a number of comebacks on how it would have made a difference. Failure to properly instruct Mr Jenkins might have been exposed and would probably have been disclosable. Altman concedes, as a matter of hindsight, that he could have done things better and asked to see Mr Jenkins instructions.

Altman is taken to other matters he also didn’t know about, in particular: disclosure of the receipts and payments mismatch bug to Post Office and its lawyers through the discrepancies document and associated email in 2010; and a document now being called the “three options” document which revealed a bug and the possibility of remote access.

Altman seems to accept these matters had they come to light, would have put an entirely different complexion on matters.

He accepts too broader failings on the part of the Post Office, relevant to the scope of disclosure would or might have been revealed; it may have changed his view about the Jenkins problem; he says, he might well then have said, “‘Well, perhaps I now ought to speak to him’ and find out what was really going on.”

He accepts it may have made a difference to whether or not he saw Cartwright King as operating under a conflict-of-interest.

And he accepts it might have been relevant to the idea that there was misconduct by the prosecutors and how deep within the organisation and how close to the lawyers it went.

This is a long and very difficult list of things he has to accept as being the possible consequence of his failure to consider the Gareth Jenkins problem.

He is taken to internal discussion with the Post Office at around the time he is being instructed as to how high up within the organisation knowledge of the receipts and payments mismatch bug went. The Post Office, in other words, were thinking about things he seemed not to have been. It is plainly concerning and he agrees he never saw any of it.

He also necessarily concedes that nothing was done to inform either past defendants or those being prosecuted at the time that Jenkins was now regarded as tainted and had wrongly withheld knowledge of bugs.

A. I think, unhappily, that has to be the case. I mean, with -- again, with the benefit of hindsight and having thought an awful lot about this, it's something that should have been considered for disclosure and disclosed in appropriate cases, no question.

He says it’s something he thought about in recent weeks. He does not tell us if he thought about it previously, in particular when advising on or conducting the Hamilton response in the Court of Appeal.

And it is made clear that it is not simply the failure to disclose bugs that was important, the assessment by him and Clarke of Jenkins’ credibility was also disclosable. Not the advice itself, but the assessment. That assessmnet, needless to say, was not disclosed. It wasn’t a question of shielding the assessment behind legal professional privilege, he says:

“-- if I had applied my mind to the fact that Gareth Jenkins' credibility was in issue and his assessment as an expert was in issue, I think I would ultimately have advised that that ought to be disclosed in appropriate cases. I clearly didn't. I can't think now why I didn't. I'd like to say it was a misjudgement but I'm not even sure there was a judgement. I don't know why, I think we were – if I have to think back and speculate, I think the focus was so geared towards these two new bugs that that just slipped thorough, as it were.”

If one accepts this explanation, he did not turn a blind eye; his eye was simply blind to the problem and remained so.

The Cartwright King sift concentrated on whether only two document should be disclosed, the Second Sight report and the Helen Rose report. They did not reveal anything about Gareth Jenkins’ knowledge of the two bugs. The problem with him remained hidden.

He concedes that is a further problem. And Jason Beer rubs it in. “Is it a little worse than that, though?” He says because, the Second Sight report suggests disclosure of the bugs came from the Post Office when in fact it came from Gareth Jenkins.

He agrees. That was another point that didn’t register at the time he says. “I don’t think anybody made that link.” And then, in evidence quite often prefaced (quite properly) by his lack of actual recollection he says, “in fact, I know no one made the link. I certainly didn’t.”

He concedes too that there was no investigation into how wide knowledge of bugs and defects pre-2013 went, he never advised such an investigation. He says, “I don’t think it crossed my mind that it went wider than Gareth Jenkins.”

However later in his evidence, when he was taken to his interim review, he is shown to be aware early on in his instruction that problems might go broader: he raised the possibility of Post Office “manipulating its prosecutorial function in order to embark on debt recovery” and that a spot review suggested a problem with the proper functioning of the system.

Having raised these issues for possible inclusion in his review, they do not appear to have been pursued. He does not know why, but he seems clear that his suggestions were not followed up. We are taken to evidence suggesting it might have been Bond Dickinson arguing against this in the background, but he was not aware of that.

In a sign that his concessions did not amount to an acceptance of responsibility for the miscarriage of justice, he tries to suggest his failures (in 2013) were not responsible for the miscarriages of justice emerging so late (2019/20) because, he said, the CCRC had sufficient information in 2015 to enable them to take up the points.

He is also asked about his failure to disclose Jenkins credibility problem more specifically in the context of the Seema Misra case.

There is an extensive discussion of his role in relation to resisting her inclusion in the mediation and the possibility of apologising. On the latter, he says in essence, the Post Office apologising to people who have pled guilty whom they do not accept have grounds for appeal made no sense to him.

He recognises this is an unappealing argument, but it is, he says, a principled one.

He also says the idea that the mediation might be a fishing expedition for evidence came from Cartwright King or the Post Office and not him (in his General Review he refers to it as an “understandable concern”).

And he rejects the interpretation of his advice (that Cartwright King should control disclosure in the mediation, as being anything more than they should supervise it: note and audit what information was being recorded). The way he later defends a Post Office letter resisting CCRC’s request for his own General Review as checking the basis on which the CCRC was requesting it is, I think, a clue to what supervise might mean here. He was worried that the mediation was an “uncontrolled environment”.

Seema Misra’s case is a perfect encapsulation of the problems with Altman’s failure to disclose Jenkins’ credibility problem and the decision to generally review cases from 2010 onwards (although Misra’s case was reviewed and Altman told them, contrary to Simon Clarke’s advice, to make the limited disclosures they had made in some post-2010 cases).

Altman supported Cartwright King’s decision that the 2010 cut-off was logical. He did so on the basis that the two new bugs that Second Sight had identified were only found in the new version of Horizon brought in by the Post Office in 2010 (Horizon Online). He failed to consider the fact that the tainted Mr Jenkins had given evidence pre-2010. The weirdness of the error is obvious. If a witness is tainted after a date, why not before it?

What is interesting about this decision, apart from the flawed logic of it, is that Altman had red flags raised over it by the flaws in Simon Clarke’s own reasons for the 2010 cut-off. He was aware as a result of how convenient to his client’s business interests this was. Clarke appeared influenced by the extraordinary idea that pre-2010 cases were generally water under the bridge and looking back further would raise reputational problems for the Post Office. A decision that started from such a flawed position must have screamed our danger. Asked which of the four factors Clarke identifies that Altman disagrees with, he says, “I didn't think any of them.” He means all of them were wrong. His general review criticised Clarke’s reasons but the 2010 cut-off remained.

The decision was in essence to review cases after 2010 only and wait for cases, such as Seema Misra’s to present themselves as requiring review if pre-2010. This put the onus back on those who did not know about Gareth Jenkins to raise problems like Gareth Jenkind. Mr Altman sough to present his advice here as entreating Post Office and Cartwright King to remain alive to the need for a subsidiary review of pre-2010 cases.

Whether or not one sees this as one mistake (the credibility problem of Jenkins needed to be disclosed) or a series of mistakes… Jenkins as the source of the undisclosed bugs, their assessment of Jenkins’ credibility; concentrating on two documents; the failure to investigate his instructions; the failure to investigate why Jenkins did not disclose the buds; the failure to investigate whether there were other bugs (which Altman does not concede they should have done); the 2010 cut-off (Altman does not accept this was a mistake either), one other thing is worth noting.

There is I suppose a sense, very lightly expressed, of regret at the mistake but for the consequences? No mention. And I did not spot an apology. And for the 8 lost years between 2013 and 2021? There was a laying of blame for that at the CCRC’s door.