Helping, with hubris

Did Boris Johnson's lawyer help exonerate dozens of sub-postmasters who had been wrongfully convicted?

Tim Shipman, who for those unfamiliar with his oeuvre, writes riveting copy for the Sunday Times about the machinations of government, described Boris Johnson’s Counsel to the Covid Inquiry in glowing terms at the weekend in the Sunday Times:

Johnson has had the best help taxpayers’ money can buy. His KC, Brian Altman, is described by the Legal 500 guide to the best lawyers as “the heavyweight champion of the inquiry world — a brilliant operator”. Altman’s most recent success was helping to exonerate dozens of sub-postmasters who had been wrongfully convicted. He was instructed in that case by Nick Vamos, a solicitor at Peters & Peters, who is also Johnson’s solicitor. Like all former ministers, his legal fees are being paid by the Cabinet Office.

Given the centrality of Brian Altman to the Post Office Inquiry (his name occurs 36 times in Counsel to the Inquiry’s opening statement to the Inquiry) he’s an interesting choice to represent Mr Johnson but rather than deal with that side-issue, I write today to correct the impression that Mr Altman helped the sub-postmasters. He did not. He helped prolong their agony. Helped keep their injustice under wraps perhaps. Might have extended it further and deeper had he had his way. But help with their exoneration he did not.

For those unfamiliar with the scandal, dodgy prosecutions of subpostmasters by the Post Office began in the early Noughties and continued until about 2013 when an expert witness was discovered to have given unreliable evidence in cases that included the jailing of Seema Misra in 2010.

Mysteriously, anything like the full account of that 20133 discovery did not become apparent until 2021 when the Court of Appeal heard a large batch of appeals against such convictions.

Mr Altman represented the Post Office on those appeals. The PO had resisted those appeals on the second most serious ground (that the prosecutions were an affront to justice) but conceded most of them on less serious grounds (that concession is the closest we might come to anything helpful having been done here, but it was a concession made, I surmise, to avoid the deeper pain and cost of the Inquiry and compensation schemes which have now arisen).  

The PO lost, but Mr Altman’s non-helpfulness did not begin there. It began much earlier.

Mr Altman had a role in the cases from 2013 onwards, when serious problems in the prosecution of those cases became apparent.

I could opine in depth on the ins and outs here but let me simply draw on Counsel to the Inquiry Jason Beer KC’s opening statement to the Inquiry where he sets out Mr Altman’s role and you judge for yourself how helpful he has been.

On 2 August 2013, Mr Altman provided advice on Cartwright King (CK)'s processes for reviewing prosecutions in the light of the Clarke Advice, Second Sight’s interim report and the Rose report . All three documents raised red flags about prosecutions in the Post Office. The Clarke Advice said the problems were profound. Mr Clarke’s employer, Cartwright King set about reviewing post office prosecutions it had conducted for the Post Office. Altman was asked to review their review. He did so on a preliminary basis, quickly saying CK’s review was "fundamentally sound". Mr Altman considered two copy prosecution files as part of this process. Counsel to the Inquiry says, “that [consideration of the files] does not appear later to have been reflected in a submission to the Court of Appeal [he made] in Hamilton, namely that this advice considered a review of the process, though not the individual decisions in reviewed cases.” The question the Inquiry seems to raise here is whether the Court of Appeal was misled and if so how.

Mr Altman also advised on a mediation scheme set up in the wake of Second Sight’s interim report that had suggested there might be problems with PO handling of Horizon and prosecutions under it. The mediation scheme was supposed to investigate complaints of wrongdoing by the Post Office in relation to Horizon matters. It was a failure. Counsel to the Inquiry tells us, "[Mr Altman] advised considerable caution in relation to mediation cases involving previously convicted individuals (Seema Misra has already indicated an intention to be within the scheme).” Apparently concerned they might, “obtain information which they would not normally be entitled to in order to pursue an appeal."

Counsel to the Inquiry pointed out this took place eight years before Mrs Misra’s convictions were quashed. And then says, “A question that will be asked is that: should she and others in a similar position have been provided with more information and  earlier?  If so, why wasn't she?  What role did legal advice of this kind provide about exercising considerable caution in relation to mediation cases?”

On 15 October 2013, Mr Altman provided his "General Review", a written advice looking in more detail at CK’s review process.  He restated his advice that the work conducted by Cartwright King was, “fundamentally sound and that he had not detected any systemic or fundamental flaws in the review process or the evidence arising from it, albeit that that should be kept under review.”

On 19 December 2013, Mr Altman provided written advice on the Post Office’s Prosecution Role that concluded, “that he had seen no evidence to suggest that Post Office exercised its investigations and prosecution functions in anything other than a well-organised, structured and efficient manner, through an expert and dedicated team…” [I note in passing that this included meeting a key member of the team, PO criminal lawyer Jarnail Singh, who’s evidence to the Inquiry so far is well described here; tl;dr - any expertise or dedication seems to have deserted him].

“He concluded that there was no good reason to recommend that the Post Office should discontinue its prosecution role”. [This advice was not followed for reasons that are emerging in the inquiry but appear to be along the lines of the inability of the PO to find an expert (or perhaps an expert of sufficient calibre) to defend Horizon.]

Counsel to the Inquiry makes what might appear to be a rather strange excursion at this point in his opening speech:

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.

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.

On 8 March 2015, Altman gave “important advice” on the charging of theft and false accounting because Second Sight, forensic accountants independently investigating  complaints about Horizon and the prosecution of offences under it, were "beginning to advance arguments 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".

Cartwright King had advised that false accounting was not less serious to theft, "because they were both offences of dishonesty and both carried the same maximum sentence.” [It’s fair to say, I think, this is eyebrow raising advice]

Sir Anthony Hooper, former Court of Appeal judge and chair of the mediation scheme mentioned above, had also told PO, it seems, “that false accounting was a lesser charge than theft and that Second Sight were not incorrect to characterise it as such.” 

Counsel to the inquiry says:

The advice from Mr Altman was sought to ensure that the statement made to Second Sight to the contrary by the Post Office was "defensible". Mr Altman's …says: "If I may say so, the so-called 'equality' of the offences is an unnecessary and unprofitable focal point of attention.  The other issues raised by the letter have greater force and are defensible."

His conclusions at page 7 were as follows: First, both offences of theft and false accounting do involve dishonesty and do carry a maximum sentence of 7 years' imprisonment. 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'. 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.

In July 2016 Altman advises PO again following the Swift Review (another review by another KC) where Altman reviewed eight high profile cases. Counsel to the Inquiry describes this as follows, “Mr Altman concluded that those cases that fell squarely within the remit of his review were conducted in such a way that 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".”

And quotes from Altman’s advice:

"Not only is there no evidence of such a policy, there is positive evidence …that each case was approached both by internal and external lawyers professionally and with propriety and, unquestionably, case specifically."

…

 "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."

Counsel then says:

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 there was unlikely to be theft in the cases that he 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.

In July 2019 Mr Altman advised on, “the risk to the safety of convictions if Post Office entered into settlement with any of the claimants in the Group Litigation.” We are told the advice said this:

1.  Any admission of wrongdoing by the Post Office to convicted Claimants was to be avoided "as is any public apology that risks misinterpretation or the implication of an admission of fault".

2.  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".

3.  Settlement 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.

"4.  Settling or seeking to settle "may be viewed as a sign of weakness, a lack of confidence in both its civil and criminal cases by the convicted claimants, as well as the CCRC, who may then be encouraged to investigate 'the technical aspects' of the case heard the Horizon Issues Trial evidence and seek to appeal or to make a reference, 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 appeal/reference hearing."

5.  There was, in Mr Altman's judgment, "some risk to the safety of convictions of including convicted claimants in any settlement agreement or package".

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.

And finally,

Further advice was provided by Mr Altman on the Common Issues Judgment and the Horizon Issues Judgment. In the latter advice, Mr Altman advised on the impact of Mr Justice Fraser's judgment on criminal convictions and resultant disclosure obligations.  His advice was that appellants in the CCRC would have a high hurdle to overcome in respect of non-disclosure because they would have to show that it was material.  At the end of his advice, Mr Altman noted that the apparent late concession in the litigation to entries having been "entered/edited/deleted negligently or dishonestly" remotely was a "startling concession" and requested further information in that regard.

So how any of this can be described as, “helping to exonerate dozens of sub-postmasters who had been wrongfully convicted” beats me. That and the excursion mentioned above both smack of professional hubris. And although I cannot believe Mr Altman is anywhere near daft enough to say he helped postmasters with their exoneration, let me present a third example, a client testimonial that used to have top-billing on Mr Altman’s chambers website (it is now found here) selling his services:

Brian is unstoppable. Like a steam-roller, once he’s set his course, he won’t deviate from his path and will crush anything that gets in the way.

You could see why Boris Johnson would like that, I suppose.