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Swift I: The Perils of a Safe Pair of Hands?
One of a series of posts looking at the Swift Report
As a result of a well-targeted, FOI from Eleanor Shaikh – an activist supporting Post Office Victims - a critical document has been unearthed. You can read it here. I will call it the Swift Review, although it’s a joint report from Jonathan Swift QC, former First Treasury Counsel and now High Court judge, and Christopher Knight both of 11 Kings Bench Walk Chambers. When I speak of Swift I am speaking as a shorthand for the report drafted by both authors not just the more senior author.
This document raises a lot of issues for the Williams Inquiry and potentially for professional disciplinary investigations, although not on the evidence here for the authors of the report. There are also important issues for those who commission or conduct independent investigations if such investigations are to perform their proper purpose.
By way of background, this was a review commissioned by the incoming Chair of Post Office (Tim Parker, now outgoing) from two public law barristers in answer to requests from the Government (sole shareholder of Post office) that Parker as Chairman of the Post Office take concerns expressed about Horizon and Horizon Prosecutions seriously. There is evidence that a Panorama programme, which suggested Horizon was not as secure as Post Office had been saying it was and that there may have been miscarriages of justice, was influential on the Government’s concerns.
The report provides an interesting lesson in how “independent” reviews, even reviews conducted by esteemed members of the Bar can, deliberately or otherwise, sanitise or conceal wrongdoing in organisations.
We can see sanitisation is probably what happened in this case because the first public information on the review said this:
Apr 2016 Preliminary conclusion of the review by the POL Chair finds no systematic problem with the Horizon system.
That description emerged in a written submission by government Minister (Paul Scully) to a Select Committee. The impression sought to be given here is probably fairly described as nothing of substance to see here. As we shall see in subsequent posts it is very strongly arguable that this is a misleading summary of a report in which there was a great deal of substance to see.
In the posts that follow I concentrate on ways in which this independent review may have been flawed. I do so partly because of the concern that independent reviews are prone to be used as tools of corperate reputation management rather than as genuine reviews. This review was not, on our analysis, without the characteristics of a genuine review, it yielded critical points, but it was ultimately used for reputation management and the reasons for that may lie in the way the review was set up, managed, and conducted.
How were the authors chosen?
An interesting starting point for considering the review is how and why the authors were chosen. It is of some note that the review team were public lawyers not, for instance, criminal lawyers. Jonathan Swift QC was, or had been, First Treasury Counsel, the Government’s most senior counsel in civil cases and is now a High Court judge. We can assume the authors have very substantial experience and have excellent professional skills and judgment, but as their report notes, many of the matters raised before them related to the conduct of criminal proceedings, which they are not expert in. Similarly, they are not computer or accounting experts, and a substantial part of their report relates to understanding the Horizon system’s potential vulnerabilities. On technical matters they were able to speak to the consultants (Deloittes) already working for Post Office on some issues associated with Horizon and to Second Sight who had until 2015 been investigating Horizon.
One potential justification that might be offered for instructing public lawyers is PO’s quasi-public nature as a government-owned company and the nature of review. In essence it is a review of the PO’s governance of complaints about Horizon, the associated prosecutions, and other matters generally related to those two things. That said, no matters of public law are raised in the review: the legal matters insofar as they are raised at all relate to criminal law and commercial law (agency). Indeed, it would not be unfair to characterise the review as one that is not really engaged in the giving of legal advice. It is more a management review conducted through legal spectacles. An advantage of it having been done through legal spectacles is that it may be sufficiently legally informed to garner legal professional privilege. That and lawyers’ supposed facility with evidence and facts might be the reasons for instructing lawyers, but that still does not explain why these two barristers were chosen.
A practical impact of public lawyers reviewing matters is in their ordinary work they tend to review against two standards: legality (was anything done unlawful or without legal power) and Wednesbury unreasonableness (a test generous to the decision-maker requiring quite marked unreasonableness to be criticised as unlawful). That public lawyers might conduct this kind of ‘light touch’ review might be another explanation, but one does not have the sense from the report that the review is of that kind. This is true even though there are ways in which the benefit of the doubt is given to the Post Office through the review which I will come to in subsequent posts.
The instructions might more plausibly be explained by Swift’s status and experience as Treasury Counsel. He would be well used to defending government against accusations of wrongdoing. For a variety of reasons associated with this, he might be inclined towards downplaying complaints and problems made against a big organisations. He would certainly be well used to doing so for the Government. In this way, it is not at all unlikely that Swift would have been seen as a safe pair of hands who would not over-react to the everyday frailties of organisations or be overly sympathetic to the complaints of outsiders.
I am not implying anything sinister or inappropriate here; organisations instruct advisers who they believe they can trust, but is the sort of choice that can impact importantly on the review that results.
Although independent, those advisers have an ethical obligation (restrained by other obligations including the obligation to act independently) to act in the best interests of the client. An interesting unknown is how far such factors influence decision-making by the legal professionals in situations of doubt. I do know that lawyers are influenced by notions of client loyalty. There is of course economic interest in maintaining good relations with a client. But there is also social psychological work that shows how lawyers subconsciously shape their judgements to clients’ interests. I discuss these in some detail later, but for now, note that such work shows how advising on liability and quantum is impacted by client loyalty probably sub-consciously even in the absence of actual incentives to do and say what the client wants. Both conscious and unconscious biases may impact how evidence is weighed and findings (positive and adverse) are presented to clients.
Again, this is not a criticism of the authors of the report. It is simply part of the background to understanding how independent investigations are subject to influences that are difficult to control, even if well run. It is worth noting, though, that picking a safe pair of hands, understandable as that motive would have been if had been the reason, might reinforce those biases.
In the next post how the review was run will be considered.
 ‘2015/16 Review into Post Office’s Horizon System Instigated by BIS Minister - a Freedom of Information Request to Department for Business, Energy and Industrial Strategy’ (WhatDoTheyKnow, 19 January 2022) <https://www.whatdotheyknow.com/request/201516
_review_into_post_offices> accessed 17 September 2022.
 Paul Scully, Written evidence submitted by the Department for Business, Energy and Industrial Strategy (POH0006) March 2020, https://committees.parliament.uk/writtenevidence/1007/html/
 See the work referred to in Andrew M Perlman, ‘A Behavioral Theory of Legal Ethics’ (2015) 90 Indiana Law Journal 1639 in particular.