Swift III: How legal framing can shift the balance of reviews
This post moves on from the quality of the evidence base to consider how legal framing can influence how reviews analyse and present their findings.
The structural evidential advantage in favour of the Post Office, discussed in my previous post, might also be reflected in some judgements made within the report about matters of law. Swift and Knight accept and dwell on the claim that SPM’s are agents of the Post Office. They partly relying on the High Court’s decision in Lee Castleton’s case. Whilst it is not surprising that Swift would accept the argument in the judgment, it is accepted by Swift without the Review (or the original court) hearing from anyone capable of arguing the other side. In Bates, the agency point is roundly rejected. Here we see a way in which structural advantage of an erroneous legal judgement (Castleton) has accumulated over time and contributed to arguably poor decision-making. It is of note too that the reviewers did not look at the actual contract between post office and sub- postmaster’s (para 17).
It seems reasonable also to say the inclusion of the agency point in the review is a curious one. There is no real need for it. They say this means, “the burden of proof is on the agent to show that the account is wrong” (para 19). And, “it is important that the relevant legal context be clearly set out as it clearly shows the nature of POL’s own obligations.” (para 21). It is so clear to them they do not explain. The review does not set out how this shapes the obligations of PO or how it has impacted on the judgment of Swift and Knight but we must assume it shapes how the reviewers saw the evidence before them. It may be one reason they downplay evidence of SPMs concerns (engaged with only second hand in any event). It is a subtle legal justification for deciding against the SPMS in situations of uncertainty, a legal rationalisation for discounting SPM viewpoints, or a tilting of the burden against them. And, as it turns out, Bates shows it was also an erroneous view of the contract properly understood.
Again, an interesting question is where this view came from: was it a view they were invited or encouraged to take as shaping their review? If so by whom and on what basis? This may be one of several arguments deployed by PO’s legal team to manage the review towards safer conclusions. In the same way as sexual misconduct investigations that rely on criminal evidence standards can lead to investigations which evidentially favour the accused over the accuser, so the agency standard here shapes, it seems, the balancing exercises in favour of PO management.
The legal framing is important not least because Swift’s view is redolent of the arguments run in the Bates litigation. It prefigures the nature of the case offered in Bates: did Swift shape that strategy or was the Swift Report merely reflecting Post Office thinking? One of the reasons for the problematic arguments run by Post Office in Bates was that evidence was led which described how management thought the system should be running rather than how it was actually working on the ground. The agency argument helps them to do that. Swift sometimes relies on how things ought to have been working (or presumably how they were told it was working) rather than evidence of how it was actually working. Again, this is not surprising, it is a structural feature of such investigations, but it is an important emphasis of the point made in the previous blog, that information sources from the Business come with the assumptions of those providing the information and with the organisational culture and biases baked in.
The Post Office in Bates also relied on information from Gareth Jenkins. Jenkins effectively gave evidence by proxy by providing information to PO/Fujitsu staff who gave evidence in Bates without being called himself. The Bates trials took place in 2019. Jenkins was a Fujitsu Engineer discredited as unreliable by Simon Clarke’s advice in 2013. And we see above that Swift too spoke to Jenkins. A concern then is that Swift may have heard and accepted evidence from Jenkins and the management line within Post Office without subjecting it to sufficient critical scrutiny. Another way of putting the situation is it suggests the review looked at the Organisation’s work largely in and on their own terms. Given the history which the Swift authors would have been aware of this is a concerning approach to take.
Swift seems much influenced too by a concern that evidence of false accounting was widespread. The nature of this evidence is not clear. There is a very interesting question, not discussed by Swift at all, whether there was any dishonesty by SPMs in false accounting cases given they were frequently advised to accept accounts (by Helpline and PO staff) to keep trading. They may effectively have been directed or encouraged towards giving false accounts as a requirement of them continuing trading. This is another instance where the absence of consideration of SPM perspectives, and criminal law knowledge, may have lead to flawed judgments. As public lawyers they may have uncritically accepted a position offered to them by the Post Office. The framing of sub-post master behaviour in this way is, of course crucial; it encourages the reviews to think of SPMs as dishonest an unreliable,
In this way, the evidence base (dominated by the Post Office’s own view of its history) and the legal frameworks applied limit what they can or are likely to find. It is worth mentioning here, that inspite of these limitations the review does identify presciently several very important and substantial weaknesses in POs approach which we will come to, but the way they are presented may have been affected. I will turn to that shortly, but in the next post I will look more closely at the way in which a concerning evidence source is dealt with, what that appears to reveal, and how that is handled by Swift.
 ‘Post Office Ltd v Castleton  EWHC 5 (QB) (22 January 2007)’ <https://www.bailii.org/ew/cases/EWHC/QB/2007/5.html> accessed 21 July 2021.
 Lee Castleton conceded he was an agent whilst a litigant in person and so the matter did not receive full scrutiny in that case. In Bates the idea of agency was roundly rejected.
 This is not the place to consider the rights and wrongs of this approach. There are arguments on both sides.
 Bates No 6 (n 8).
 R v Eden (1971) 55 Cr. App. R. 193