Discover more from Richard Moorhead Thoughts on the Post Office Scandal
Swift VI: Independence, a particular professional blindspot
The Review notes the work done by Cartwright King and Brian Altman QC on disclosure in the period 2013-2015. Between them they were the apparent architects of a review of PO prosecutions prompted by Clarke’s advice on Gareth Jenkins. This review process nonetheless failed to correct the very substantial, systematic miscarriages of justice exposed in Hamilton in 2021. How Swift dealt with them is an important question. The Review had the potential to shine a light on the process and identify flaws earlier than 2021. Indeed it spots one lacuna: the failure of the review to consider the allegations of bullying SPMs into guilty pleas, discussed in the next post.
Perhaps surprisingly, the Review did not note a potential conflict of interest in Cartwright King reviewing prosecutions, some of which it had previously prosecuted (para. 96). Had this been properly addressed, and it should have been, it would have raised a flag over all the Review work done. It is an obvious problem: they have marked their own (and others’) homework. Being able to independently advise on work previusly done, even if the task is approached good faith, is going to be difficult in such circumstances and they should not have been asked to do it (not should they have agreed to do it). This point is nowhere averted to or discussed in the Swift Review. Against this background we also note that, although not criminal experts Swift declared contentment that the PO had acted reasonably in handling disclosure in past criminal proceedings by reviewing some of that work. As with other positive findings, this has the potential to be decontextualised and misused, especially given the value of making the statement is to be doubted given their own expertise, particularly as it is unqualified in the paragraph where they state it. A more pithy way of stating the problem would be, we see non-experts reviewing the work of experts reviewing themselves. It is an important flaw.
The Review also suggests Altman advise on the problems they raise in the Review. It shows they lacked professional experience in the legal field most germane to their investigation for the Chairman. It also suggests a willingness to hand back those same issues to someone who has had a substantial role in them over previous years, given he has advised at least four times. As with Cartwright King, this too gives rise to problems of independence and conflict of interest which should have been considered and addressed.
Given the Swift Review’s failure to spot how Cartwright King’s role is problematic, one should not be surprised that they made the same mistake with Brian Altman. The Swift Review would have felt rather squeamish about suggesting an esteemed QC had too much prior involvement in the case to be truly independent. It is perhaps a little more surprising given the report notes Altman has already taken a particular line on the seriousness of theft charges relative to false accounting charges; this should have alerted the Review team to a potentially overly robust approach by Altman to defending prosecutions that had already taken place.
The Swift Review also suggests a deeper involvement by Brian Altman QC in the 2013 to 2015 period than has been revealed hitherto. I think it is right to say that the only involvement of Mr Altman disclosed to the Court of Appeal whilst he was Counsel in the Hamilton case was the General Review. In Swift, Altman is noted as having advised four times: 02 Aug 2013 (interim advice), 15 Oct 2013 (the General Review), 31 October 2013 and 8 March 2015. Interestingly also, Altman is said to have considered Cartwright King’s actual decisions in a sample of cases” (para. 96). This is contrary to what the Court of Appeal was told in Hamilton.
“To ensure that the post-conviction review being conducted by Cartwright King was appropriate, the Respondent instructed Brian Altman QC, among other things, to conduct a review of the process (although not the individual decisions in reviewed cases). The resultant document entitled ‘General Review’ by Brian Altman QC dated 15 October 2013 extensively referred, among other matters, to the Clarke Advice and its contents and conclusions;” (para. 14.2) [my emphasis]
Post Office’s defence in Hamilton concentrated on seeking to contain the fallout from inappropriate prosecution practices on which, we can now see, he appears to have extensively advised on.
This underlines questions as to whether he was sufficiently independent to advise and represent in the Hamilton appeals. It adds weight to concerns about the extent to which Altman’s prior involvement in the Post Office case was understood and candidly disclosed before the Court of Appeal in the Hamilton case. It also raises a question as to whether what was said about Altman’s prior involvement to the Court of Appeal was accurate and appropriate, although it is possible Swift got the description of what Altman did wrong.
We have little indication of how or what Altman advised during the process. The way the Review rehearses some arguments against their view that bullying SMPs into pleas on the basis of problematic theft charges requires investigation suggests to me that they may have faced some resistance on this recommendation. Some of that resistance seems to have been based on legal advice from Brian Altman QC (before the review itself, in March 2015) when he says, we are told, it is not helpful to say theft and false accounting charges are of different seriousness. In this way, the Review seems to suggest Altman may have already advised (in 2015) on the pressure to plead concern. It is not clear why he was asked to advise or by whom, although the date suggests it comes shortly after Paula Vennells’ appearance before the Select Committee where she denied having any evidence of miscarriages of justice.
Altman’s advice on this point seems rather questionable for the reasons given by the Review team in para. 1.6. A theft charge in the context of these cases was, and was likely to be perceived as, more serious (as I think any criminal practitioner would have said, particularly in the context of these cases). There are three possibilities here: I am wrong about that; Altman may have been mistaken/his advice taken out of context; or his judgment here may have been influenced by a desire to protect the prosecutions and Post Office’s reputation rather than advise independently and fairly (which in advising on a prosecution he is obliged to do).
Swift’s response is to say inappropriate pressure to plead needs to be reviewed, but only after advice on whether, “the bringing of a charge without sufficient evidence to produce a realistic prospect of conviction could be said… to cast doubt on the safety of the conviction.” The Review suggests Altman might advise (para 108) and supervise any subsequent review of those convictions (para 109). The wisdom of the suggestion raises the point about conflicts of interest and independence that we began by addressing in the post. It also suggests that Altman may, if Swift’s recommendation was followed, have advised subsequently on these points, taking the number of advices beyond those noted in Swift.
Whether Altman was sufficiently independent to advise and represent in the Hamilton appeals and whether what was said about Altman’s prior involvement to the Court of Appeal was accurate and appropriate is not the responsibility of Swift, it came after the review of course. What is of concern as regards Swift is that it failed to recognise the ways in which two key legal players had weakened independence by their involvement in the case. Had they dealt with it, miscarriages of justice might have been dealt with sooner and Hamilton handled differently. Given the extent of the controversy at the time this failure was a significant one, but it is not one I would necessarily have expected all lawyers to spot. We have seen in other cases how clients rely on trusted relationships when what they need is independence and the important contribution that makes to forensic judgement. The controversy that engulfed RICs is a case in point. Conflicts of interest are a particular professional blind spot.
In the next post we turn to the broader question of the Swift Review. Was it used to mislead Parliament?
 The limitations of their expertise are mentioned in the previous paragraph. We would not want to labour the point, but such a critical, positive statement needs the qualification resting alongside it.
 Inappropriate pressure to plead and the failure to disclosure remote access in particular.
 Richard Moorhead, ‘The Levitt Report: Independence Frayed’ (Lawyer Watch, 11 September 2021) <https://lawyerwatch.wordpress.com/2021/09/11/the-levitt-report-independence-frayed/> accessed 21 October 2021.
 Moorhead, Nokes and Helm (n 4).
 Altman et al (n 19) para. 14.2.