Swift X: An overview, the Legality Illusion

A quick summary

This stream of posts is a critique that has the benefit of hindsight. Independent reviews are difficult, and for that reason I would not want to overly emphasise criticisms of the authors. There are problems with their analysis and presentation of the findings that are important. And there are ways in which the evidence base they had was inadequate, for which responsibility largely, but perhaps not totally, lie elsewhere. The approach taken and the problems exposed can be seen as exemplars of difficulties that need to be managed if independent reviews are to independently and fairly arrive at conclusions of substantive value. As we can see the capacity for independent reviews to be misrepresented, and for senior lawyers’ judgements to be used to sprinkle the holy water of justice on unjust and improper behaviour can lead to serious problems. They help create a legality illusion.

There are links between weaknesses in the Swift report, and especially its handling by the Post Office, that are associated with the misleading of Parliament, and aggressive and misleading litigation strategy so roundly criticised in Bates. Moreover errors or misjudgements in Swift, whether caused by faulty briefing or problems with the Review itself, meant an opportunity to surface and deal with life-shattering miscarriages of justice years sooner rather than later was lost. Swift is not the cause of the original problem, but they are part of the causal chain; they had an opportunity to break the chain. It is possible in fact that the Review served to strengthen that chain.

The failings I would identify can be summarised as follows:

1.      The reviewing lawyers did not have the most appropriate legal expertise, as public rather than criminal lawyers. They also may have lacked the necessary forensic expertise to deal with computing evidence. Expertise is important; it impacts the ability to exercise independent judgement and the ability to challenge and refute the propositions provided by those instructing you.

2.      There are subtle psychological biases which play on all lawyers (indeed all humans) which need careful thought and management. This should be borne in mind when considering the type of lawyer to be instructed to conduct a review and how they go about their task. Having a safe pair of hands who understands the needs of business has value but also gives rise to potential difficulties.

3.      The evidence base had structural flaws not corrected by the Review (e.g. minimising the extent and weight given to SPM evidence, not following up on Roll’s evidence).

4.      The handling of the evidence base by Post Office is particularly important. A number of crucial documents are not mentioned (the Detica Report and the Clarke advices) and may not have been before the Review and the reasons given for not speaking to Sir Anthony Hooper are unconvincing. The reasons for this need investigation.

5.      The framing of investigations is important. Those frames can be legal ones; here agency arguments tilted the analysis in a direction favourable to the Post Office, as did the association of SPM perspectives with widespread false accounting (and so dishonesty). Frames can also be conceptual ones: the identification of the software as the ‘system’ also operated to tilt the analysis towards a position helpful to the Post Office.

6.      Positive news has to be given carefully if it is to be given at all. One might question the wisdom of specualting that probing into remote access was a wild goose chase for instance. And identifying the software as ‘the system’ and then portraying the system as fundamentally sound poses obvious risks of misrepresentation, even allowing for hindsight bias on our part. It emphasises a positive finding whilst other, and associated negative findings (that undermine it) are more muffled.

7.      The implications of negative findings are not always explored in important ways.  A particularly interesting example is the noted omissions in Gareth Jenkins’ evidence which suggests Swift identified material omissions in evidence he may have given in criminal proceedings. The significance of this error can only be fully understood if we know whether Swift had sight of the substance of Clarke’s advice.

8.      The Review essentially analyses some of the review work previously undertaken by Post Office instructed lawyers, who themselves lacked the necessary independence to conduct the work. It is perhaps unsurprising that this is unsatisfactory. Suggesting that questions essential to the outcome of the review be referred back to these lawyers compounds the error.

9.      In the absence of a summary of its own, the Post Office and/or its Chairman appears to have editorialised the report in ways which present a misleading picture of it. The reasons and mechanisms for that bear investigation.

10.  The Review appears to show the involvement of leading counsel for the Post Office in Hamilton in the case during 2013-2015 was more extensive than it was understood to be. The Review’s description of what was done by that Counsel in 2013-2015 also differs materially from how it was described to the Court of Appeal. We do not yet know if that same Counsel had further involvement in response to the Swift review. During the Hamilton case the Post office failed to explain why disclosures had not occurred in the cases before the Court of Appeal. The extent of their own Counsel’s involvement in that failure post-conviction is important not least because the Post Office was so keen to avoid criticism for its handling of cases as an affront to justice.

11.  The Chairman of the Post Office, Tim Parker, led the Post Office whilst it litigated a case on a misleading basis (Bates). The General Counsel, at the time, Jane Macleod, also signed the statement of truth verifying the defence. A central part of that case was a denial that secret remote access was possible, a claim only withdrawn late in the case. The Swift report had informed Parker that secret remote access was possible in 2016 and that Post Office already knew about it. Parker’s role in the stweardship of the litigation is thus extremeley important. As was Macloed’s. Parker has for a significant period been chairman of HMCTS.

12.  Extraordinarily Parker was reportedly advised by General Counsel for the Post Office at the time, Jane Macloed, that he should not disclose the Swift Report to the Board as it risked vitiating professional privilege. This advice was probably wrong and if it was not wrong it placed Macloed into a potential conflict situation. The veracity of the report needs exploring, but I believe it not uncommon for legal professional privilege arguments to be used to avoid disclosing information which is inconvenient rather than for reasons of law.

13.  Parliament appears to have been misled about the report by the then relevant Minister, Paul Scully. There is no suggestion he did so knowingly but the problem would likely have been apparent to the senior civil servants in BEIS and UKGI at or shortly after the time he put in evidence to the Select Committee, but we have not seen any public correction.

14.  Human frailties in decision-making can sometimes lead to erroneous judgements of the kind we see in the report. The ways in which the evidence before Swift was limited and the persistence of an untruth about remote access in the Bates defence suggest this may be a tale of more than frailty and might be a crime but I hope the analysis is of use to those who need to consider how better to manage independent reviews in the future. Client loyalty runs deep and needs to be carefully managed if independent reviews are to be as objective and thorough as possible.