The invisible worm: how evidence is constructed
Oh Rose thou art sick and other stories... A bit of a sketch of a recent hearing and then one serious point about evidence construction involving lawyers
Tortured (actually he was alright as ancient poets go, no?) by William Blake as a youngster, this famous poem came to mind as I read through the evidence of Helen Rose overnight. Mrs Rose has been much mocked on twitter for her amnesia when faced with questions but in fact Jason Beer KC, counsel to the Inquiry, established rather a lot nonetheless. I want to emphasise two themes emerging the evidence we have been seeing in the Inquiry so far.
One is the tendency to promote from within PO people without apparent qualifications or training. Rose was a spectacular example. She transferred from counter work to audit, to investigation, to fraud analytics and training; to some kind of (my description, so it may be unfair) ad hoc data expert; and also (lawyers forgive the invitation to begin tearing your hair out please)disclosure officer (i.e. responsible for ensuring proper disclosure of documents in prosecutions and the like).
Beer established that she had no professional qualifications; or auditor qualifications; or formal training on how Horizon worked even when an investigator; or training on role of Fujitsu or in auditing. There seemed to be an absence of training on making statements or evidence or training in disclosure. She became a fraud analytics’ person and did some crucial investigatory work; this seemed to involve cutting and pasting what she could find in files or what helpful souls, Gareth Jenkins in particular, told her. Examples of her investigating something for herself, with actual facts, when doing these investigations were there none.
Audits were not prepared for by considering data, call logs, or other operational records in fact if her memory served (don’t say it) they were not prepared for at at all. If I might slip into the persona of a BBC type impersonating a northerner for a moment, the process seems to be to pop in for a Brew say Eh up chuck I’ve done some counting and there’s money missing; that’s a nice top you’ve got on, you didn’t get that from Primark, eh though? And then someone else (it always seems to be someone else in these stories) decides to suspend the poor soul who expected the auditor to help. It’s not the smell of booze* your faulty memory is throwing up Mrs Rose, it is incredulity.
The more relevant point to my interests to be made from Helen Rose’s testimony is the insight into how evidence is made. She did her job by taking information others gave her, repackaging it, and relying on it as true. Is the same true of lawyers? It should not be, lawyers absolutely should not simply act on instructions, and have critical responsibilities not to mislead, but the story so far in the Inquiry is they often act like Helen Rose. They repackage worms.
A witness tells their story. Obvious problems aside, it is accepted and repackaged. The faults in their memory are finessed way. The useful bits are emphasised. Questions are asked to encourage the useful bits to be developed. The unhelpful bits are de-empashsied or disappeared. A moral backstory helps encourage the acceptance that the whole proess is somehow justified (the witness thinks the opponent is shifty, or fiddling, or a drunk). And the lawyer wants to win of course. Indeed, his reputation and sometimes his fee (not to mention his LinkedIn page) depends on it
It’s a familiar story (Hillsborough of course or any number of cases involving Russians - not the sole beneficiaries but they do pay the best - in the High Court). Evidence is just being polished; it’s advocacy or zealous representation (see yesterday’s post). No one can explain why crucial omissions or mistakes are not picked up (here witness statements containing patently incorrect information) and why the statement when looked at properly is shown to be misleading. Both the witness and the lawyer will seek to deny that that was their intention. We were just shaping the best story; we did not mean it to mislead anyone. It’s just dumb luck that we did.
*The hearing can be viewed here if you want to understand the reference https://www.postofficehorizoninquiry.org.uk/hearings/phase-4-19-september-2023
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