The Lacuna

Beyond the blind spot, where does peering into Mr Altman's shallow dive and other advices take us?

Part of the point of Jason Beer’s public-private, advice-investigation questions about Mr Altman’s instructions was to capture both what was being done and how it was being represented. Less deep than investigation, private and privileged but used semi-publicly, done to the ethical standards of a fair prosecutor but as if advising a commercial operator is the essence of the answers The possibility for confusion and other problems lurked.

We have seen in the previous post how Mr Altman admits that his work had, at its heart, a central flaw that flabbergasted its author. A mistake which he partly associates with his not being an independent investigator.

Putting to one side whether one should take Altman’s encouragement to blame the CCRC, it meant that Gareth Jenkins’ role in non-disclosure of bugs and the assessment of his credibility was not revealed until 2019 and 2020 respectively.

I have suggested a range of other failures, some of which Mr Altman appears to accept. They might be said to flow from the central flaw though.

We get a further sense of the other judgements Mr Altman made from subsequent work he did for the Post Office. There is, for instance, legal advice for the Post Office’s on its investigation and prosecution roles in December of 2013. He was asked to advise on whether the Post Office could or should continue prosecuting.

He makes then what now looks, with hindsight, like the boldest of claims.

I have seen no evidence to suggest that the Post Office exercises its investigations and prosecution function in anything other than a well-organised, structured and efficient manner, through an expert and dedicated attempt of in-house investigators and lawyers, supported by Cartwright King and their in-house counsel, as well as external counsel and agents where required."

In passing note the first five words.

The most interesting question is how bold was that claim then?

He is asked about his evidence base for the claims. It is described as “what Post Office had sent me” and his meetings with Cartwright King, Rodric Williams, Jarnail Singh (who he appeared keen to interject he had met, “once, maybe twice”) and having read two prosecution files as well as what he describes as the insight he gained through his work on the general review.

I imagine many were dying to hear what he made of Mr Singh, but he was not asked.

Beer decided to focus on the function performed by investigators. Here is the list of things Mr Altman could not remember examining, or did not examine, before submitting his view:

• material on training

• the knowledge and experience of Post Office investigators (beyond the fact some were former police officers)

• the extent to which investigators actively investigated all reasonable lines of enquiry

• how decisions to prosecute (or not) were made

• how much consideration was given to analysis of evidential case strength

• the tests that decision maker applied when deciding to prosecute.

When asked if he examined supervision he said he understood Cartwright King were involved and he’d met Simon Clark and Harry Bowyer and “remember being impressed by them”. Chaps regulating chaps, with a hat tip to Professor Alan Paterson’s Hamlyn lectures, is the phrase that came to my mind here.

When asked if he discovered who the decision-maker was on prosecution decisions, he could only say it was somebody who was “not legal”. He did not examine the training or experience of them beyond recommending that the person should be legal.

Here’s the pay-off. There is a nice example of how Altman resists, tries an explanation which he might be sensing is not working with its audience, and then concedes a point he knows is lost:

Q. Given all of those things, how were you able to say that the Post Office exercises its investigatory function in a well-organised, structured and efficient manner?

 A. I think I was talking more about the hierarchical structure and what had been presented to me in the way that Post Office, through those various policies, were structured. I don't think I was deep diving nor do I think I was expected to deep dive all of the factors that you've just mentioned. If I had, this would have been a completely different exercise.

Q. Do you think there was a danger in the conclusion that you wrote there being misunderstood and, therefore, misapplied and being used as a weapon by the Post Office in fending off criticisms of it?

A. On the basis of what I've just said, yes, I can see it would be.

There’s more because the point of the advice is to consider whether the Post Office should continue prosecuting. Beer quotes from the advice:

105. ….It may be thought that [the Post Office's] role is anachronistic, and highly problematic ..

106. The recent events have to be seen in the proper context. The serial non-disclosure of relevant material occurred in circumstances in which [the Post Office] asserts that it and its advisers were wholly unaware that there might be disclosable material or information and so, whatever the reason, were not placed in a position whereby they knew of its existence and could deal with it appropriately."

A. Yeah.

Q. You tell us in your witness statement that later events proved your information and understanding, that you set out there, to be wholly incorrect?

Altman reaches for another word: catastrophic. He’s hardly going to say No Shit Sherlock in front of the Inquiry is he?

As bad as the Jenkins mistake is, I think this point in the evidence may be almost as low a point for him. It shows how gossamer thin his reassurance to the Post Office was and, if his evidence is accepted, how poor his understanding of what was going on in the Post Office was.

Another episode which is given a working over is Altman’s advice on whether false accounting and theft charges are “equal”.

The advice flows from a letter sent by the Post Office [written, it seems, by Cartwright King] which seeks to rebut Second Sight’s claim that PO are bullying SPMs into guilt pleas on the “lesser” charge of false accounting. That rebuttal is offered partly on the basis that false accounting and theft charges are “equal”.

If I can paraphrase his advice it says, whilst there are lots of things wrong with the letter, in a limited sense it is defensible. At the Inquiry, he defends this approach as answering the narrow question that he was asked to advise on, whether the letter was defensible. He denies he was straining to defend Cartwright King and rightly points to some ways in which his advice does not help them.

However, his point about the narrow instructions appears to be demonstrably bad. Beer quotes from his letter of instruction, which includes a request to advise on “Whether in your view it is fair to characterise these offences as being equal (against whatever yardstick you think is most appropriate ...)?"

A.    Yeah, well I'm afraid, if, Mr Beer, with respect, you're saying that that was some delphic suggestion that I should be looking at the points you're making, then it passed me by. I was looking at the defensibility or otherwise of that letter –

It really does not look Delphic to me, nor given the context and what Sir Anthony Hooper had said about it at the time, do I think the fairness question would have been missed at the time. The central point of the advice is really that Cartwright King makes a legally accurate claim when, in a real-world context, the point is misleading or irrelevant. The absence of direct consideration of fairness in his advice passively assists rather than hinders the approach. He chose to focus on defensibility, however consciously or unconsciously.

In February 2014, Mr Altman was seen to advise about the case of Brewer, where he was asked if an unevidenced criticism by Second Sight of communication line problems causing losses is disclosable. He gives them bad news: it is.

He also suggests trying to get Second Sight to concede it as a problem in only this one case to limit the need for disclosure, or think about instructing an expert to undermine their opinion. Andy Parsons of Bond Dickinson interprets that advice as meaning they can get Fujitsu to give a view to use to try and rebut Second Sight in mediation and prevent or mitigate the need for disclosure.

Altman rejects the idea that he’s coming up with ways to enable Post Office not to disclose information.

Whether one can criticise his views in these advice or not, it is important to note how he is leaning into his clients needs rather than thinking about what is fair, or responsible in the circumstances. Let me take you to another example.

On Simon Clarke’s excoriating shredding advice, Mr Altman is taken to the way he describes the actual or potential destruction of documents in his General Review: shredding or instructions to destroy documents is not mentioned, “cultural” and “early teething” problems are.

It is worth remembering that earlier in his evidence Mr Altman says he thinks the General Review, of all his work, was the advice most likely to be shown to the Board.

He is asked to explain why he refers to the shredding issue simply as “teething and cultural” problems. In essence, he says this was because he had been reassured the problem had been overcome. The General Counsel had referred to cultural problems, He wasn’t being “dismissive of it”. And he thinks he may have been told that nothing had been destroyed or shredded. That’s why, he says, he didn’t deal with it at any length. “Maybe it’s an unfortunate choice of a word but I didn’t mean to dismiss it.”

He accepts it is more than a teething problem.

What had been undertaken to overcome these cultural problems he couldn’t remember but he assumed Mr Scott (the alleged shredder) had been given some advice about his future conduct. Time may be running short by this stage of the hearing because somewhat surprisingly there is only one question on whether he considered the matter needed disclosing. He did not. It is not probed further.

Whilst thinking about the appropriateness of each of these advices there appears also to be a pattern: the sometimes too casual way the advice gives the client what it wants, at least a client intent on pulling the balloon that was going up in 2013 back down.

If I can summarise his work somewhat glibly and unkindly: you are well-organised and expert and can carry on prosecuting; the (frankly stupid letter your dolt solicitors wrote) might be defensible; you may have to disclose Second Sight’s opinions but try these things to neutralise them first; and of course I can pick up on your GCs suggestion that what Simon Clarke described in his shredding advice as a potential perversion of the course of justice was merely an early cultural problem.

An interesting question is how a minister of justice, one of independence and integrity, grapples with the idea of fairness at these moments? Where is it? Even when asked to consider fairness, it seemed absent. I am not suggesting, although others might, that this is a sign of bad faith but I am asking, might it, in the accumulation of examples, be a sign of how a lawyer can sway and lean in the client’s wind? Might it be regarded by some as cynical in approach? Might it even, and here one should wait to hear all the evidence before the inquiry, lack independence and integrity?