This is Normal IV: divisions of (ir)responsibility?

A final post on Andy Parsons' evidence to the Inquiry

One of the many interesting conversations I have had with practitioners about the Post Office Scandal was a suggestion that large projects take on a life of their own beyond the control of those working on them. They are big, sprawl over time, involve many hands, different kinds of expertise, and so on. Judgements and assumptions are made which inform strategy and the management of evidence. They guide those projects as they evolve but the origins of these original judgements, and any complexity and nuance they may have been based on, can become lost in time. Those assumptions arise in unclear ways (tacitly, in meetings, under group-think and optimism bias).

Here examples of such assumptions might be: Horizon is robust. Remote access is not possible. Prosecutions were safe.

No one (or everyone, so no one) is responsible for creating or maintaining these.

This argument suggests that (say) a big piece of litigation is like a potentially pathological organisation, filled with chains of communication but (potentially) devoid of functioning chains of responsibility. Everyone is involved, but no one is actually making the decisions, particularly the flawed ones; or is making decisions on information flawed in ways they cannot be held responsible for.

It has both the air of being a potential explanation and a convenient excuse. Which of these it is may, naturally enough, depend on the facts.

Andy Parson’s evidence was, to a significant extent, an attempt to draw on a similar idea: the divisions of labour of his work on the mediation and the Group Litigation, meant (when things went wrong) he was a mere conduit of others advice. And he was influenced by good-faith factual assumptions that drove everyone’s misguided reasoning.

An example of the resilience of assumptions is remote access: it develops through the PO scandal from something that cannot be done, to something that cannot be done without the SPM being aware of it, to something that can be done without the SPM being aware of it but that is subject to rigorous controls, to something that may or may not be done but which is only subject to paper controls, and so on. This shifting interpretation is shaped by an underlying assumption that remote access can be discounted as a red-herring explanation for Horizon shortfalls. Remote access’s supposed irrelevance lived on through whatever evidence undermined it.

An alternative explanation should be mentioned in passing: facing up to the possibility that remote access could be both secret and uncontrolled would have undermined too many of the assumptions that underwrote their position on convictions, claims, and the general functioning of the Post Office. It may have been too appalling to contemplate.

Division of labour is particularly important to Mr Parsons’ defence for disclosure failings. He has to distance himself from failures to disclose, or what might yet be interpreted by the Inquiry as deliberate attempts to obfuscate, the Gareth Jenkins problem (that he knew about Horizon problems and gave tainted evidence in criminal cases).

Parsons’ line, understandably enough, is that this was Cartwright King’s (and Brian Altman KC’s) bit of the project. It was not his responsibility.

A difficulty with this is that there are a number of times when Mr Parsons (and sometimes his colleagues) appear to advise on matters related to the criminal work. Keen to minimise his role, Parsons seeks to claim his and his firm’s role was just as a conduit between the Post Office and its criminal lawyers.

There are some, to my eyes, slightly ridiculous attempts to say that because PO and their GC at the time, Susan Crichton (who was not even a litigator), knew they were civil litigators when they opined on matters to do with the criminal work, they were just offering a view, not advising. I would say he makes a similarly weak argument when claiming he is not advising on how to handle a PR programme where he suggests they could “start attacking the postmaster's credibility by calling out Thomas [Dr Thomas now], Misra and Hamilton as the liars and criminals they are” because he had made clear his preferred position was to sit tight and wait to see what the CCRC do.

But there are also some examples when he has a more substantial point: when is he, as a civil litigator, allowed to simply accept and pass on views from the criminal lawyers? How obvious do the problems with those views need to be before he must do more than be a mere conduit?

The most important example of the problems created in the interstices between criminal and civil solicitors is the redaction of Gareth Jenkins name from the Rose report.

This, as I discussed in this earlier post, was done on the basis that data protection law required it although at the time the evidence suggests Mr Parsons should have (and so may have) understood the significance of having Mr Jenkins name on the report.

With his name redacted, Gareth Jenkins’ personal knowledge of Horizon problems is not revealed. Crucial knowledge given his role in prosecutions. The Rose report is disclosed with his name redacted on Cartwright King’s advice (for data protection reasons). This is challenged by an SPM’s solicitor and whether it should be unredacted comes to Mr Parsons. Mr Blake contextualises the decision.

Mr Blake: I’ve noted down all those things that happened in the summer of 2013, so we’ve got: suspense account bug that was brought to your attention; concerns regarding the integrity of Horizon; you had raised concerns regarding the documenting of certain information; Castleton; Misra; other cases on hold; Second Sight Report; three bugs; you corresponded with the Criminal Cases Review Commission, however you would like to put that.

You are here, in 2014, directly involved in advising the Post Office in respect of a document that was disclosed following a criminal conviction and saying that “We don’t need to unredact the redaction to Gareth Jenkins’ name”, aren’t you?

Andrew Parsons: Following the advice of the criminal lawyers.

Mr Blake: Why in those circumstances wouldn’t you have given it a little more thought?

Andrew Parsons: I wasn’t advising on the prosecution disclosures. I’m a civil lawyer. I don’t have any experience of criminal law. When these types of issues came up, I took the lead from the criminal lawyers, particularly from Simon Clarke, who is much more senior than I was.

Mr Blake: You were asked to unredact the Helen Rose Report. Your advice to the client is “You don’t need to unredact the Helen Rose Report, those redactions were made for data protection purposes”. Why wouldn’t you have satisfied yourself that they were sufficient that they were correct that they were fair?

Andrew Parsons: I have no independent means of doing that because I’m not a criminal lawyer. So I can’t advise the client independently on whether those redactions were appropriate or not. The best I can do is go and speak to the criminal lawyer who made those redactions and seek his view.

Mr Blake: You knew the significance of the Gareth Jenkins issue; you had read Cartwright King’s advice; you knew that the disclosure was being confidentially made for the purpose of disclosure. Do you think, looking back at all of that, you really reflected enough on the job that you were doing?

Andrew Parsons: I think if I – reflecting back on it now, I think there was probably an original mistake by the criminal lawyers in redacting Gareth Jenkins’ name and not being more transparent about his involvement and why they were making the disclosures back at the beginning of 2013.

Mr Blake: Why is it all the criminal lawyers’ fault? You were here involved in matters touching on criminal law, weren’t you?

Andrew Parsons: I’ve – I hope I’ve tried to explain my involvement with the criminal touch points but, as I’ve said, I’m not a criminal lawyer, I don’t know these rules and I can’t advise on them. What I’m trying to do here is helpfully give Post Office the advice they need, acting, as I say – and I know you don’t like this phrase – but as a conduit for the information from the criminal lawyers.

Mr Blake: Should there have been a point where you said, “I’m sorry but I can’t act as a conduit any more, this is so outside my area of expertise that I really can’t assist you?”

Andrew Parsons: I didn’t feel it at this point on this particular issue, no. Having spoken to Simon Clarke he was clear to me he thought those redactions were properly made.

The question is whether Clarke is really solely to blame, this was a matter genuinely falling between two stools, or whether it was a crack between which matters were knowingly or recklessly allowed to fall. Would a reasonable practitioner, with the knowledge Mr Parsons had at the time, in particular the significance of the Gareth Jenkins issue, and the real sensitivity around the Rose report, advise that the redaction needed to be lifted or simply sustain it?

There is another example of the same problem. Melanie Corfield (in the Press Office) writes to him about “the main message to land now that the [Post Office] Investigations are completed is our view that there is nothing that undermines the safety of convictions”.

This line plainly influenced Paula Vennells’ evidence to the Select Committee and her correspondence with the Post Office Minister at the time. She reported that PO investigations and those of Second Sight had found nothing to suggest the convictions were unsafe.  

Corfield’s line, and Vennel’s tweaking of it, is plainly incorrect. There was evidence that suggested the convictions were unsafe, although one might say that Cartwright King had not said any of the convictions were unsafe; they did though advise disclosure was needed in some cases that might suggest there were doubts about safety, even for them.

Mr Parsons is asked this:

Mr Blake: Having been somebody involved in the Mediation Scheme, quite heavily in this period, is it your view that the result of that mediation taking place was sufficient for the Post Office to form a view that there’s nothing that undermines the safety of convictions?

Andrew Parsons: Every case in the scheme – sorry, the investigation reports for every case in the scheme went to Cartwright King for review and I don’t recall Cartwright King raising anything in those reports that caused them to question the safety of a conviction.

So, if this is wrong, he is saying, it is Cartwright’s King’s call not his. He did not need to speak up.

The question is whether this is a sufficient answer? Given his state of knowledge at the time did he, should he, have spotted that the statement was misleading or prone to be misleading? We do not know the Inquiry’s judgement on that, but he would not be absolved of responsibility simply because the primary source of the statement came from elsewhere. A lawyer may not mislead but also may not be complicit in the misleading of others; if the Inquiry thinks he spotted the problem or recklessly closed his mind to it, he is in difficulty. We shall have to wait and see.

Parsons evidence is also very interesting on the central Gareth Jenkins question posed for many of the lawyers, particularly Brian Altman and Simon Clarke: why was Mr Jenkins apparent failure to give accurate evidence not investigated when it was discovered in 2013?

In earlier posts I report evidence that suggests Messrs Altman and Clarke both seem to raise the prospect of investigating and then decide against it. To paraphrase those, Mr Clarke says he just started to look forward rather than back and Altman says it was a function of his role, he was not there to investigate.  Clarke denies being in anyway influenced by any possibility of a conflict of interest posed by the mishandling of Jenkins’ instructions. In essence, that possibility did not cross his mind.

There is no evidence to suggest otherwise but there is evidence that his colleague appreciated this a month or two after the problems first arose. And we can see now that Mr Parsons colleague, Mr Matthews, spotted the problem straightaway. He alerted Susan Crichton to it and seems to advise on the potential of claims being available.

“2. If [the Post Office] suffers losses directly referable to [Gareth Jenkins’] failure to comply with his obligations as an expert witness, there are 3 potential entities against whom [the Post Office] may have an action – [Gareth Jenkins, Fujitsu and Cartwright King] …

“4. Given that [Cartwright King] are potentially liable to [the Post Office] for any failure on the part of [Gareth Jenkins/Fujitsu], I do think it would be sensible to get a criminal QC to oversee the strategic advice being given [Cartwright King] – I’m not saying that [Cartwright King] have definitely done anything wrong but they may have done and are trying to blame [Gareth Jenkins/Fujitsu] so it is very important to check that their tactical approach is now overseen by someone completely unbiased.”

Standing back at this point there are a few things worth noting. One is it underlines the extraordinary decision not to investigate the Gareth Jenkins problem. It was in the Post Office’s interest to have this investigated if there was a potential claim. It also raises the intriguing prospect of whether such a claim remains or is time-barred. I would discourage too much excitement about that, my guess is it is or faces other hurdles.

The second is that this was not great advice. If there is a potential claim of this sort then Cartwright King were conflicted out and this was something better addressed directly rather than appointing a third overseer. This sort of conflict is not one that can be rectified by subsequent action by the potentially negligent firm. They would have needed to be removed from the work.

And the third is that if the appointment of Altman was partly designed to deal with this difficulty, it is regrettable to say the least that the potential problem was not investigated as part of his instructions. He advises on a mere commercial conflict when he in ought to have thought about a solicitor own client conflict of the type that actually lurked under the surface. It was not a merely a potential commercial conflict as Mr Matthews advice shows.

The result was, consciously or unconsciously, to brush the problem under the carpet. It is, of course, no consolation whatsoever to say how plainly this illustrates the importance of solicitor-own client conflicts being dealt with appropriately the moment they arise. It is a further illustration of how close to the surface the central difficulties in the Horizon cases lurked but were not brought out fully into the light. The division of responsibilities may be part of that explanation, but is that all of it?