What lies underneath?

Some words from you and a final comment from me on the Altman evidence and what it might show us.

Of all my posts, I think this series has prompted the most responses. They have come from lawyer and non-lawyer readers alike. I am very grateful indeed for that. Thank you.

One common type of response is along these lines:

It must be relatively easy, if you are an experienced and brilliant-minded lawyer, to engage your equally brilliant-minded peers in intellectual challenges over the exact number of angels dancing on heads of pins. That is what Altman is doing here (to my not-so-brilliant mind).

He may well be right to appear so confident in the outcome of his day spent trading legal niceties with barrister colleagues at the Inquiry. But I don't think the ordinary punter looking on will have been fooled by his assessment of himself for more than a few minutes.

This man could and patently should have blown the whole thing wide open. He was uniquely placed to do it. But of course we don't get to judge. My bet is that the barristers mixed up in this scandal will all get a free pass from the Inquiry. The in-house and contracted solicitors might not fare so well....

When I first watched Mr Altman, I thought he had done well and that the kind of judgement at the end might be true. Having thought about what the evidence actually shows, I no longer think that.

The more I think about the substance of the evidence I think what it suggests is this:

1. He knows and accepts he should have disclosed Jenkins’ knowledge of the bugs and his own assessment of him as tainted.

2. He says he does not know why he did not disclose the bugs and his assessment of Jenkins and does not speculate on it. He thinks he simply did not think about it.

3. He knows and accepts that he should have investigated or advised Post Office/Cartwright King to investigate why Jenkins failed to disclose two bugs and whether more lay undisclosed.

4. He is seen to and must have thought about whether it was appropriate for him to talk to Jenkins to investigate what had happened. This is crucial.

5. He clearly perceived a risk in not doing this at the time and seems to have decided to run that risk.

6. We do not get a clear view on what he apprehended as the nature of the risk.

7. He knew that his advice would be used to assure the Board and others of the quality of Cartwright King’s work in general and the appropriateness of Post Office continuing to prosecute.

8. In offering this reassurance his advice could be criticised for being misleadingly helpful to the Post Office and sometimes extravagant in the supportiveness of its language. Some of it, at least, is based on a flimsy evidence base which on occasion is close to non existent.

9. His advice also sometimes minimised problems (the shredding problem in particular).

Now the lawyers reading this will probably spot the significance of point 5. Let me come to that in a moment via this. The interesting general question is why would this set of problems manifest? Why would such a skilled and sophisticated operator, with a hard-earned reputation as a leader in his field, drift that way?

I want to make two general points before returning to point 5. I emphasise very strongly from here onwards, I am speculating. I am neither seeking to judge nor excuse Mr Altman. I am looking at some possibilities.

The first point is the mutual irresponsibility problem. Altman is instructed to provide some assurance of Cartwright King’s work. Assurance is a slippery word. Simon Clarke, in his evidence, talks about supervision, but whatever word is used the factual and procedural basis for that assurance or supervision is weak. I advise, and the client relies, the client instructs so that I advise based on (well, let's not call them lies, let's call them) partial, limited facts.

Most lawyers in these situations are aware of the risks and an interesting question is how they deal with them. Caveats is one common if somewhat lazy answer.

This is not always enough. Due diligence and caution in how one advises in such circumstances is needed.

Turning a blind eye to an obvious problem, for instance, can amount to dishonesty. It is possible, for instance, to be dishonest or to commit serious professional misconduct, such as misleading the court, recklessly.

The second concerns the role of the prosecutor. I have already said that it is hard to see how fairness was influencing Mr Altman’s decisions.

What his work looks like is a lawyer advising a corporate client to take every point available to it. The client is given the benefit of the doubt in applying any legal test or considering any factual uncertainty. Perhaps any is too harsh; let us say many.

In fairness I should also point out this comes from my ivory armchair and blessed with hindsight.

I should also point out some have suggested a less than fair, tactical, let them come looking for it, approach is what Treasury Counsel generally (perhaps they mean sometimes) have a history of engaging in. How true that is, if at all, I cannot be sure, but we should bear the possibility in mind.

The point then would be that Altman’s approach is redolent of a certain kind of tough prosecutor without fairness. One thing we know about Mr Altman is his chambers liked to sell his services on this basis: a testimonial on his website, which once had a more prominent position, says, “Brian is unstoppable. Like a steam-roller, once he’s set his course, he won’t deviate from his path and will crush anything that gets in the way.”

Now if I had to guess at a rationalisation of Altman’s admitted mistake that does not involve him simply covering his tracks, and again let me emphasise this is a guess, I would suggest something like this.

When Altman is instructed, the issue of talking to Jenkins is raised. In a coherent or or incoherent way he is aware of the risks in both directions: digging into it might help ameliorate the problem, or it might make things worse for his client. If someone investigates, the disclosure problems might either evaporate or be mitigated or they become much worse.

My guess is his view of this may have been influenced by his attitude to what the lawyers call the Nunn question: what is the obligation of a prosecutor post-conviction? He seems to see that in quite black and white terms, which help the tough prosecutor defend previous convictions from scrutiny. That view would be along the lines of…. a prosecutor is only obliged to disclose information that challenges the safety of a conviction, they are not required to investigate problems raised post-conviction. The Steam-Roller has his strategic direction.

I think it is questionable, whether Nunn actually says that. I read the case as silent on not deciding what a prosecutor needs to do to investigate further when fresh disclosable information about safety comes to light, but I am not expert on this, and so I may be wrong. We know in any event, from Sam Stein’s cross-examination, that Mr Altman accepts had he been working with the CPS he would have done more and got them to look further into the problem.

Instead, as a tough prosecutor not inclined to do an investigation unless it's absolutely required, consideration of why Mr Jenkins failed to disclose is boxed-off by Mr Altman by excising it from his terms of reference as Jason Beer shows us. It is excluded from his review and there is no sign he asked Cartwright King or Post Office to look at it.

It seems fair to suggest too that the decisions about risk may have been influenced by the mood music around him. An organisation that was confident about Horizon and its handling of prosecutions would likely have said, Gareth Jenkins must have made a mistake, or have a reason for not disclosing those bugs previously, what is it?

What we see instead is illuminating. Cartwright King’s first response to hearing of the problem is to speak to Jenkins on a pretext and surreptitiously record the call. And there is evidence that in the background Bond Dickinson was looking into what had happened as regards the instruction of Gareth Jenkins and discovering problems. This seems to involve Mr Smith of Cartwright King.

It follows Mr Altman’s excision of the why question takes place against some troubling events. How sighted of them he was we do not know. But we do know one thing. At the time he perceived a risk in not getting Jenkins investigated, and he decided to run that risk.

It follows from this that it might therefore properly be said he was reckless to it. Whether the Williams’ Inquiry says so, we will have to wait and see. Only someone like Sir Wyn, with his experience of criminal practice, is in a position to judge how significant such recklessness would have been in this context, but the frequency of the errors being brought up, their broader significance, and Altman’s saying that he was flabbergasted by it when he realised it is a clue.

A more sceptical conjecture would be he was more likely flabbergasted about his mistake when he realised he was going to have to explain his failure and could not. That was not his evidence though.

This takes me to another comment from one of you. This one was made by Lee Castleton. Many of you will know Lee as a former SPM who was bankrupted by Post Office when he tried to dispute a shortfall debt in 2006. It captures the point that many have made to me and is an echo of the comment I started this post with.

I am by no means qualified, but over the years I have heard some very well educated and intelligent people musing over the very tiniest detail in a written word. Missing it or being mistaken seems to not fit for me.

Whether Lee is right about that, I should also properly leave to Sir Wyn Williams, but it is absolutely the right question to ask of Mr Altman’s evidence and my analysis of it. Neither of us may have gone far enough.