Where were the lawyers? 23 questions...
A quick list of the main questions for lawyers before the PO Inquiry
Given the intense interest in the Post Office scandal being generated by ITV’s moving drama on Mr. Bates vs Post Office it is worth setting out a simple, general summary of the extent to which the story involves lawyers. If you ask me, where were the lawyers, I am afraid I have to say, everywhere: across all levels and almost all episodes of this 20+ year story.
We can debate when the lawyers first became involved in material ways in the Post Office Scandal. They were involved in the initial negotiations (in and around 2000) around the failing implementation of the Horizon roll-out for instance and set up contracts with Fujitsu which it transpires helped, accidentally I assume, incentivise misinformation and blame-shifting between Fujitsu and the Post Office when things went wrong.
The contracts also failed to properly deal with the production of evidence for criminal and civil trials in ways which seem to have impacted the proper investigation and prosecution of Horizon-related offences. One reason PO did such a bad job of investigation was to work round the way Fujitsu charged for evidence.
Those broader points aside, I would say the main questions about the role of lawyers in the Post Office Scandal are as follows:
Who set up and advised on the “unfair” contracts that facilitated aggressive, bad faith conduct towards SPMs? Have those contracts been redrafted to remove the problems identified by Mr Justice Fraser in the Bates case?
As lawyers helped threaten, sue on, and terminate those contracts “oppressively” including bankrupting Lee Castleton through litigation costs, who was responsible for the aggressive strategy on Castleton’s case? Was the strategy of making an example of him to discourage others challenging Horizon professionally improper?
Who was responsible for the disclosure failures in that case? Were the disclosure failures misjudgements or negligence or professional misconduct?
Was unfair advantage taken of Mr Castleton (and others like him) as a litigant in person by the solicitors involved against him?
Who is to be held accountable for failures in the policy, training, and actual conduct of investigations and prosecutions. Those were conducted, overseen, and/or reviewed by lawyers working for Post Office and lawyers instructed in private practice to conduct cases in the criminal courts.
Were decisions to charge SPMs with (in particular) theft without (and sometimes in the face of) evidence, misjudgements or were they negligent or improper?
Was overcharging similarly deliberate, reckless or merely incompetent and was it done without the necessary independence and for, or influenced by, improper motives.
Were failures to disclose or investigate all reasonable lines of inquiry and relevant evidence incompetence, misjudgement, recklessness or deliberate failures to meet the legal obligations as prosecutors?
Were inappropriate plea deals that made pleas conditional on the recovery of alleged Horizon shortfalls and to protect the reputation (preventing sub- postmasters raising Horizon in mitigation for instance) professional misconduct or worse?
Was the review of Post Office prosecutions conducted by a firm already instructed by the Post Office (Cartwright King) properly independent, and professionally and appropriately conducted? Who was responsible for the failures to disclose evidence that the review considered and which the Court of Appeal has now said should have been disclosed ?
How did the general review of that Cartwright King review conducted by Brian Altman KC arrive at a view that prosecution decisions were fundamentally sound on (a) the evidence before him and (b) in the light of the evidence revealed by the Inquiry as to the dire state of prosecution practice within the Post Office?
Was Mr Altman representing the Post Office in the Court of Appeal suitably independent and without conflict-of-interest given his extensive involvement in advisory work between 2013 onwards?
Were the representations he himself made to the Court of Appeal sufficiently and properly accurate and candid? Was the conduct of those appeals appropriate (was disclosure prior to the decision to hear Ground 2 appropriate for instance?)
How appropriately were the independent reviews by Mr Altman and Mr Swift KC (as he then was) supported, conducted and reported on? How was it that Mr Swift’s review was reported in a misleading way to Parliament?
How did Paula Vennells come to report to Parliament in 2015 that there was no evidence of unsafe convictions given the substantial evidence of such that existed prior to 2015? Was her reliance on legal advice in this and other respects appropriate and if so, what does that tell us about the legal advice?
What role did in-house lawyers, and others, play in the handling of the Second Sight investigation and its eventual termination? Why was access to prosecution files for Second Sight terminated on, it is alleged, legal advice and, what was that advice? Was that advice appropriate and given for proper reasons?
Why did Susan Crichton, PO General Counsel, suddenly (it seems) leave the Post Office in 2013? What were the Board told about this by Crichton and others? How did it relate to Simon Clarke’s advices about unreliable evidence and the alleged shredding of documents by Security personnel involved in the review of disclosure?
Was the complaints and mediation scheme created around that time or shortly afterwards bona fide or created to suppress rather than investigate evidence of wrongdoing? On the basis of what advice and implemented by who?
Who is responsible and accountable for running the Bates litigation on, as Mr Justice Fraser found, a scorched earth (my words) and flat earth (his words) basis? Is it Womble Bond Dickinson, the leading Counsel, and/or the Post Office? The law and professional conduct rules suggest lawyers must accept significant responsibility for strategy. How much?
In particular, who was responsible for the disproportionate tactics, misleading pleadings, misleading and mismanaged evidence, excessive redaction, aggressive and improper resistance of disclosure, and (it now seems) failures to disclose material evidence being revealed in the Inquiry?
Was the advice given by Lords Neuberger and Grabiner KC to the Post Office and their board to attempt the recusal of a High Court judge mid-trial appropriate and correct? Was Lord Grabiner’s advice overly forceful or within proper bounds?
Was Lord Neuburger’s involvement in advising on active litigation, and in particular the recusal of a High Court judge for bias, given his prior role as President of the Supreme Court, appropriate? Until recently, by convention, judges did not advise on litigation post retirement, and many judges (but not Lord Neuberger) claim this convention still remains. Both Fraser J and Coulson LJ in the Court of Appeal criticised the references to an anonymous ‘senior figure’ in Lord Grabiner’s application to recuse as an attempt to threaten the judge.
More generally, to what extent has legal work assisted with the management and suppression of evidence around problems with Horizon system over the years? In particular to what extent have threats to sue journalists for libel and the deployment of NDAs for former employees, contractors with the Post Office, and sub- postmasters inhibited the truth coming out sooner? And to what extent has legal advice inhibited the proper, independent investigation of Horizon problems and led to questionable reports (such as the Ismay report)?
There are questions for the courts and for defence lawyers too. The criminal justice system, its resourcing, culture, and practices need a very, very cold hard look. The above list concentrates only on lawyers on the PO side of the equation.
Many of these questions fall, full square, to be asked of the lawyers. Some have begun to be asked by the Inquiry. In general, with some exceptions, the answers have not been edifying (see Thoughts on the Post Office Scandal for more details). Some are questions of mixed responsibility: managers and lawyers might both come under the spotlight. Most of these questions are coming to the Inquiry soon.
There is one final question. No 23: If the enquiry finds behaviour towards the more serious end of the misjudgement-impropriety spectrum could professional misconduct (it is pretty clear on the evidence so fat that has been some) also amount to the criminal offence of perverting the course of justice? The extent to which there are good answers or merely embarrassing answers to the above will be contrasted with the answers that lead to striking offs and even, possibly, jail.