The Past Is Not Another Country
May 5 2024
9 September 2013: there is a meeting between Brian Altman KC and the Post Office’s in-house and external lawyers. A key witness, Gareth Jenkins of Fujitsu, who gave oral evidence at Seema Misra’s 2010 trial, was tainted. Following advice from Simon Clarke, a barrister with Cartwright King, the Post Office had asked them to review its prosecutions since 2010. Its General Counsel, Susan Crichton, had agreed to this as the cut off date even though it excluded the Misra case. What should the Post Office do, however, if she came forward? As recorded by another Cartwright King lawyer, Martin Smith, nothing. The Post Office did not want to give her “a ticket to the Court of Appeal.”
It is worth noting what this amounted to:
- The Post Office and its lawyers knew its key witness was tainted.
- They knew he had given evidence at a trial leading to the conviction of a subpostmistress.
- They knew that proactive disclosure of this would potentially allow that subpostmistress to appeal.
- They knew that this risked undermining other prosecutions.
- They decided to do nothing.
Why? The issue has been discussed and analysed primarily in terms of a failure to understand a prosecutor’s disclosure obligations. But the underlying reason for the deliberate inaction was because the Post Office could not bring itself to face the consequences of what it had uncovered. It did not like where this might lead. So it chose not to go down that road.
Working back from the conclusion you want, arranging the facts to fit that conclusion and ignoring, suppressing and, if necessary, lying about facts that don’t fit has been the modus operandi of the Post Office throughout.
It is easy to blame this on their second and third-rate lawyers and managers. The in-house lawyers were not criminal law specialists and never seemingly bothered to find out anything about the topic despite working for – or being GCs (and being paid accordingly) of – an organisation which was a prosecutor. Some did not even know – apparently – what the criminal standard of proof was (a topic usually learnt by law students in their first term). Nor did they know that ignorance of the law is no excuse, especially for lawyers. Their external advisers knew nothing about prosecutions (according to Martin Smith) despite being paid to do precisely that work. They seem also to have missed the lessons on conflicts of interest.
But turning away from an unpleasant conclusion is not confined to inadequate lawyers. It was Lord Denning, an eminent judge, who in 1979 in a civil case brought by the Birmingham Six against police officers for how they had been treated while in custody, said the following:
“Just consider the course of events if this action is allowed to proceed to trial. If the six men fail it will mean much time and money will have been expended to no good purpose. If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous. This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further.”
It is considerably more eloquently expressed than emails from senior Post Office personnel. But the sentiments are the same. Spending money on checking whether convictions are safe and lawful is a waste of money. A bad result for those put under scrutiny is an “appalling vista”. It would harm their “brand” and “reputation”. Better not to look than find out that people have perjured themselves or coerced confessions out of the innocent. This precisely described the Post Office’s playbook.
Did the Post Office’s lawyers realise they were following in such eminent footsteps? Probably not. 1979 is a very long time ago and the history of miscarriages of justice is not a topic much taught to aspiring or practising lawyers. It should be. It is much easier to follow rules substantively, to comply with their spirit if you understand what they are trying to achieve. What seems to be missing from the many lawyer witnesses we have seen so far, is an understanding of what these rules are for and why they exist.
Disclosure by the prosecution is essential to making sure that trials are fair, that there is some equality of arms between a powerful state and individuals. It is even more essential when computer evidence is deemed true unless the individual on trial can prove otherwise. Disclosure failures are at the heart of virtually all miscarriages of justice, as retired judge Sir Anthony Hooper said with some feeling at the end of his evidence to the Williams Inquiry. The Irish cases in the 1970’s are a prime example but there have been many since – the most recent the Andy Malkinson case.
As for legal privilege, it is not some sort of fairy dust lawyers have in their pocket to sprinkle over information which their clients want hidden. It exists to give clients the space and freedom to get full and frank advice. It exists so that lawyers can speak truth to power. It is to enable clients – faced with difficult issues – to get the advice needed to help resolve those problems. Not hide them.
There are some brutal realities for the legal profession from this inquiry. In many miscarriages of justice, there will have been some failings by lawyers. But they are not usually the focus, the problems often arising from failures by the police, forensic scientists or expert witnesses. Not all result in public inquiries and rarely is legal privilege waived.
This time – with privilege waived – the veil has been lifted. What we are seeing is how lawyers have been at the heart of what has gone wrong. We are seeing how they understand (often misunderstand), use and operate the rules and their skills to enable and prolong injustice. We are seeing how remarkably passive, incurious and detached from the ethical underpinnings of their role they are. It is not a pretty sight. Are they just a few rotten apples?
There are more senior, independent lawyers yet to give evidence. What will they add to this picture?
Photo by Melinda Gimpel on Unsplash
Garbage In, Garbage Out
January 10 2024
Foolish to believe that computers and their software are infallible. Even more foolish to change the presumption as the Law Commission recommended some 25 years ago. That change must now be reversed, as I argue here –
Law on computer evidence must change in wake of UK Post Office Horizon scandal
The full article is below –
One of the less appreciated aspects of the UK Post Office Horizon scandal is that it was made possible by a legal change in 1999 on the admissibility of computer evidence. That change was made following a flawed Law Commission analysis which showed two things:
- how poorly lawyers understand technical evidence, especially software and digital evidence generally;
- the arrogance of those who do not know what they do not know.
It was an ignorant arrogance not confined to the Law Commission. Its recommendation effectively reversed the burden of proof and made it practically impossible for a defendant to prove that computer-based evidence was not accurate. There was simply no understanding of how complex computer systems operate nor the importance of their reliability.
MPs who passed the relevant law treated this change with a frivolity which would be mildly amusing were it not for its baleful consequences. They made the mistake of thinking that because computer technology had become more complicated, thus making it more difficult to prove reliability, the answer was not to bother at all because this would be “impractical”.
The idea that it was precisely this complexity which made it imperative to find a way of ensuring and proving that it could be relied on did not – apparently – occur to them.
The relevant Minister, Paul Boateng (a solicitor) treated it as a trivial change, commenting about eight-year-old children being the only ones to understand computers. There was simply no understanding of how complex computer systems operate nor the importance of their reliability nor the vital necessity for a whole range of people and groups to be able to rely on and trust their reliability.
That was then. Now – more than two decades later with the knowledge of the Post Office Horizon scandal (and others) arising because of this change – is the government going to look at this again?
No. In 2022 the Justice Ministry said there were no plans to review this (despite in 2020 a paper having been prepared by lawyers and IT professionals setting out some detailed proposals as to how the law on computer evidence might be reformed). Having a law which is at odds with how society works today, which has the potential for prejudicial consequences and which undermines the trust essential to the working world is absurd.
Why? The relevant Minister has stated that the presumption that what a computer says is accurate “has wide application”. This is to repeat the error made in 1999. Then it was “impractical” to expect people to prove their evidence was reliable because this was too difficult. Now it is too much effort to review it because it is used so widely so it is again too difficult.
But it is precisely because it has wide application that it is imperative that the law catches up with the world as it is now, that it be based on a proper understanding of IT. We are in a digital world which is only going to become more so. Laws which do not reflect that and which are based on ignorance (or laziness) are unpardonable.
This not an issue which only matters when someone is prosecuted. The reliability of computers matters to customers: of banks, insurance companies, pension companies, investment firms. It matters to every one operating in the financial sector. It matters in relation to monitoring. It matters in relation to disclosure and discovery. It matters to customers of entities in a wide range of sectors. It matters to regulators of entities in a wide range of sectors. It matters to patients. It is hard to think of any commercial sector or activity where it does not matter. This is only going to become more important with the increasing use of AI.
If the law says that you don’t need to prove that your systems are working properly, in a court battle, this risks undermining the need to do so, rather than reinforcing it. If your customers and counterparties assume that your systems are reliable and they turn out not to be, how will they react on being told that, too bad, the law says they are and it is up to them to prove otherwise?
Having a law which is at odds with how society works today, which has the potential for prejudicial consequences and which undermines the trust essential to the working world is absurd. And will become absurder still as AI technology and its use expand.
Directors of companies have a duty to “promote the success of the company”. Directors of regulated companies have additional duties, particularly in relation to the technology and systems they use and the information which is captured, stored and derived from them. They need to be able to show their regulators – and other stakeholders – that their systems work effectively, are reliable and that the information coming from them can be trusted.
The government needs to look at this again. And this time involve and listen to IT professionals and others who really understand how computer systems work and how they can go wrong. It could do with listening to those who understand the consequences of such failing.
Fortunately, this time the Law Commission is led by someone who certainly does understand this. Mr Justice Fraser was the judge who decided the Bates vs The Post Office litigation which blew this scandal open. He was less than impressed with the Post Office’s factual statements about Horizon. He is now the new Chair of the Law Commission. Time for the government to stop finding excuses for inaction.
Photo by Markus Spiske on Unsplash
