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

April 13 2024

Senator Howard Baker’s question: “What did the President know and when did he know it?” went to the heart of the Watergate scandal. But it was another question, asked almost as an aside, which provided the damning evidence: the question to Alexander Butterfield, a Nixon aide, about whether, in addition to the taped instructions given by Nixon to his secretary every evening, there were other recording devices in the White House. That “yes” and the content of those tapes provided the evidence that the conspiracy went right to the top and right from the start.

Something similar seems to be happening now in the Post Office Inquiry with the release of numerous recordings, involving conversations between the external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

With all the focus on Vennells, her Chairs, Alice Perkins and Tim Parker and the lawyers, we are in danger of ignoring two important areas of interest.

(1) Ignoring the role of those who were in charge long before Ms Vennells became CEO. They were told very specifically of the problems. I have written more here about what Allan Leighton, Chair in 2003 was told by Alan Bates. Mr Bates was also telling others in the Post Office from 2000 onwards. Alas, there are none so deaf as those that don’t want to hear.
(2)  Not asking questions of those further up the chain of command: those who held the purse strings, who owned the company – the government – which had a director representing its interests on the Board.

Some Questions

– How far were the Board’s actions – and failures to act – influenced by the government’s push to make Royal Mail profitable and ready for privatisation?

Remember: by the time of privatisation the majority of the prosecutions, the miscarriages of justice had happened. The Post Office was still part of Royal Mail. The evidence of Sir Michael Hodgkinson this week made it clear that the Post Office was still relying on committees of the Royal Mail Board to do detailed consideration of matters which the Board should have been considering (though how effective this was is open to question). Those in charge of Royal Mail were ultimately responsible.

– Did the Board fail to act because it did not know or want to know?

– Or did it act in the way it did – which looks remarkably like an attempt to cover up what had been happening – because that was what its owner, the government, wanted?

– Is it plausible that Parker, Vennells and others would have acted as they did – from the statements made to Parliament, the instructions to lawyers in relation to the Bates litigation, the evidence given to the court, the decisions made about what not to reveal, the decision to try and get Mr Justice Fraser removed from the case, the involvement of a senior retired Supreme Court judge in that failed venture and so on – if they hadn’t been confident that the government had their backs?

– Was this really a rogue organisation which misled its owners or kept them in the dark throughout this 20 year period while nonetheless managing to persuade it to provide ever increasing amounts of money to fight the subpostmasters and defend it in Parliament?

– And, if so, what does that say about the governance – the competence, curiosity and integrity – of the Business Department and its Ministers over this period?

– Or is it possible that the government, that Ministers and civil servants in the Business Department and elsewhere (remember the Post Office’s Chair, Tim Parker, was also Chair of the Courts and Tribunals Service at the same time as he was authorising his lawyers to try and get the judge thrown off a case involving a company he chaired) knew about – and may have been actively involved in or tacitly or explicitly approved of – the cover up of the miscarriages of justice?

That last is the question which now needs answering. Not avoiding by blaming the whole farrago on Vennells and others, however blameworthy they may be.

A troubling, current, conflict of interest

I have written elsewhere about some odd conflicts of interest which appear not to have troubled the government despite the obviously concerning issues raised. One in particular seems ever more untenable.

How can one of the Post Office’s Board directors also be on the Board of the Crown Prosecution Service, chairing the Risk and Audit Committees of both bodies, given the very real prospect of the former’s ex and current employees being investigated and possibly prosecuted by the latter?

– How can the Business Department and the Ministry of Justice possibly think this is right? Or wise?

– How can they not see that it creates, at best, the perception of a potential conflict of interest and may create an actual conflict of interest in future?

Unless they don’t care? And why might that be?

Will the Williams Inquiry get to the bottom of this? Unlikely. Unless the executives and lawyers now being held out to dry decide to talk freely. What the Business Department was doing, what it knew, what it approved, what it turned a blind eye to, what civil servants knew, what Ministers were or were not told are not within the Terms of Reference. Unsurprisingly.

But we need to know because, bad as this scandal is on the evidence we have seen so far, it would be infinitely worse if it were the government which was in part responsible for the miscarriages of justice and their cover up.

50 years on from Watergate the key question for the government remains: What did it know? When did it know it?

April 7 2024

What should in-house General Counsels do when they become aware that their organisation – or senior people within it – are, or may be, behaving unlawfully?

Back in the USA

It is not a new question.

In 1991 the head of Salomon Brothers’ Government Trading Desk, Paul Mozer, deliberately breached the rules at 5 separate auctions of US Treasury bonds between December 1990 and May 1991, falsified trading records then lied to supervisors as US regulators started to ask questions. What made the firm’s behaviour worse was that, despite the GC, Donald Feuerstein, the Chair, John Gutfreund, and two other senior executives (John Meriwether and Thomas Strauss) being told of Mozer’s behaviour during the February auction in April 1991, despite them agreeing that his conduct should be reported to the US Treasury, they did nothing. It was only in August that the Treasury was informed and, even then, the firm failed to say that top executives had known for months but failed to act, a delay described as “inexplicable and inexcusable” by Salomon Brothers’ new Chair, Warren Buffet. 3 of those 4 executives had resigned by then but not the GC who had repeatedly told senior management that they must act but had failed to make any reports himself. Eventually, he too resigned.

The report into this matter – and the conduct of the GC – was one of the first things I read when joining Salomon’s Legal Department a few years later. It was made crystal clear that, when it came to legal issues, especially reporting to authorities, lawyers could not, should not satisfy themselves with telling others that something had to be done but had an obligation to ensure that it was done and, if necessary, by them. Lawyers were not just there to advise others. Sometimes they had to act too.

And now?

Some 30 years later that lesson still needs learning, judging by what we are learning from the never-ending revelations of the Post Office Inquiry and, lately, the release of numerous recordings, involving conversations between the independent external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

Worse is what they show about the response of the Post Office’s General Counsel, their most senior lawyer and the person who should, if they understand their responsibilities properly, be ensuring the company complies with the law even if this adversely impacts its commercial interests or is deeply embarrassing (whether for the organisation or him personally of his team).

The latest recording, released by ITV, is worth dissecting. The new GC, Chris Aujard, was told by Second Sight, that his organisation may have pressured subpostmasters improperly into pleading guilty to serious criminal offences on the basis of false or non-existent evidence, failed to carry out investigations and misled the court.

“It’s that serious.” he is told.

He responds:

“My focus now is on dealing with each case as it comes through. So yeah, the macro, macro issues are another pot. They’re not in my pot. They belong to other parts of the organisation. I can feed through some of the thoughts on this call into that pot.”

And

“… I will absolutely relay on to the right people.”

What is this garbage management-speak? He was the chief lawyer. He was one of the “right people“. He had an overriding duty to ensure that the organisation of which he was the GC did not behave unlawfully. He had an overriding duty to the court to ensure that it is not misled, whether expressly or by omission, a duty overriding any other duty to his client. If there was – as he was clearly told – the slightest chance of his organisation misleading a court during litigation and/or in criminal prosecutions, he should have been all over this. Not wittering about “pots”, “macro issues” and dumping his responsibilities on others like some latter-day Pontius Pilate. “Not my job” is not what a GC should be saying when told of unlawful, potentially criminal behaviour. A GC is not a passer-by at the scene of an accident.

What should have happened

He should have informed the full Board, including the non-executive directors, of what he’d been told and what needed to be done. Did he? If he was either not listened to or told to do nothing or that it was none of his business, he should have resigned and told the legal regulatory authorities, the courts and the government why. Of course, this would have required a sense of professionalism, some ethical sense and courage. Were these qualities more widespread in public and commercial life, our organisations would be in a much better state than they are.

What does this show us?

What this vignette (and the other recently released recordings) suggest is a Board lacking the necessary curiosity alerting them to what was happening at the executive level. Or, just as likely, a Board not wanting to know, making that clear and thereby stifling any chance of independent ethical action by managers from the executive level down.

It also suggests a legal department unwilling or unable to take full and proper responsibility for the company’s investigations team and the consequent prosecutions. What sort of an investigations team the Post Office actually had and whether it really did any investigations in the proper sense of that word will be for another time. (Spoiler: no.)

It is worth noting that this approach did not start with Mr Aujard. In 2010 the Post Office’s Head of Criminal Law, Rob Wilson, when asked for his views on having an independent investigation into Horizon said:

“To continue prosecuting alleged offenders knowing that there is an ongoing investigation to determine the veracity of Horizon could also be detrimental to the reputation of my team.” (Emphasis added.)

His full response (see here) shows someone more concerned with adverse publicity, the Post Office’s reputation and damage to the business, as well as to his own team. His team’s reputation simply should not have been a factor when determining whether or not to have an independent investigation into a system whose data was being relied on in criminal prosecutions. In any event, it took another 2 years before such an investigation was commissioned.

What this recording also suggests is an organisation splitting up its management of – and responsibility for (“They’re not in my pot.”) – its response to what was being alleged in a way which weakened the GC’s authority, made it harder for any one senior person or department to see the extent of what was happening (or easier to turn a blind eye and disclaim responsibility, depending on how cynical you’re feeling) and easier to treat the constituent parts of the scandal as problems to be managed away rather than fully understood and properly handled.

Bad stuff happens

Employees will often break the rules, whether deliberately or by mistake. Sometimes they will try and cover up what they have done. Or say nothing, hoping the problem will go away. Or lie when asked. There is nothing unusual about this. But that is precisely why we have gatekeepers – in-house lawyers – to act when others don’t, when others are foolish or malicious or afraid to act. It is why the best test of an organisation’s culture is how it – its senior managers, its lawyers – respond when bad stuff happens, when things go wrong, when misfeasance, misconduct or just plain stupid mistakes come to light.

The Williams Inquiry resumes its hearings on 9 April with the interviews of a number of senior Post Office lawyers. It will be interesting to hear from them how they understood the scope of their role, whether they understood that they might sometimes be in a position where their duty to the court was in conflict with what their client wanted and what they should do in such a situation. And whether what they actually did was in line with the high standards which ought to be expected of them.

This is something all lawyers, especially in-house ones, have to have an answer to, even if you hope never to be put in such a position. An “I can’t remember.” or an “I see no ships” answer will not be good enough.