May 23 2024

Why asking questions properly matters.

1. Why?
Those who have attended any of my talks may remember me saying that the most dangerous word in the English language is “Why?”. Dangerous because it so often exposes those who have no answer or whose answer would make them look a fool. Or worse.

For proof of how devastating this little word can be in the right hands and used at the right time, look no further than the last 5 minutes on the first day of Paula Vennells’ evidence to the Williams Inquiry – here. (Or from 2 hours, 3 minutes in here.) The judge’s lead in and timing are impeccable. And deadly.

If you do not ask this question yourself, you risk finding yourself on the receiving end.

2. Don’t prejudge the answer.

Ask an open question. For instance: “Does this system permit remote access? In what circumstances?” and so on. Keep on going until you’ve understood all the possible permutations. If you say “I want this answer.” you cannot rely on what you will be told because it will simply echo what you’ve already made clear you want. Whether through fear of saying something people don’t want to hear, a desire to please the boss, laziness (“this’ll do“) or just the effect of believing what fits your – or others’ – preconception, you quickly cross the line into faith rather than evidence-based conclusions.

3. Ask the obvious

“Horizon is robust.” It was the Post Office’s catechism, recited at every possible opportunity, an expression of faith in a system which could not possibly be admitted to be less than perfect.

Why did no-one ever ask two obvious questions and test the answers: –

– What do you mean by “robust“?
– What’s your basis for saying so? Or even “Why do you say so?”

That word again. Why? We should use it more often than we do.

May 19 2024

This week, according to this report in the Sunday Times, the government will finally announce payment of compensation to the victims and their families of the blood contamination scandal. The scandal started in the 1970’s. Three-quarters of the victims are dead. No-one has been held accountable. Other countries facing the same issue have managed to pay compensation and hold some of those responsible accountable. Inordinate delays after scandals seem to be an example of British exceptionalism at its worst. Given the glacial progress of the British state when it comes to acknowledging, let alone remedying its failures, the subpostmasters can – presumably – expect proper compensation sometime in the 2050’s.

The report by retired judge, Sir Brian Langstaff, will detail the how’s and why’s in excruciating and painful detail. We can add this report to many similar others about the NHS. Take these, for example:

– the Francis Report into the Mid-Staffordshire Trust.

– Northwick Park Hospital: 2 inquiries into maternal deaths 2002 – 2005, then baby deaths. Its maternity unit was described in 2020 as “a risk to patient safety“.

– Morecambe Bay: deaths of babies in its maternity unit between 2004 – 2013. James Titcombe, whose son, Joshua, died because of inadequate care, is the Alan Bates of this scandal, having campaigned tirelessly since on patient safety.

– Shrewsbury and Telford: a 2017 inquiry described care so poor that 15 women and 40 babies died.

– East Kent Hospitals: serial failings here – a damning 2016 inquiry leading to 23 recommendations, only 2 of which were implemented; 24 maternity investigations from 2018 onwards; a prosecution in 2021 for serious failures in care leading to the death of a week old baby. Over a 4-year period 130 babies suffered brain damage as a result of poor birth care.

– Nottingham University Trust: between 2010 – 2020 babies suffered brain damage or still births; mothers and babies died with the unit described as “chaotic” and “dangerous“. An independent review has been established.

– And, finally, an All Party Parliamentary Report on Birth Trauma, published last week, stated that good care for pregnant women “is the exception rather than the rule“. Remarkably, this report was not the lead story in newspapers.

Columns will be written about how it is that such negligence, malpractice, cruelty and indifference can happen in a seemingly civilised society in the late 20th and early 21st century. It is the right question but put the wrong way round. Why wouldn’t these behaviours be found among people who consider themselves professional and civilised?

As CS Lewis put it:

“The greatest evil is not now done in those “sordid dens of crime” that Dickens loved to paint. It is not done even in concentration camps and labour camps. In those we see its final result. But it is conceived and ordered (moved, seconded, carried and minuted) in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice.”

It is easy to be cruel to someone when they are only a name on a document, simply the object of a process.

We can see the truth of this every day in the Post Office Inquiry. The only change to C S Lewis’s aperçu is that women have shown themselves to be quite as capable as men of these failings. Jane McLeod, the former General Counsel at the time of the Bates litigation, which blew open the whole scandal despite the Post Office’s expensive and extensive efforts to suppress it, has added cowardice to the list of misbehaviours highly trained, well-remunerated professionals (with a Code of Conduct whose spirit they are meant to follow) are capable of.

There are common themes which are found in all such scandals, whether in the NHS or the Post Office or any organisation you care to name: organisations and managers who find it hard to take criticism or learn lessons or listen to whistleblowers, who become obstinately wedded to one view, regardless of the evidence and who become defensive when challenged, whether from arrogance or a belief that because their purpose is noble, so must the practice be. Add to this, indifference to the human beings the organisation deals with – often seen as a nuisance, unjustified grumblers, on the make or simply obstacles to be processed and got out of the way.

Alisdair Cameron, the Post Office’s CFO, described this attitude well in a November 2020 document entitled “What Went Wrong”. He added:

“We should have been tackling these issues 10 years ago.”

This is a statement which can be safely said to apply to pretty much every scandal you’ve ever heard of, those you haven’t and those yet to come.

Theresa May, who set up the blood contamination inquiry in 2017, said this:

“I think what you get is a sense that it is more important to maintain the institution as a blameless institution than it is to accept a mistake and to look for the truth, the justice and accept the mistake. And the problem is, of course, with that it means that when the truth does come out, the institution looks even worse.”

Quite. Sir Wyn Williams could do no worse than use that as the opening paragraph of his report, when he finally comes to write it.

Photo by Hush Naidoo Jade Photography on Unsplash

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