News

March 12 2024

My latest article for GRIP.

What the City of London can learn from the UK police

The full article is below.

The recent Angiolini Report on the multiple failings of various UK police forces which allowed Wayne Couzens to become and remain a police officer until he kidnapped, raped and murdered Sarah Everard, has lessons for all of us, in particular, for organizations now grappling with non-financial misconduct.

An excellent review by Rob Mason, director of regulatory intelligence at Global Relay, covers how firms will need to monitor staff and the factors they will need to consider when monitoring and reviewing non-financial behavior. So what lessons can we learn from what went wrong with the police?

Prevention is better than cure

If you can avoid employing crooks/bullies/racists/sexists/incompetents in the first place, it will be very much easier than dealing with misbehavior later. It’s not just that getting rid of bad employees takes time and effort. Gresham’s Law applies: just as bad money drives out good, bad employees drive out good. They help create a bad culture. They make it harder than it ought to be to keep good people. They make it more difficult than it ought to be for others to speak up about such misbehavior.

There is a mismatch between what you (and your many procedures/Codes of Conduct) say and what your employees see you doing. You’re not simply having to monitor for – and deal with – misbehavior but also having to work harder than necessary at stopping good employees from leaving.

Hiding in plain sight is easy

One of the most surprising – and worrying – findings of the report was that, far from it being obvious to colleagues that Couzens was a violent predator, he gave the opposite impression. Many of those working with him thought he was a good officer, helpful, hard-working and so on. Rather than thinking “yes, he was capable of that” when caught, many could not believe it. It was frighteningly easy for a seriously depraved man to hide this from his colleagues.

What was true in three police forces is also true in the City. Many of the worst wrongdoers were thought of as “stars” or charming. Even the worst bullies are well capable of presenting a good side to those they need to impress. There is a level of calculation and thought in what they do. So you need to be alert and test how genuine all this “charm”, “hard work” and “starring achievement” really is.

There are always clues

The clues are usually small: the wrong dates for previous employment, small errors in addresses for credit checks, making your chaotic finances look good for the period when they are checked. All these were present in Couzens’ case; all were deliberate; all were done with the intention of presenting a picture of himself which was designed to mislead. It is a feature almost invariably found with wrongdoers elsewhere.

Small lies matter

Couzens’ small lies mattered – not because they were evidence of his offending and sexually violent interests – but because they evidenced the way Couzens, as with so many other wrongdoers, was able to compartmentalise himself, presenting the image he wanted to authorities and only sharing his true self with a few trusted colleagues.

It is not the content of the lies that (usually) matter but the fact of them. What does that tell you about someone? And if they get away with them before they have even joined your organization, what have they learnt? That they can lie and get away with it. That what you put in your procedures doesn’t really matter. They are the most important lessons they will learn – and ones which your training risks doing little to counter.

What is the point of due diligence/vetting?

Not the silly question it might seem. The point is to try and understand the character of the person you are hiring and whether the wonderful things you have been told during the interview process are too good to be true. Too often, though, they are seen as merely a tediously bureaucratic process which must be gone through, outsourced to another team, often far away, who do not understand either what they are doing or why it matters.

The risk is that any inconsistencies are not escalated or ignored and only reviewed after something has gone wrong. At that point you have two problems: those caused by your errant employee, and your faulty judgment and/or failure to take information you had asked for into account. The latter is an easy hit for regulators. They’ll take it.

Judgment matters

“Had those responsible for police vetting not allowed process to usurp their independent thought and curiosity, Couzens may not have held the office of constable for as long as he did.” (From the Report’s Foreword)

Independent thought and curiosity are always needed, no matter how good your processes. The latter are an aid to judgment, not a substitute for it.

One of the more interesting tidbits from the Report is that the Civil Nuclear Constabulary outsourced its vetting to Kent Police, made the decision to hire before receiving the results back, then did not change its mind even though the vetting showed chaotic financial indebtedness of a type which should have stopped his hire, because of the risk of blackmail and/or stress.

Couzens, who worked for many years in his father’s garage, was a fluent Russian speaker. He joined the Met because he said he wanted to do detective work, then immediately applied to become a firearms officer with the Diplomatic Protection Squad. But no one wondered whether such a person should have been guarding nuclear facilities, or have a firearm with access to diplomats, or why his actions were at odds with his stated intentions. Or, indeed, whether they might be a target for a hostile foreign state actor.

The financial world is also a target. One of my more interesting cases was discovering the hire of someone as a bond trader who claimed to be in the SAS (unevidenced) and had then taken five years out to teach in Syria during the middle of the civil war (why?). No one was asking questions about this unusual CV.

Whatever monitoring you do, look at what you were told before someone joined, look at the whole picture, don’t just focus on breaches of procedures, join up the dots, look at the whole picture and ask the obvious questions: does what I am being told up add up / make sense / is this the sort of person we want here / is this the sort of behaviour we want to see? Then act.

Make it easy for yourself

The more complicated the processes and procedures, the easier it is to make mistakes, forget things, not keep accurate records. This too was a feature here. Some complication is inevitable given the seemingly endless and ever-changing rules. But try to make your processes easy to understand and follow. Make the point of them and their importance clear. Keep accurate records. Give yourself the best chance to know what is going on.

January 12 2024

Why has no-one called  the subpostmasters whistleblowers?

My GRIP article here –

The victims of the UK Post Office scandal are whistleblowers – and should be recognised as such

The full article is below –

The UK Post Office subpostmasters have been called many things over the years:

• thieves, crooks and fraudsters (often garnished with appalling racial epithets) by Post Office investigators and managers;
• victims by those campaigning for them, including MPs;
• heroes by some; and
• the “skint little people” by the dramatist, Gwyneth Hughes, telling their story in the recent TV drama.

But the one thing they have not been called, surprisingly because this is what they indubitably were, is “whistleblowers”.

Why has no one called them this? They did not call themselves that. They did not send an email marked “Whistleblowing”. They did not refer to any internal policy or press a button on the corporate website marked “Making a Whistleblowing Report” (even assuming the Post Office had such a procedure).

They weren’t even Post Office employees. But the substance of what they did was to blow the whistle on a flawed accounting system. And, subsequently, on flawed, badly understood contracts (see the March 2019 Bates Common Issues judgment) and the behavior of its internal investigators and lawyers, whose conduct is currently being reviewed by the Williams Inquiry.

It is all too easy for organisations, focused on drafting whistleblowing procedures, to forget what whistleblowing is for.

It is the substance of the message which is what makes something a whistleblowing. Not the how of its communication or the status of the messenger. If someone is telling you that something is – or may be – wrong, then rather than worry about how to categorize them, or what legal arguments you can use to justify ignoring them, you need to listen, investigate and not go after the messenger.

It is the difference between taking a “tick-the-box / does this fit the procedure?” approach and understanding what the point of whistleblowing is and why it matters.

The Post Office did not treat the subpostmasters as whistleblowers because this would have required it to accept that there was something which needed investigating – and doing so properly. It would also have made it impossible for it to demand the money it wanted. But at some more fundamental level it simply did not recognise that this was what was happening.

This is not surprising. It is all too easy for organizations, focused on drafting whistleblowing or, as they are often now called, “Speak Up” procedures, on understanding the finer points of the latest EU Whistleblowing Directive, if they have operations within the EU, or regulatory requirements or the precise remit of the Public Interest Disclosure Act 1998 to forget what whistleblowing is for.

It is not meant to be an intellectual legal categorization exercise for employment lawyers or HR personnel. Too often it devolves into an assessment of whether an individual has brought themselves within scope of the relevant law and what legal arguments might be used against them to protect the organization from an employment claim and the payment of damages.

Nor is it meant to be another process or procedure to be proudly displayed to one’s regulator or talked about in the Annual Report, a token of how “transparent” and “compliant” the organisation likes to present itself as being.

One of the hardest things for organizations – especially large ones – to do is see what is really going on in their organization. Partly it is because there is so much information and, paradoxically, despite its quantity it can too often be silo’ed. But partly it is because the information collected or focused on is about what is going well: profits made, targets met, new customers, new contracts etc …

But what you also need to know is what is not going well: complaints, demands for information from regulators or other outside bodies, legal actions, internal investigations, disciplinaries, grievances, reasons for departures, system problems, faults, monitoring reports, whistleblowing claims and so on. All of these are signs that the organization’s health is not what it should be.

Whistleblowing reports do not always come neatly packaged as such. The person raising an issue may not even realise that that is what they are doing. They may only have part of the picture, or get some of it wrong, or not understand the implications. Or miss out key facts which can only be teased out when they are spoken to. They may do so for self-interested reasons.

But none of that really matters. A concern raised – in whatever context – is a warning that something is or may be going wrong. It is a chance to look at it properly before it becomes a crisis to be managed. It is something to be welcomed because it tells you something that you might not otherwise have spotted. Or it helps you connect seemingly random bits of information and understand what that tells you.

Who tells you and what their motives may be are less important than what they are telling you, certainly until you have investigated and established the facts in a robust and reliable manner.

What organizations need is the skill to realize that they are being given clues needing proper investigation. And the sense to realise that this – proper investigation and resolution of the concerns raised – is the point of having all these procedures, processes, policies, training, Whistleblowing Champions and the rest.

Those subpostmasters were whistleblowers. It is a mark of how poorly understood the importance and purpose of whistleblowing is that it has taken two decades after the first whistleblowing legislation, passed at around the same time the Horizon scandal started, ironically enough, for their concerns to start being properly understood and addressed.

Photo: author’s own.

January 11 2024

The announcement of a law to overturn the subpostmasters’ convictions has provoked some concern amongst m’learned friends, on constitutional grounds. Are these concerns valid? Why is the government in this position?

The Dilemma

If every convicted subpostmaster in the last 25 years applied to the Criminal Cases Review Commission (“CCRC“) to have their convictions reviewed and referred to the Court of Appeal, even if they started tomorrow, it would taken an inordinately long time to deal with them (even if the Post Office did not object, which it has been doing for some). Many subpostmasters would likely die before their cases are heard; their lives would still be blighted in the meanwhile. They would have to wait for the convictions to be quashed before getting compensation. Some may simply refuse to get involved with the justice system. Who can blame them, given their experiences thus far.

There are other questions too. Who pays the costs? What about those who pleaded guilty because they were bullied into it? What about those who have died? Or those who paid money they did not owe in order to avoid prosecution? Do they get the money extorted from them under false pretences repaid?

This matter has lasted a quarter of a century. It is unconscionable to drag it out still longer. Speed is essential if justice is to be done. And it is justice which is needed now – not endless legal arguments.

Could there be a mass appeal via the normal legal process? Possibly. But would it be any quicker? Where are the resources to do it?

Unprecedented?

The main concern has been the worry about setting a precedent: the executive and legislature should not interfere with the judicial process. If these convictions are overturned by Parliamentary fiat, what is to stop a future unscrupulous PM using a large Parliamentary majority to absolve friends rightly convicted? The boundaries between the executive, legislature and judiciary are important ones. It is not daft to worry about a rush to breach them. They exist for good reasons.

But.

The legal system

A touch of humility from the legal fraternity is needed. More than a touch, in fact. This miscarriage is in large part due to multiple failings over years by lawyers and the legal process, starting with the Law Commission (which recommended the computer law change – explained here and here),via investigators, in-house prosecutors, members of the external Bar, defence lawyers, judges, those supervising or reviewing or even noticing the activities of those bodies with statutory prosecution powers (was anyone doing this? A question for the Ministry of Justice, perhaps), the CPS (to the extent it was involved), the lawyers responsible for non-disclosure, those who failed to blow the whistle (in breach of their professional duties and those owed to the courts), those advising the Post Office’s Board on its corporate law obligations, those relating to prosecutions and civil litigation and those owed to the Williams Inquiry and ending with the judiciary which did nothing about a senior retired Law Lord advising on how to get rid of the judge hearing the Bates litigation for no reason other than the Post Office’s annoyance at not getting its own way.

The legal system does not come out of this story well, however much praise is now due to those lawyers who have worked tirelessly to expose the scandal and help its victims. It is, frankly, a bit much for it to ignore all this in the rush to preserve constitutional proprieties. Doing right is what is needed now, followed by extensive reflection on its own part in this abysmal affair.

How might this be done?

It is not correct to say that there is no Parliamentary interference with the judicial process. The Attorney-General has always had the power to discontinue a prosecution in the public interest – nolle prosequi – and, in exercising this power, is answerable to Parliament not the courts. It is true that this power is only exercised before a court judgement. After, the normal route is an appeal against conviction or, exceptionally, a pardon. But note one important fact about these options: in both, a crime has been committed. But it is decided that either the wrong person has been convicted or that, for reasons of public policy, even though they had committed it, the law was unjust (e.g. pardons of soldiers for cowardice in war-time or gay men for now lawful sexual behaviour). There was a crime though.

No prima facie case

Here, we cannot say this. This is not overturning convictions because the wrong people were convicted. But because there never was any crime. There never was any money missing. The alleged “missing” monies were figures plucked out of Horizon’s behind. If this had been known at the time, would there have been prosecutions? Could there properly have been any? Wouldn’t the A-G have issued a nolle prosequi order, if the prosecutions had not been halted by the Post Office? In effect, what is being proposed now is a retrospective nolle prosequi, a finding that the prosecutions were, as the Court of Appeal has already ruled, an affront to the conscience of the court. They should never have happened because there never were any crimes to be prosecuted (as some of the Post Office’s own documents revealed to the Williams Inquiry now show). As for those prosecuted on non-Horizon evidence, based on what the Inquiry has uncovered about the conduct of Post Office investigative/prosecuting staff, no reliance can be placed on any of their work.

Why this option?

For years the criminal justice system has been underfunded. Plenty have warned of the consequences; these have been dismissed as special pleading, alarmist or unimportant. The CCRC was seen as so unimportant that it has a part-time Chair with eight other jobs, including Head of the Judicial Appointments Commission (the CCRC’s conflicts of interest policy having been lost in the post, presumably). It is why, when the Andy Malkinson case – itself one of the most serious miscarriages of justice of recent times, involving as it does, the conduct and professionalism of the CCRC itself – hit the news last summer, we were treated to the spectacle of its Chair promoting her holiday home business in Montenegro.

We see the result of this under-resourcing now: an inability to follow normal processes in a timely way; unpalatable options.

Why the rush to act? Why – because of the endless delays and denials by government and its wholly owned entity, the Post Office, only finally shamed into action by a TV drama and the consequent public outrage.

Underinvestment, a lack of professionalism, denial and delays. There are some lessons in there for governments. And the legal world. Perhaps they might heed them this time. Perhaps.

Photo by Tingey Injury Law Firm on Unsplash