Cryptic Disclosure: My first take on the Trojan Horse case

The Trojan Horse case (h/t Rich Greenhill for the link) is an uncomfortable reminder of how badly wrong lawyers can get disclosure obligations. It would be interesting to explore the reasons why that is and to wonder how much of this goes on unremarked upon (as nearly happened here). Whilst it can sometimes be difficult to ask a lawyer to step into their opponent’s shoes and decide which material may be relevant to, and disclosable to, their opponent’s case; that was not the case here.

Where we end up is – according to the decision of the Panel – a deliberate attempt to mislead their opponents and the Panel about the existence of obviously disclosable documents. Whether that failure was a knowing and reckless failure or a professional misjudgement (as the firm involved will almost inevitably seek to present it) remains to be seen. It will be crucial to the careers of at least some of the lawyers involved.

What it also indicates is an interesting attempt to use (or rely upon, depending on how deliberate one thinks this has been) institutional and professional boundaries to blur responsibility for disclosure problems. Counsel encouraged, the Panel and his opponents to think the real reason documents was not disclosed was a cock up in one part of Government, slightly but significantly removed from the client he represented.

Why he did so remains to be explained. Who thought the non-disclosure of documents could be said to be due to one part of government not knowing what the other held when that was untrue is an important and unanswered question in this case. Was it something dreamed up on the hoof in the heat of proceedings, perhaps as the result of misunderstanding one’s instructions? Was – as seems more likely – counsel instructed this was what happened – which seems to be a very deliberate and catastrophically damaging thing to have happened for whoever gave those instructions (could it be client, could it be the solicitors, could it just be the chaos of war)? With a Government Department, an Executive Agency, a firm of solicitors, and Counsel, there a number of ways of slicing, dicing and defining away the blame. Yet, the administration of justice should demand someone takes responsibility. So far, no one appears to have done so, save a fresh counsel –untainted by the allegations – called in at the end to make some admissions.

And interestingly, when one counsel on the case spots the problem, they are given a ‘torrid time’ for what turns out to be exposing what appears to be significant wrongdoing. The people giving them the torrid time are presumably the same lawyers caught up in the wrongdoing. And then those caught up disappear at the critical moment when the wrongdoing is revealed. It speaks to a wretched sense of professionalism and the covering already naked backs. If you are interested, read on to see a summary of the case…

The case involves a disciplinary panel on teachers accused in to an alleged plot to ‘Islamify’ Birmingham schools. There is a timeline on the BBC site here which rehearses some of the background. One of the teachers accused was represented by barrister Katie Langdon. Ms Langdon is the heroine of the piece. As has been widely reported in the press, the case was thrown out. The National College of Teaching and Learning were represented by Nabarros (who have taken the most flack for the allegations) and for the most material times instructed Andrew Colman as “Presenting Officer” (as I understand it, essentially the prosecutor of the case against the teachers).

The case was a complicated, document heavy one. Very late in the day, when the panel was about to announce its decision on the case, questions were raised about non-disclosure of the ‘Clarke transcripts’ (their existence had not, it seems, been disclosed in the unused material). After that, in December 2016, Nabarros indicated they had reviewed the transcripts and disclosed one (whilst taking the view it was not harmful to their case or helpful to their opponents). Seven others were disclosed after the Panel considered whether the confidentiality originally (and erroneously) promised to the witnesses that had been transcribed could be overridden by the public interest in the teachers’ teams having the statements. In discussing with the Panel why the documents had not been disclosed sooner, the Presenting Officer said this:

” I have to say, and I will not go into greater detail than this, that it seemed they also gave rise to some departmental misunderstanding about what material was and was not accessible to the NCTL, at an earlier stage of these proceedings, for which I apologise. That position has been clarified more recently, and so, the material has been available for those presenting the case on behalf of the NCTL to consider, and we have considered it”.

The suggestion was that the sponsoring department of the NCTL the DoE (it is an Executive Agency for the Department of Education) had had the transcripts not the NCTL. Their lawyers would be able to say, hand on heart, they had not had or seen the document. Sadly though, the position is not as it was suggested as the Panel goes on to report:

It was understood that the material which the presenting officer accepted should have been disclosed in accordance with the NCTL’s responsibilities was held by the Department of Education. Indeed, he said this included not only material which may harm the NCTL’s case and/or assist the cases of the teachers but also material which may have assisted the NCTL’s case although there was no application by the NCTL to introduce any further evidence.

The decision not to pursue material which may have assisted the NCTL might most kindly be described as being an offer in the manner of Alanis Morissette. They were, as it turns out, offering not to rain on the teacher’s judgment day when they had no water. The Panel goes on:

As at 12 April 2017, it had been accepted by the presenting officer, Mr Colman, that there had been failures in the disclosure process but that it was through misunderstanding rather than any deliberate acts or omissions on the part of the NCTL. Indeed, the following exchange took place at that hearing between Mr Colman (“AC”) and the legal advisor [to the Panel] (“RH”)

“AC: I have – the reason the Panel couldn’t decision -, deliver its decision in December has its genesis in the late disclosure of material by the NCTL, and I accepted that we should have had that before, and it should have been disclosed before. And I can say no more about that, except that as soon as we received it, we made every effort to review it as soon as possible, and did it in what in the context was extraordinarily short period of time, given the quantity of material, and have sought to move these proceedings forward since then as productively as we can.
RH: Do, do you mind if I just interrupt? You said you can say no more about -,
AC: I can’t – I can’t seek to justify the reasons why you did not have the material earlier. We should have.
RH: and it -, can you provide the Panel with an explanation as to how that has come about?
AC: I don’t think I can go further than the rather cryptic phrase I used earlier with departmental misunderstandings. Mr Faux, explained that on the defence’s part, they have assumed that the Clarke material was not held by the Department for Education but by the House of Commons. It turned out it was held by the Department for Education, and that they should have provided it to those presenting the case for the NCTL earlier.
RH: sorry, who should have provided it?
AC: the DFE
RH: So, departmental understandings are between -,
AC: between the -, there is a structure in place between the Department for Education and the NCTL put in place to try assure the judicial independence of Panels such as yourself, in that it is a separate executive agency. But it still under the auspices of the DFE. And that’s what I – I don’t think I can go further really. I think that need to take further instructions if there’s anything well-detailed required.”(sic).

The discomfort is clear and it is unfortunate that he was not asked to provide a more specific explanation as there are at least two clear possibilities (there may be others). He does not wish to disclose information harmful to his clients or he does not know the situation in sufficient detail to explain it.

Then Ms Langdon, representing one of the teachers, made a very interesting intervention. She:

stated that she had read the Clarke transcripts which had been disclosed and that she had seen certain of the text before. When she had looked back at the witness statements which had been served by the NCTL in these proceedings, she recognised the same text in those statements.

And the Panel makes this even more interesting observation:

It is fair to say that Ms Langdon was taken to task as she was making such a serious allegation [later on they refer to this being ‘torrid’ which suggest significant pressure was brought to bear on her], in effect saying that this failure to disclose was not down to departmental misunderstanding at all, but that the transcripts had been in the possession of the solicitors instructed by the NCTL at the time the witness statements were prepared for the purposes of these proceedings. This was clearly contrary to the statement made to the Panel by the presenting officer on 12 April 2017 as referred to above. Ms Langdon was afforded some time to review the transcripts and the witness statements to find out whether she was able to present to the Panel examples of similarities between the text in both documents. Ms Langdon was unable to do so but did not resile from her position that such similarities existed. Ultimately, Ms Langdon did not pursue those submissions and the presenting officer stated that if such submissions were not being pursued, “can we not just leave it at that?”

And as a result, the Panel accepted that the failures with regard to disclosure of the Clarke transcripts were caused by misunderstanding on the part of DfE and set about trying to come to a final decision. Then comes the biting of the rat that Ms Langdon had smelled but, under severe pressure from her opponents and under – we know not how much but probably significant – time pressure had been unable to fully flush out into the open.

By the time of the relevant hearing, the identity of the Presenting Officer had changed from Mr Colman to Mr Christopher Gillespie and he brought with him a document entitled “Note to Panel” dated 1 May 2017. The Panel, with admirable restraint, remarked drily:

It is worth pointing out that, despite the seriousness of the revelations contained within the Note, and despite the fact that the presenting officer, Mr Colman, and his colleague, Mr Geering, had appeared on each of the 34 hearing dates up to and including 23 June 2016 together with the additional hearing dates on 20 December 2016, 16 and 17 February 2017 and 10, 11 and 12 April 2017, neither were present nor did anyone from their instructing solicitors, Nabarros, attend.

The Note was prepared by NCTL solicitors in these proceedings, Nabarros, which had become part of CMS Cameron McKenna Nabarro Olswang LLP (“CMS”) on the same day as the note (a coincidence). The Panel was highly critical of the note which, it said, “raised more questions than answers and was conspicuously lacking in specificity. It professes to be a Note designed to clarify …It completely fails to provide such clarity.”
Importantly though, it did confirm

… that CMS had been in possession of 25 of the Clarke transcripts at the outset of their instructions which was prior to the NCTL notifying any teachers, to include the respondent teachers, that there was to be an investigation in respect of their conduct. This is in direct conflict with the understanding both the Panel and the teachers’ representatives had been allowed to believe for many months, namely that the transcripts were in possession of the Department for Education or, for example, the House of Commons and “departmental misunderstandings” had led to the failures on the part of the NCTL to meet its disclosure obligations.

And:

The Note makes clear that the Clarke transcripts were utilised when the witness statements were being prepared for the purpose of these proceedings. Their importance, therefore, cannot be overstated. The transcripts are clearly relevant and CMS must have looked upon them as relevant as they were being used in the course of the preparation of the witness statements.

The note then engages in what looks like a mealy mouthed attempt to justify the obfuscation which perhaps give some insight into the thinking of the lawyers involved, but also deepens the sense that the documents were knowingly lied about (I should emphasise we would need to hear the individual lawyers’ side of the story to be sure whether this is really so but it does not look good). It is an observation particularly important in light of the attempt to blame non-disclosure on the documents not being held by the NCTL. The claim was that to protect witness confidentiality promises (promises that could not be properly made in a watertight way) the witness statements were written in a way which, “contained all relevant evidence in the proceedings so as to make it available to the teachers and the Panel.” This in no way provides any kind of defence, that I can see, to a failure to disclose the antecedent material. The Panel are perhaps even less impressed saying the explanation is inconsistent with a number of other things that CMS (the Nabarros bit, as I am sure CMS are now thinking of it) did on the case. The Note also says the Clarke transcripts were provided to Counsel in November 2016. And that CMS had been in possession of the transcripts since late 2014. The Panel assumes , “CMS had not informed the presenting officer at any stage that they had been in possession of the transcripts since late 2014”.

After the note (on the 4th May) came a witness statement from the partner at CMS with conduct of the matter confirming they had the transcripts approximately 3½ months before the relevant witness statements were signed and finalised. And then this happened:

Despite the fact that the Panel had directed witnesses to attend to give evidence, the partner was not in attendance. The reason given for her non-attendance was that she had to attend a partners’ meeting.

The sarcastic remarks I have written here and deleted you will have to guess at. At the hearing the Presenting Officer (Mr Gillespie) accepted:

in the course of the various hearings including, and since, the hearing on 20 December 2016, the Panel and the teachers’ representatives had listened to submissions on the issue of disclosure which were not correct and that the Panel had been misled
…It was accepted …that one interpretation of CMS’s approach was that it sought to circumvent a disclosure requirement by making sure that everything they considered relevant was included in the witness statement
…Mr Gillespie stated that the decision to withhold disclosure of the transcripts was not,”….an unconscious decision. It was misguided perhaps, but the intention was to make sure that what had been said to the Clarke Enquiry, insofar as it was relevant to what was then going to be before the Panel, was contained within the witness statement now, I’m not attempting to justify that.” He went on to say, “it was not done in a way, I hope, to frustrate the proceedings. It was trying to balance a number of different issues and maybe getting the balance wrong.”

The panel unsurprisingly takes the view that the Clarke transcripts, “were deliberately withheld from disclosure”; “that CMS clearly understood the status of this category of document,” and that it is, “fair and appropriate to discontinue these proceedings for abuse of process on the grounds that it offends the Panel’s sense of justice and propriety to be asked to continue to hear the case against the teachers given the particular circumstances of the case.” And of the failure of the CMS partner to turn up for the hearing they note this:

At the very least, the Panel finds that to be disrespectful but, more fundamentally, it meant that the Panel and the teachers’ representatives were deprived of the opportunity of making further enquiries, and seeking further clarification, of what exactly had gone on when decisions were being taken in late 2014 and 2015 regarding the whole topic of disclosure.

On Mr Colman, their comments are fuller of doubt, but nonetheless I think suggest his conduct should be investigated. He is deliberately cryptic in April, when he knows of the failure to disclose and is offering a partial explanation which he cannot or will not develop upon, and we have no explanation as to how the ‘DfE had the documents’ explanation he offered to the Panel came about. The Panel is itself though is measured:

The Panel is prepared, on balance, to find that, up to 12 April 2017, Mr Colman was working on the same assumption although it is surprising to say the least that, when he was provided with certain of the Clarke transcripts in November 2016, Mr Colman neither asked, nor was told, when CMS had come into possession of them

One of the things that is interesting here is that it was at the April 27th hearing that Mr Colman made his cryptic remarks and at which Ms Langdon was given such a torrid time. By whom is not clear. Was it Mr Colman? It seems a logical thing to assume. Having not been able to give full details on how the documents had not been disclosed what did he say and do when Langdon not only smelt a rat but smelt the right rat? We do not know, but the Panel does not think they were deliberately misled:

The Panel does not consider that Mr Colman would have set out to mislead the Panel and the parties deliberately in such a serious manner…In support of this finding, the Panel notes that it was at the conclusion of the hearing on 12 April 2017 that enquiries must have been made by or on behalf of Mr Colman which revealed that the Clarke transcripts had been in the possession of CMS since October 2014 and this led to the Note to the Panel of 1 May 2017 (which we were told was dated incorrectly and should have been dated 2 May 2017). Had Mr Colman looked to mislead the Panel deliberately, no such enquiries would have been made and the Panel and the teachers’ representatives would have been none the wiser

So it seems too that after that during or after the hearing Mr Colman may also have been smelling the rat that Ms Langdon had been taken to task for asking about.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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2 Responses to Cryptic Disclosure: My first take on the Trojan Horse case

  1. Julien Burcher says:

    http://i0.poll.fm/js/rating/rating.jsExcellent piece – well done for writing this up!

  2. Pingback: The Department for Education — inept or nasty? – The Prose and the Passion

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