The Post Office ‘where were the lawyers?’ post

Hamilton and Others-v-Post-Office [2021] EWCA Crim 577 is a pretty gut wrenching tale of corporate misdeeds. All the wrong doing is rather faceless at the minute, but it cannot – one hopes – remain that way for too much longer. For reasons which I will make clear some of those faces will very likely be legal ones.

39 Sub Post Masters and Mistresses (SPMs) convicted between 2003 and 2013 had their convictions overturned in this case. The Post Office [POL in the judgment] prosecuted.  The sole evidence in many of the appealed cases was from an online accounting system (Horizon) that had a series of flaws which meant it could not be relied upon. As the Court put it, “If the Horizon data was not reliable, there was no basis for the prosecution”. Evidence of dishonesty was, in essence, computer error.

Those flaws were either known (some in POL knew as early as 2000) or should have been known at the time, and certainly became clear later. The System was subcontracted to Fujitsu, but there was evidence that Royal Mail’s own engineers knew of Phantom sales problems, for instance. When errors were discovered they were covered up to avoid a loss of confidence in the system in branches and to avoid, a “potential impact upon ongoing legal cases where branches are disputing the integrity of Horizon Data.” Dozens and dozens of people were prosecuted, many jailed, and some have now died not knowing their shame has been lifted after this appeal.

The Court of Appeal’s view was that, as evidence mounted, the Post Office closed its eyes and ears to the truth. Did its lawyers internal and external do so too? Fraser J, who heard the group litigation arising out of these cases, said in one of his judgments, “This approach by the Post Office has amounted, in reality, to bare assertions and denials that ignore what has actually occurred, at least so far as the witnesses called before me in the Horizon Issues trial are concerned. It amounts to the 21st century equivalent of maintaining that the earth is flat.”

A key figure is likely to be POL’s [unnamed] Head of Criminal Law during the cases. Given the castigation of the Post Office in the appeal judgment and Fraser J’s high court judgments in the civil litigation on the case, there are really important questions about the conduct of the criminal cases, in particular, but also the “bitterly contested” group litigation during which, “POL continued to assert that Horizon was a robust system and could be relied upon.”

Ownership of the strategy cannot be placed simply with the Post Office in the abstract. Lawyers are professionally responsible for strategy and clients for instructions, said the Court of Appeal in Farooqi. Clients instruct the lawyer as to the true facts under this thinking, but here POLs lawyers were most likely intimately engaged in deciding what those true facts were. We need to find out how intimately engaged and in what ways. The Court of Appeal tells us that Sir Wyn Williams review of Horizon does, “not include POL’s prosecution function or matters of criminal law.”

It is this which is absolutely central to the awful miscarriage of justice in this case. The Court reminds us of,

“a prosecutor’s duty to, “disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.”

And that, “That duty continues throughout the criminal proceedings, and after conviction.” In sum, they say, “POL failed to disclose to SPMs and to the courts the full and accurate position in relation to the reliability of Horizon.” That and the unreliability of Horizon “meant that 39 of the appellants could not have, and did not have, a fair trial.”

Disclosure failures are a commonplace in appeals but this case is different. At the heart of the decision is a document disclosed only relatively recently. It discloses two pieces of advice from a Barrister, working for a solicitors’ firm instructed in relation to the prosecutions, Mr. Clarke.

The first Clarke advice is dated 15 July 2013. In it Mr Clarke set out the duties of an expert witness and the prosecution’s disclosure duties (noted above). He came to “an employee of Fujitsu, Gareth Jenkins, [who] had provided expert evidence as to the operation and integrity of Horizon” in a number of cases.  In his witness statements Mr Jenkins had said there was nothing wrong with the system.  Clarke’s advice was that, “Unfortunately that was not the case, certainly between the dates spanned by the statements….” And,

“that Mr Jenkins had been aware of at least two bugs which had affected Horizon Online since September 2010, one of which was still extant and would not be remedied before October 2013, but had failed to say anything about them or about any Horizon issues in his statements.  He expressed the firm opinion that if Mr Jenkins had mentioned the existence of the bugs, that would undoubtedly have required to be disclosed to any defendant who raised Horizon issues as part of his or her defence.”

The implication I think must be that Mr Jenkin’s statements were thought to be misleading (deliberately or otherwise, we do not hear speculation on). He may also have been used as an independent witness when he was not independent, although that too is moot. The key point being, whether deliberate or not, independent or not,

“…this failure has a profound effect upon POL and POL prosecutions, not least because by reason of [Mr] Jenkins’ failure, material which should have been disclosed to defendants was not disclosed, thereby placing POL in breach of their duty as a prosecutor.

“- By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not.  Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status.  (I have already advised on the need to conduct a review of all POL prosecutions so as to identify those who ought to have had the material disclosed to them.  That review is presently underway.)

“- Further, there are also a number of current cases where there has been no disclosure where there ought to have been.  Here we must disclose the existence of the bugs to those defendants where the test for disclosure is met.”

The Court of Appeal underline the significance of this advice as follows:

“Given that SPMs had been complaining about Horizon for well over a decade, we are bound to say that we find it extraordinary that it was necessary for Mr Clarke to advise in those terms.  We commend him for expressing himself as clearly and firmly as he did.  But it should not have been necessary for him to have to give such basic advice to a prosecuting authority about its duty in respect of disclosure.” 

But wait. There’s more… it gets worse. Mr Clarke wrote a further advice on 2 August 2013.  This made clear he’d had a conference with POL on 3 July 2013. It must have been quite a meeting.

“At that conference he had advised the creation of a single hub to collate all Horizon-related defects, bugs, complaints, queries and Fujitsu remedies, so there would be a single source of information for disclosure purposes in future prosecutions.  POL had accepted his advice and had set up a weekly conference call, three of which had taken place by the time Mr Clarke wrote his later advice.  After the third, he said, the following information had been relayed to him:

 “(i) The minutes of a previous call had been typed and emailed to a number of persons.  An instruction was then given that those emails and minutes should be, and have been, destroyed: the word ‘shredded’ was conveyed to me.

“(ii) Handwritten minutes were not to be typed and should be forwarded to POL Head of Security.

“(iii) Advice had been given to POL which I report as relayed to me verbatim: ‘If it’s not minuted it’s not in the public domain and therefore not disclosable.’ ‘If it’s produced it’s available for disclosure – if not minuted then technically it’s not.’

“iv) Some at POL do not wish to minute the weekly conference calls.”

He once more set out their disclosure obligations and,

“emphasised the seriousness of any attempt to abrogate the duty to record and retain material, observing that a decision to do so may well amount to a conspiracy to pervert the course of justice.  He ended with the following:

“Regardless of the position in civil law, any advice to the effect that, if material is not minuted or otherwise written down, it does not fall to be disclosed is, in the field of criminal law, wrong.  It is wrong in law and principle and such a view represents a failing to fully appreciate the duties of fairness and integrity placed upon a prosecutor’s shoulders.”

The Court of Appeal:

“commend the firmness and clarity of Mr Clarke’s advice.  That he should have had to give it is, if anything, even more extraordinary than the fact that he needed to write his earlier advice.  The need to give it suggests there was a culture, amongst at least some in positions of responsibility within POL, of seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly to POL.” 

It is commendable but I also have questions.

A key question for me is, of course, were any in those positions of responsibility lawyers?

But also there is another question which is, what happens next? Was full disclosure made to Mr Clarke’s satisfaction? Did this include notification that certain recent documents had been destroyed? And what did Mr Clarke and his firm do next?

If full disclosure was made, then all is well and good from their perspective. The date of this meeting and the last appealed prosecution is close to this date, so perhaps it was, although that seems unlikely given we are hearing the appeal result some 8 years later.

The nature of the instructions and relationship between Mr Clarke’s firm and POL is not clear, perhaps the advice was the end of their involvement anyway, but if it was not then there is the question of whether Mr Clarke needed to do more. Can he continue to advise or act for POL if they have not righted the failure to disclose? I think he cannot or should not; he cannot correct POL’s mistake for them, but he can and, under Bar rules I think should, insist they do so or resign.

And there is also the lurking question of what he needed to do given the likelihood that there has already been a perversion of the course of justice by the shredding of documents. At that point should he have said, that’s really the end of this: I need to decline further instructions? Perhaps, indeed, he did. And, indeed, perhaps he ensured that the relevant personnel in POL knew of the egregious destruction of evidence. To my mind, in a case of this nature, that may very well mean the General Counsel at the time and the Board. He can’t rely on ticking off some underling. The actual client has to really know what’s going on in their name. That very likely means the Board.

There are indications from the Court of lawyers finger prints on some of the other failures to disclose that the Court deals with. Disclosure is declined because it is costly and inconvenient or because something was sensitive and “Could be used as mitigation” (!).  This “plainly wrong” approach was not corrected. And other examples are given of lawyers contributing to “apparent institutional reluctance on the part of POL to investigate and disclose anything which would or could compromise the perceived integrity of Horizon.” They drank the POL Kool Aid and forgot their jobs as officers of the court. The Court reminded them that in Private Prosecution, at least, “It was POL’s clear duty to investigate all reasonable lines of enquiry.” It was the prosecutor’s obligation and it was not discharged.

“We think it clear that throughout the relevant period, POL as prosecutor demonstrated, as Fraser J found in the Horizon Issues judgment at [928], “a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary”.  Moreover, the longer that approach persisted, the more POL was able to, and did, rely upon its own past abusive conduct by asserting that no previous challenge to Horizon had succeeded.” This last assertion came from an unnamed POL lawyer.

They then emphasise the price for this unprofessional group think.

“POL as prosecutor knew that the consequences of conviction for an SPM would be, and were, severe.  …that many of these appellants went to prison; those that did not suffered other penalties imposed by the courts; all would have experienced the anxiety associated with what they went through; all suffered financial losses, in some cases resulting in bankruptcy; some suffered breakdowns in family relationships; some were unable to find or retain work as a result of their convictions – causing further financial and emotional burdens; some suffered breakdowns in health; all suffered the shame and humiliation of being reduced from a respected local figure to a convicted criminal; and three – all “Horizon cases” – have gone to their graves carrying that burden.  Inevitably, the families of the SPMs have also suffered.

As a piece of legal risk management, the Horizon strategy had a very strongly commercial logic. Shortfalls were debts. Debts had to be paid. Shortfalls were dishonest. Dishonesty could be prosecuted. Trouble is it had the SPMs in a legal pincer that was morally and intellectually bankrupt:

“In those circumstances, the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the “Horizon cases” an affront to the conscience of the court.  By representing Horizon as reliable, and refusing to countenance any suggestion to the contrary, POL effectively sought to reverse the burden of proof: it treated what was no more than a shortfall shown by an unreliable accounting system as an incontrovertible loss, and proceeded as if it were for the accused to prove that no such loss had occurred.  Denied any disclosure of material capable of undermining the prosecution case, defendants were inevitably unable to discharge that improper burden. As each prosecution proceeded to its successful conclusion the asserted reliability of Horizon was, on the face of it, reinforced.  Defendants were prosecuted, convicted and sentenced on the basis that the Horizon data must be correct, and cash must therefore be missing, when in fact there could be no confidence as to that foundation.”

Horizon was used like the Post Office was Salem. It was the Crucible. The Post Office just looked to see if it said you were a witch. Lawyers designed and managed, it seems, the legal approach to the Crucible. There are other ethical problems too:

• The conduct of the civil proceedings clearly exasperated Fraser J and were essentially founded on an untruth or irrationality. This may be an opportune moment to consider the litigation culture evidenced by the case, but also the legitimacy of the strategy and tactics employed by the Post Office.
• The Court of Appeal mentioned too that “Fraser J found that POL, in demanding repayment of a shortfall shown by Horizon, misstated the factual and legal liability of an SPM.” This is very likely to be a breach of professional obligations should the drafting, issuing of, or acting on the demands have involved lawyers. As Fraser J put it, “There can be no excuse, in my judgment, for an entity such as the Post Office to misstate, in such clearly express terms, in letters that threaten legal action, the extent of the contractual obligation upon a SPM for losses.” In summary he says, “It is oppressive behaviour.”

This sorry scandal is a matter of great public interest and raises a host of professional concerns. I hope that the BSB and SRA will investigate with all due alacrity not just to see if anyone should be held to account but also for the lessons that can be learned. There is the added complication of a Met investigation into potential perversion of the course of justice, said to be of Fujitsu employees, I think, and the clamour for a proper public inquiry. Many of the problems here are as much corporate governance problems as legal ethics problems but we should not let that fact drop between the two stools or linger for yet more years. If we ask the traditional question of all such scandals, Where were the lawyers? The only response is, ‘Where weren’t they? Because they were either at the heart of it or ought to have been. Not solely responsible, of course, but importantly responsible.