Lawyer Watch

Post Office II: Contempt, recusal, culture

A few extra points on what questions are posed the Post Office case now I have had a chance to dig into the detail a bit.

The Court of Appeal praised the diligence and thoroughness of the post-conviction disclosure carried out in relation to the appeals (paragraph 61 of the Hamilton judgment). I think it might be a bit more complicated than that. Submissions made by lawyers for the appellants to the Court of Appeal indicate the Clarke advice came to light as a result of solicitors for three of the appellant’s (Aria Grace) querying a document that had been disclosed. And it appears in fact that the more explosive of two advices from Mr Clarke, the one that showed shredding had been suggested by POL’s Head of Security, a Mr Scott, may have not been disclosed until later again. Very late disclosure made a massive difference to this case. Some have suggested to me the production of either or both these advices may have been as a result of POL waiving privilege, although it is also possible that they were advised that there was no privilege in a document which disclosed an iniquity. It may be, and I am speculating here, that their lawyers, internal or external, get to take a bow for their professionalism on this occasion.

When Nick Wallis was seeking disclosure of the first Clarke advice, it was resisted in part on the basis that the advice might be privileged (the appellants disputed this). It was also said that the CCRC had known of it since February 2015 and could have asked for it had they had wanted to see it. This piece of damage minimisation is interesting for two reasons.

1. The CCRC’s response on hearing of this was then to ask for it.

2. The CCRC were told of this in 2015 by way of a review of the evidence called in the papers the Altman Review and presumably conducted by Brian Altman QC back sometime between 2013 and 2015 for POL.

Altman was of course lead counsel on the appeal for POL.

Disclosure and contempt

This link between Altman and the Clarke advice might be one reason why a potential contempt matter was dealt with so messily. In short, one barrister (Flora Page) disclosed the ‘non-shredding’ Clarke advice to a journalist without permission from the court, she apparently had permission from her leader Paul Marshall, in advance of a hearing where she expected it to be discussed. It was embargoed in expectation of its publication the next day if I have understood it right, and Marshall forwarded the advice to the Met given its significance for an investigation into Fujitsu, again without permission (there is a moot question as to whether he needed to, but let us assume he did).

Altman raised either or both of these before the Court of Appeal as a breach of the disclosure scheme, the Met had also written to the Court about Marshall’s disclosure, and the Court of Appeal took up both disclosures as a potential contempt, asking Altman to assist them with submissions.

Mr Altman wisely and dextrously backed out of this.

The threat of contempt caused the resignation of both Page and Marshall, depriving appellants of their preferred counsel.

Most that I have spoken to think the Court of Appeal made a mess of this: Page and Marshall could have been asked to explain themselves and apologise/give assurances and that could have been the end of it without the appeal’s progress being jeopardised. The threat of contempt proceedings was only lifted today. To further underline the importance, it was Marshall who, I understand, led the initially lonely charge on the critical second limb of the appeal with Page, that it was an “affront to the public conscience for the appellants to face prosecution”.

Judges know they need to handle contempt proceedings with great care and it seems especially surprising to me that they called on Altman to help given the history of this case. In their defence, they may not have known of the Altman review and its partial disclosure of the Clarke advice at the stage contempt was raised. They would have been aware of the aggressive nature of some of POLs litigation responses, at least in the group litigation.

One also has to wonder if the Clarke advice and its prior partial disclosure via the Altman review meant that Mr Altman may have ended up being professionally embarrassed. The appellant’s case was a critical document, had not been disclosed and it seems ought to have been, and Altman knew about it. He may have forgotten or had a reasonable and genuine view that it did not need to be disclosed but by then it had been disclosed by agreement with the client. He might have predicted how it would play out and his own role in the original review might have come under scrutiny (although it did not). This must be doubly the case if he had also seen the shredding advice when conducting the Altman review, though I am assuming this was not covered then.

It is worth noting, and perhaps this is a coincidence, Zoe Johnson QC, not Altman, made the argument resisting the publication of the Clarke advice when it was first discussed before the court. Interestingly, she said, “the Clarke advice is not a smoking gun” (Transcript, para. 88) a curious comment given the charcoal flavour of the situation it revealed: evidence that should have been disclosed to the appellants was not; the Clarke advice was evidence of that. The appellants certainly smelt kippers or cordite.

Indeed, Sam Stein QCs submissions on day one, in suggesting Mr Clarke erred in not advising a more thoroughgoing review of the evidence problems that had been revealed, summed it up thus:

at this juncture there was clear evidence of individuals within the Post Office who knew what was going on, who knew that they were setting about to protect the business, and were designing themselves in a way to protect that business and do nothing else.

The significance and origins of the non-disclosure

Also of interest is what was said by the appellants to be significant about the Clarke advice(s). It is not only, the appellant lawyers say, that all the post office defendants needed to be aware of the information undermining their convictions but also that the material underlying Clarke’s advice should have been disclosed to Fraser J in the civil trial; and, the advice suggested also that POL misled led Fraser J about why POL didn’t call Dr Jenkins at the civil trial. So misleading defendants and misleading criminal and civil courts is the allegation. This puts the conduct of the Group Litigation firmly in the frame of concern. Stein says this of the High Court case before Fraser J:

In no way do we criticise Mr de Garr Robinson Queen’s Counsel or his team, nor indeed those who instruct him, Bond Dickinson LPP.  It seems that the material, on any analysis, cannot have been provided to the litigation team, otherwise it seems doubtful that they would have put forward any excuse as to the failure as to why they didn’t call Dr Jenkins.

This seems to raise the questions then for POL and its in-house legal team. A point to which I will return

The recusal application

To continue with the civil case, during the main civil hearing before Fraser J there was an application that he recuse himself for bias. This would have aborted the trial after many days of hearings. POL instructed the superheavyweight Lord Grabiner QC to conduct the application which was declined by the judge himself. POL appealed that. Coulson LJ declined their application for leave.

The judgement is quite a read. The Court of Appeal judge describes the application at various points as “without substance”, “misconceived”, and “particularly egregious”. The application is described as significantly misrepresenting the case that was before the court, both the issues and how the post office ran its own case, and it points to their aggressive strategy on cross-examination backfiring. “[N]o realistic criticism can be made of the findings of fact” by the judge let alone one suggesting bias. Parts of the application are “wholly unjustified” and wholly unpersuasive”; the timing of the application is described as discourteous and showing a “singular lack of openness”. There is also a peculiar incident where Grabiner explains to Fraser J delay in the bringing of the application being caused by them taking the view of “another very senior person” who it is intimated is either a judicial figure or barrister. Coulson LJ criticises this as “presumably made in terrorem” (in terrorem, serving or intended to threaten or intimidate; the fancy latin for My dad is going to have a word with your dad). Coulson even gives some cautious credence to the idea that the application was a purely tactical (and I think therefore illegitimate) move:

Indeed, the mere making of these applications could have led to the collapse of that sub-trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the SPMs originally submitted on 21 March that that was its purpose.

Of course Grabiner would say, quite properly, that he was acting on instructions, and that Coulson and Fraser just happened to take a different view of the merits but Coulson’s comments are very strong and Lord Grabiner he takes a some responsibility for the strategy and arguments he deployed (per Farooqi). And one can only imagine what the senior figure who was implied as having approved the idea is now thinking. If I may try and put the people involved in terrorem, it would be awful if anyone found out.

We learn too that the POL Board approved the application. This brings me back to some of the corporate governance aspects, and the lawyer’s relations to that. In broad terms, we can get a sense of how any rear guard might be fought from Brian Altman QC’s defence of the Post Office before the Court of Appeal. He sought to suggest that what was before them was more akin to incompetence than deliberate failure to behave properly as a prosecutor. There is he says: “a world of difference in limb 2 between someone who was negligent or incompetent and didn’t do their job, and someone who wilfully avoided the duties which were placed upon them” (page 48 of the transcript). One cannot rely on a concept as vague as a corporate “mindset” as being indicative of the kind of problem the appellants would have to show on appeal. And asking, as Holryde LJ does, what ought the POL as prosecutor to have known, he urges “careful definition and common sense,” here.

Scott’s order to shred minutes is dismissed as a “suggestion” from a “rogue individual” that was escalated by the head of criminal law in POL (Jarnail Singh) to outside Counsel to support the view that not producing formal minutes on disclosure matters is wrong. An alternative point might be, why does this basic point need outside advice? Was Singh not expecting to be listened to? The matter is also taken up by the general counsel, Susan Crichton (she responds quickly but a protocol for dealing with such matters takes until October). She left POL around this time and got a new role quickly too: perhaps she was fired or perhaps she stood up and said enough is enough to the Board. Principled stands certainly do occur, and usually shrouded in NDA-approved silence.

A post-conviction disclosure exercise was agreed, but this did not lead to the disclosures that ought to have been made to the defendants; indeed there are hints in some of the papers that Clarke’s advice on what needed to be disclosed changed in the light of the two reviews that were undertaken. Altman relies on the early action of the general counsel rather than the effectiveness of this action for showing POL trying to nip the shredding and disclosure problems in the bud. The recusal application adds colour the the Company’s approach to legal challenge as late as 2019.

This brings me onto my final point. I have been referred by many to the Select Committee in February 2015 where Paula Vennels, then CEO of the Post Office, gave evidence with Angel van den Bogerd (Head of Partnerships, and a start turn in Fraser J’s judgment), alongside Ian Henderson, an forensic computing expert appointed on an independent basis to look into matters raised by sub-postmasters. If I can give my impression, it looks like Vennels and vd Bogerd spin while Henderson shoots straight. There are a number of entertaining exchanges where Vennels or vd Bogerd claim X, and Henderson says the opposite of X; but the one I want to focus on is whether Henderson has been provided with the POL prosecution files he insists are necessary to his investigation. Having been provided with these initially on some cases, Henderson says that access has been subsequently blocked. They wanted to look at the depth of any investigation and “possibly even legal advice relating to the prosecution”. Vennels and vd Bogerd deny knowledge of the problem even though Henderson says they were at the meeting where it came up (Q81) and then VdB says they have been providing them. Henderson says not. It is all rather embarrassing.

At various points in the committee session the evidence turns to culture. Perhaps the most useful distillation is when Henderson says this:

[O]n the culture point, until we issued our interim report, the mantra that we regularly heard from Post Office was, “Horizon is perfect. We have total confidence in the Horizon system”. That position is slowly changing; however, in the limited cases that we have looked at—we are very concerned about the prosecution cases—we have seen no evidence that the Post Office’s own investigators were ever trained or prepared to consider that Horizon was at fault. That was never a factor that was taken into account in any of the investigations by Post Office that we have looked at.

That is a matter of huge concern, and that is why we are determined to get to the bottom of this matter, because we think that there have been prosecutions brought by the Post Office where there has been inadequate investigation and inadequate evidence to support some of the charges brought against defendants—sub-postmasters and former sub-postmasters. In particular, we are aware—this, again, is why we need to see the full prosecution files—that a common tactic employed by the Post Office, or lawyers acting on its behalf, is to bring charges for both false accounting, which is a relatively easy charge to prove, and theft; then, as a bargaining point—a plea-bargain, almost—before trial, they drop the charge for theft on the basis that, first, the defendant will probably avoid a custodial sentence and, secondly, the evidence is much simpler.

When we have looked at the evidence made available to us—bear in mind that I have been an expert witness for the Crown Prosecution Service, instructed by the CPS on fraud cases—I have not been satisfied that there is sufficient evidence to support a charge for theft. You can imagine the consequences that flow from that. That is why we, Second Sight, are determined to get to the bottom of this matter, which we regard as extremely serious.

Mr Henderson makes clear that the person who told him that the prosecution files would not be disclosed to him was “the general counsel – the head of legal for the Post Office”. We do not know if Henderson explained to the GC in the same terms as above why the files were important, but whether he did or not the GC should be sensitive to the nature of the problem and his client’s obligations as a Prosecutor. To go back to Altman’s words given the “world of difference” between “someone who was negligent or incompetent and didn’t do their job, and someone who wilfully avoided the duties which were placed upon them,” which world was it? We know from a Paula Vennell’s letter that a conscious decision was taken not to allow access to the files (on grounds of privilege (even though they could waive that), scope and competence of the review, which I will leave readers to make their own minds up on). The outcome was clearly that the Second Sight review was frustrated and justice was denied.