The FT contained a fascinating story on Freshfields investigation (£) into “the Reichelt affair” which it says “shows the inherent tension of compliance investigations — a system of corporate governance riddled with conflicts that is paid for, managed and communicated by a company itself.” I’m not going to analyse that in detail, not least because it relates to Germany (and there are some clear signs a good job was done in some respects). It does show the independence of investigations requires careful thought about the investigation itself; the judgements made as a result of that investigation (the evidential standards being applied for instance); and the way those judgements are communicated both by the lawyers themselves and those they regards as the client. When it comes to presenting the results searching questions have to be asked about who the client is, how to speak to them, and how to ensure, as far as possible, that work is summarised and communicated without misleading others.
It comes hard on the heels of the SRA dropping its investigations into a former Freshfields partner; Freshfields said she was “completely exonerated”. The SRA spokesperson said: ‘We have looked at all the available information and decided to close the matter with no further action. If further information is made available, we can look again at the issues.’ The case raised a lot of finely balanced issues (I wrote about it here). It was a mighty mess, and I pass no judgement on the lawyer, we rarely get to hear their side (and when we do they have had years usually to get ready). I am tempted too to say the SRA’s response sounds, at best, like exoneration lite. If it is an exoneration the SRA should be less mealy-mouthed about it and if it is not then the SRA should publicly and clearly correct Freshfields. After all misleading anyone is professional misconduct; law firms might get some leeway but not a free pass for press statements.
Meanwhile, the case that independent investigations are car crashes waiting to happen piles up. The YCCC debacle sticks in the memory. And today we hear that the SFO, in an attempt to shore itself up against concerns about its approach to disclosure has instructed a leading criminal QC to review decisions on the failed SERCO prosecutions. Mr Altman is by all accounts a highly experienced and competent criminal QC often conducting heavyweight prosecutions, but he is a rather surprising pick. He conducted a review of the Post Office’s disclosure in 2013/14 when one of many (and biggest) balloons went up on the Post Office’s prosecution of Sub-Post Masters. We don’t know much about Mr Altman’s review, but we can fairly say it was not effective in correcting the serious injustice exposed years later in the Court of Appeal. The prosecutions were found to be an affront to justice in 2021, with critical disclosure not being made until late 2020 and 2021. At least one of the critical documents (one of the Clarke advices, the one about potential perjury) was seen by Mr Altman in 2013/4. Questions remain to be answered about that; why were the Clarke advices disclosed so late? What form did his review take? How did that lead to such minimal disclosure? What lessons are to be learned from the review in the light of the Court of Appeal’s criticisms in the Hamilton case? I can see the case for an experienced prosecutor to help the SFO with the review but perhaps not one with recent experience of a case in which such serious disclosure failings occurred.
Am I right or wrong? If you would not mind can I pick my own judge to decide that? They can tell me what they think in draft; we can amend that draft; and then summarise the lessons for a report back to you. It may take a while. I’m sure you’ll agree that given my reputation is at stake they’ll have to be sure that my arguments are wrong beyond all reasonable doubt. Ok? OK?