Team Justice? Independent Reviews

The PO Scandal is marked by a number of supposedly independent reviews from lawyers and others. Those reviews did, or were used to, play up the positives and play down the negatives.

The latest one to emerge into the public gaze was conducted by a leading KC, Brian Altman, in 2013. I have written a series of posts culminating here. Tl;dr – he reviews a review that in my view sounded like a bit of a shambles. It was nonetheless said to be ‘fundamentally sound’. This helped keep convictions unsafe for 8 years (and counting for some). The reasons for this might be subtle or they might be sinister. Let’s focus on the subtle; the subtle points to the general problems with such reviews, rather than the particular problems of the PO case.

A subtle take, during another review of a review, came from Charles Béar KC. He said, “the general purpose of this kind of review must be to protect the reputation of the Bank and to demonstrate public accountability when serious issues are raised about its officials’ conduct.” Balancing those two is tricky. Béar’s remarks refer to a piece of work done by Lord Grabiner KC for the Bank of England. He suggests there, I think, that Grabiner’s review took place within the view that:

 “We cannot come out of this at the back end with a shadow of doubt about the integrity of the Bank of England…”

That steer was reflected in less than stretching terms of reference and approach. Lord Grabiner, as it happens, also features in the PO case.

Rather than rehearse my own arguments here, I highlight one comment from an experienced GC in relation to my Altman Blogs which captures the central general problem much more concisely than I tend to:

You are absolutely right to say Richard, that lawyers are vulnerable to social, psychological and economic as well as intellectual factors when faced with a client who needs something fixed. And therein lies the flaw in the so called ‘independent review’. For a review to be ‘independent’ it must be commissioned by a someone removed from the matters being reviewed – in this case no one at the PO. Rather the Minister or an independent director of the Board. And they should have appointed someone to conduct the review with no previous knowledge or involvement with the entity being reviewed so that none of the extraneous factors, listed above, contaminate the review and the resulting report. The PO matter was a travesty at multiple levels, starting with the false prosecutions in the first place then compounded as those involved (inside and outside the PO) tried to ‘mitigate their mistakes.

I’d go further than this about what marks genuinely independent reviews but it’s a great start. To move back from the general to the particular, sometimes ‘we’ entrust Bear’s tricky balancing of reputation and accountability to the kinds of lawyers that sell their services as a Midas with the brown stuff or a steam-roller who crushes anything (and presumably anyone) who gets in his way.

Their adverts brought to my mind parody: Team Justice: the Corporate Police

… (Er…’Hell’ Yeah). A certain kind of client loves a hired gun, and a hired gun loves that love. Tainted love? Sometimes. Fundamentally sound it is not. If you want to know better what I mean, read here.

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