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The Past Is Not Another Country

5 May 20240Comments

It is 9 September 2013: there is a meeting between Brian Altman KC and the Post Office’s in-house and external lawyers. A key witness, Gareth Jenkins of Fujitsu, who gave oral evidence at Seema Misra’s 2010 trial, was tainted. Following advice from Simon Clarke, a barrister with Cartwright King, the Post Office had asked them to review its prosecutions since 2010. Its General Counsel, Susan Crichton, had agreed to this as the cut off date even though it excluded the Misra case. What should the Post Office do, however, if she came forward? As recorded by another Cartwright King lawyer, Martin Smith, nothing. The Post Office did not want to give her “a ticket to the Court of Appeal.”

It is worth noting what this amounted to:

  • The Post Office and its lawyers knew its key witness was tainted.
  • They knew he had given evidence at a trial leading to the conviction of a subpostmistress.
  • They knew that proactive disclosure of this would potentially allow that subpostmistress to appeal.
  • They knew that this risked undermining other prosecutions. 
  • They decided to do nothing.

Why? The issue has been discussed and analysed primarily in terms of a failure to understand a prosecutor’s disclosure obligations. But the underlying reason for the deliberate inaction was because the Post Office could not bring itself to face the consequences of what it had uncovered. It did not like where this might lead. So it chose not to go down that road.

Working back from the conclusion you want, arranging the facts to fit that conclusion and ignoring, suppressing and, if necessary, lying about facts that don’t fit has been the modus operandi of the Post Office throughout. 

It is easy to blame this on their second and third-rate lawyers and managers. The in-house lawyers were not criminal law specialists and never seemingly bothered to find out anything about the topic despite working for – or being GCs (and being paid accordingly) of – an organisation which was a prosecutor.  Some did not even know – apparently – what the criminal standard of proof was (a topic usually learnt by law students in their first term). Nor did they know that ignorance of the law is no excuse, especially for lawyers. Their external advisers knew nothing about prosecutions (according to Martin Smith) despite being paid to do precisely that work. They seem also to have missed the lessons on conflicts of interest.

But turning away from an unpleasant conclusion is not confined to inadequate lawyers. It was Lord Denning, an eminent judge, who in 1979 in a civil case brought by the Birmingham Six against police officers for how they had been treated while in custody, said the following:

“Just consider the course of events if this action is allowed to proceed to trial. If the six men fail it will mean much time and money will have been expended to no good purpose. If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous. This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further.”

It is considerably more eloquently expressed than emails from senior Post Office personnel. But the sentiments are the same. Spending money on checking whether convictions are safe and lawful is a waste of money. A bad result for those put under scrutiny is an “appalling vista”. It would harm their “brand” and “reputation”. Better not to look than find out that people have perjured themselves or coerced confessions out of the innocent. This precisely described the Post Office’s playbook.   

Did the Post Office’s lawyers realise they were following in such eminent footsteps? Probably not. 1979 is a very long time ago and the history of miscarriages of justice is not a topic much taught to aspiring or practising lawyers. It should be. It is much easier to follow rules substantively, to comply with their spirit if you understand what they are trying to achieve. What seems to be missing from the many lawyer witnesses we have seen so far, is an understanding of what these rules are for and why they exist. 

Disclosure by the prosecution is essential to making sure that trials are fair, that there is some equality of arms between a powerful state and individuals. It is even more essential when computer evidence is deemed true unless the individual on trial can prove otherwise. Disclosure failures are at the heart of virtually all miscarriages of justice, as Mr Justice Anthony Hooper said with some feeling at the end of his evidence to the Williams Inquiry. The Irish cases in the 1970’s are a prime example but there have been many since – the most recent the Andy Malkinson case. 

As for legal privilege, it is not some sort of fairy dust lawyers have in their pocket to sprinkle over information which their clients want hidden. It exists to give clients the space and freedom to get full and frank advice. It exists so that lawyers can speak truth to power. It is to enable clients – faced with difficult issues – to get the advice needed to help resolve those problems. Not hide them.

There are some brutal realities for the legal profession from this inquiry. In many miscarriages of justice, there will have been some failings by lawyers. But they are not usually the focus, the problems often arising from failures by the police, forensic scientists or expert witnesses. Not all result in public inquiries and rarely is legal privilege waived. 

This time – with privilege waived – the veil has been lifted. What we are seeing is how lawyers have been at the heart of what has gone wrong. We are seeing how they understand, (often misunderstand), use and operate the rules and their skills to enable and prolong injustice. We are seeing how remarkably passive, incurious and detached from the ethical underpinnings of their role they are. It is not a pretty sight. Are they just a few rotten apples? 

There are more senior, independent lawyers yet to give evidence. What will they add to this picture?

Photo by Melinda Gimpel on Unsplash

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What reputation?

26 April 20240Comments

In which inquiry into which institution (and, for a bonus point, when) were the following failings reported?

– warnings or concerns raised by junior staff were ignored or hidden away

– senior staff and colleagues were aware but turned a blind eye

– complainants, both internal and external, were treated as troublemakers

– a tendency to close ranks against those raising concerns

– missed opportunities: all too many moments when something could have been said, should have been said but was left unsaid

– retaliation (or threats of it) against staff

– a culture of deference: both to senior staff and to the institution

– viewing the protection of the institution’s perceived reputation as more important than dealing with its failings.

No: not the Post Office Inquiry – though all these factors, and plenty more – outright lying (by omission, at the very least), a veritable epidemic of amnesia, an inability to read or understand any sort of written document and a quite remarkable failure to understand that work in a paid job involves actually doing things, ideally useful ones – could, on the evidence of the last fortnight, be added to the list.

No – all these were the findings of an inquiry into the Gosport War Memorial Hospital in 2018 where over very many years 450 patients had their lives shortened because of the unjustified actions of clinical staff. It is a reminder that such behaviour is not a one-off, not confined to any one atrociously run institution.

That affair had something else in common with the Post Office matter. 12 different sorts of investigations over 27 years failed to uncover the full facts or lead to effective action. How can this be? Well, different bodies with different agendas, powers, without access to all the information and sometimes lacking the relevant skillset do not result in the ideal investigative set up.  

But in truth, institutions do not always really want to know about their failings. Such investigations, reviews, audits and reports are often designed to create the impression of feverish activity while uncovering nothing and giving the desired – but usually false – reassurance. So it was with Gosport Hospital – and so it was with the Post Office.

And so it has been in pretty much every other scandal, failing or other disaster: whether it is at a Boeing, a police force (too many to mention), NHS trusts (again too many to mention), charity, government department or any of the bodies where serious problems have been uncovered. The same problems, the same human failings recur in very different organisations and sectors. They recur in how mistakes happen or problems arise and, crucially, in how such organisations and those working in them respond to such mistakes and problems when they do happen.

Not if. When. Things do go wrong. But this is rarely the reason scandals happen. They happen because of how those organisations, the leaders within them and those advising them behave in response. It is how organisations – and those working in them – deal with failure, problems and mistakes which cause scandals.

Of all the WTF moments at the Post Office Inquiry in recent days, the revelation that the Post Office’s response to the suicide of a subpostmaster (Martin Griffiths, under stress because of discrepancies he blamed on Horizon and after having been made to repay money stolen by robbers who beat him up) was to appoint a media lawyer to advise it as he lay dying in hospital and then to “drip feed” compensation payments to his widow to buy her silence is one of the worst. The cynicism, the exploitation of grief and weakness, the bullying, the determination to avoid scrutiny, to prevent the facts – even when a tragedy happens – coming out are bad enough. That this was done by senior executives with the help and advice of professionals, none of whom seem ever to have asked themselves whether what they were doing was right makes it infinitely worse.

One of the key executives involved in this – Angela Van Den Bogerd – gave evidence at the 2019 “Common Issues” trial in the Bates litigation. Mr Justice Fraser said of her that she had sought to mislead him and, in future, he would only accept evidence from her if it was “clearly and incontrovertibly corroborated by contemporaneous documents“. This is the judicial equivalent of “Liar, liar, Pants on fire.” There was no investigation by the Post Office into her conduct following that trial, no adverse effects for her at all. On the contrary, she received a bonus for her work.

Organisations and professionals behaving like this show us who and what they really are. They have no reputation worth preserving.

Photo by MARK ADRIANE on Unsplash

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The Manuscript, The Notary and The Forgetful Publisher

21 April 20240Comments

This week I became a character in a story that might have been written by Balzac and found myself part-owner of a work of national cultural importance.

It started with a beautifully written letter from a firm of genealogists working for the French government, complete with official stamps. They were writing to me as one of the heirs of my great-great-grandfather, André Adolphe Sala, Count Sala. A scam? No – the firm was genuine. One of the key details was wrong, however. There was a missing “great”. He was my great-great-great-grandfather. Tsk. Unlike many, I can trace my ancestors back very many generations because many of them are famous and so others have taken an interest and done all the hard work. I knew they were famous but growing up they were simply family characters, a source of stories, as everyone sooner or later was.

André Alphonse Saladduchin was born in Florence in 1802 later moving to Paris. His god-father was Ferdinand de Lesseps, the engineer who built the Suez Canal. André Sala wrote a book about the 1830 revolution which overthrew Charles IX and put his cousin, Louis-Philippe on the French throne – Dix Jours De 1830: Souvenirs de La Dernière Révolution. He was part of a corps of engineers who went to Egypt with de Lesseps, died and was buried there. His eldest child, Jeanne, was my grandmother’s grandmother: five generations of eldest children – all female. Jeanne married Alexandre Colonna Walewski, the French Consul-General to Turin (and son of the French-Jewish actress, Rachel Felix), had two children and died aged 35 in Palermo. But her eldest child – Madeleine, my great-grandmother, known by all as “Grand-mère” – lived to 86, dying only 3 years before my birth. She was very close to her father, who wrote a loving book to her on her marriage: a sort of guide to and advice on life. One day I must translate it. 

Then came my grandmother – also called Jeanne, my mother and me. All formidable, fierce and, in the case of my mother and grand-mother, fiercely loving women with a zest for life and a sense of fun. Grand-mère was rather stricter and keen on the social proprieties. She did not get on particularly well with her daughter, was teased by her grand-children and, despite living with them, must have been a glowering family presence.

They were born into well off, socially respectable, aristocratic Franco-Italian families, with a keen sense of their place in the social structures of their day. As happened to so many, the expected rhythms of their lives were disrupted by tumultuous political changes, especially in France, wars, its privations and diseases. Social appearances and public conduct mattered but behind that there was much disgraceful misconduct: affairs, illegitimacy, an actress in the family and so on. Despite all the changes, when I was growing up with my grandparents in Italy, many of the rhythms of that 19th century/pre-WW2 life remained – clothes for “best”, afternoon tea with aged distant relatives, chamber pots next to the bed to avoid night-time walks down long draughty corridors to the bathroom, the children brought to the adults’ drawing room to be admired and cooed over and told how much they’d grown then sent back to the playroom to our relief and, I suspect, theirs, the silver polished for special occasions, a reverence for French culture, noisy arguments about current affairs, long-standing family quarrels and historical events as if all mattered equally and an admiration for Britain: tea, tailoring, tartan and novels by long-forgotten lady novelists later revived by the Virago Press. Their bookshelves were an eclectic mix: Radclyffe Hall’s “The Well of Loneliness” was mixed in with the Fables de La Fontaine, Hector Malot, Sorrell and Son and AJ Cronin. Pearl S Buck too. I read them all voraciously and the life described in 19th and early 20th century novels did not seem that unfamiliar.

Why is the French government writing to me? 

A few years back, the descendants of a Parisian notary tried to sell the only remaining manuscript of Mémoires d’Outre-Tombe by François-René de Chateaubriand, the father of French romanticism and a key influence on Victor Hugo. (It had remained undisturbed in a notary’s safe for 180 years). The sale was stopped and after a lot of arguments between the descendants of the notary and the writer, the French government established that the manuscript belonged to a publishing house, one of whose partners was André Sala. How many engineers owned publishing houses then? Or now?

The letter went on: the French government wished to “acquire” the manuscript and needed the heirs’ permission to do so. There are many heirs: 8 from Jeanne Sala through her daughter – Grand-mère; another 10 through Grand-mère’s brother, André, and who knows how many from Jeanne Sala’s brother. He, Maurice, married (like so many aristocrats of his generation) an American – Emily Sanford – known to my mother and grandmother as Tante Sala. I have a portrait of her in old age when my mother would have known her: faded as it is and despite the damp spots, she was beautiful.

“Acquire”. What does that entail? A polite “merci” accompanied by the assurance of “sentiments les plus distinguées”? Filthy lucre? Who knows? The family tree and names of heirs will be sent to the Ministry of Culture who will then contact us. If they are all as argumentative as my family, the Ministry will be trying to herd cats. For my part, I look forward to a ceremony (I shall wear the bracelet André Sala bought for his daughter in Egypt, an entirely worthless example of Egyptian gift shop workmanship ca. 1860) where I will be presented with a cheque (a banker’s draft would be comme il faut) for some magnificently irrelevant sum which I can frame and hang next to Tante Sala.

A lawyer would say that this is what comes of not making clear wills. Pfft! And miss out on such a story, nearly 2 centuries in the making. Non!

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The Heart of the Matter

13 April 20240Comments
The Watergate Senate hearings – 1973

Senator Howard Baker’s question: “What did the President know and when did he know it?” went to the heart of the Watergate scandal. But it was another question, asked almost as an aside, which provided the damning evidence: the question to Alexander Butterfield, a Nixon aide, about whether, in addition to the taped instructions given by Nixon to his secretary every evening, there were other recording devices in the White House. That “yes” and the content of those tapes provided the evidence that the conspiracy went right to the top and right from the start.

Something similar seems to be happening now in the Post Office Inquiry with the release of numerous recordings, involving conversations between the external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

There has been an understandable focus on what Vennells, her Chairs, Alice Perkins and Tim Parker and the lawyers knew and did from 2013 onwards when Second Sight were telling them what they were finding. But this has two dangers:

  1. Ignoring the role of those who were in charge long before Ms Vennells became CEO. They were told very specifically of the problems. I have written more here about what Allan Leighton, Chair in 2003 was told by Alan Bates. Mr Bates was also telling others in the Post Office from 2000 onwards. Alas, there are none so deaf as those that don’t want to hear.
  2. Not asking questions of those further up the chain of command: those who held the purse strings, who owned the company – the government – which had a director representing its interests on the Board.

Some Questions

– How far were the Board’s actions – and failures to act – influenced by the government’s push to make Royal Mail profitable and ready for privatisation?

Remember: by the time of privatisation the majority of the prosecutions, the miscarriages of justice had happened. The Post Office was still part of Royal Mail. The evidence of Sir Michael Hodgkinson this week made it clear that the Post Office was still relying on committees of the Royal Mail Board to do detailed consideration of matters which the Board should have been considering (though how effective this was is open to question). Those in charge of Royal Mail were ultimately responsible.

– Did the Board fail to act because it did not know or want to know?

– Or did it act in the way it did – which looks remarkably like an attempt to cover up what had been happening – because that was what its owner, the government, wanted?

– Is it plausible that Parker, Vennells and others would have acted as they did – from the statements made to Parliament, the instructions to lawyers in relation to the Bates litigation, the evidence given to the court, the decisions made about what not to reveal, the decision to try and get Mr Justice Fraser removed from the case, the involvement of a senior retired Supreme Court judge in that failed venture and so on – if they hadn’t been confident that the government had their backs?

– Was this really a rogue organisation which misled its owners or kept them in the dark throughout this 20 year period while nonetheless managing to persuade it to provide ever increasing amounts of money to fight the subpostmasters and defend it in Parliament?

– And, if so, what does that say about the governance – the competence, curiosity and integrity – of the Business Department and its Ministers over this period?

– Or is it possible that the government, that Ministers and civil servants in the Business Department and elsewhere (remember the Post Office’s Chair, Tim Parker, was also Chair of the Courts and Tribunals Service at the same time as he was authorising his lawyers to try and get the judge thrown off a case involving a company he chaired) knew about – and may have been actively involved in or tacitly or explicitly approved of – the cover up of the miscarriages of justice?

That last is the question which now needs answering. Not avoiding by blaming the whole farrago on Vennells and others, however blameworthy they may be.

A troubling, current, conflict of interest

I have written elsewhere about some odd conflicts of interest which appear not to have troubled the government, despite the obviously concerning issues raised. One in particular seems ever more untenable.

How can one of the Post Office’s Board directors also be on the Board of the Crown Prosecution Service, chairing the Risk and Audit Committees of both bodies, given the very real prospect of the former’s ex and current employees being investigated and possibly prosecuted by the latter?

– How can the Business Department and the Ministry of Justice possibly think this is right? Or wise?

– How can they not see that it creates, at best, the perception of a potential conflict of interest and may create an actual conflict of interest in future?

Unless they don’t care? And why might that be?

Will the Williams Inquiry get to the bottom of this? Unlikely. Unless the executives and lawyers now being held out to dry decide to talk freely. What the Business Department was doing, what it knew, what it approved, what it turned a blind eye to, what civil servants knew, what Ministers were or were not told are not within the Terms of Reference. Unsurprisingly.

But we need to know because, bad as this scandal is on the evidence we have seen so far, it would be infinitely worse if it were the government which was in part responsible for the miscarriages of justice and their cover up.

50 years on from Watergate the key question for the government remains: What did it know? When did it know it?

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A Lost Decade

10 April 20240Comments

Scandals and misconduct do not come out of nowhere. When people misbehave there is usually a clue, often more than one, usually ignored (even if carefully collected and correctly filed) or hand-waved away as unimportant (see the Angiolini Report on Wayne Couzens, for instance). The same applies to scandals involving organisations and actions (or a lack of action) by many people. There were warnings; there were whistleblowers; people were told. Coupled with this is a failure to take this information seriously, a failure to investigate properly or at all, a determination to ignore evidence and, often, a decision to remove, ignore or badmouth those raising concerns. Out of these two ingredients are our scandals made.

This is the case in the Post Office scandal and – this is critical – very much earlier than 2013 when the independent investigators, Second Sight, were telling senior managers some uncomfortable truths. The understandable focus on this period is making us forget there were explicit warnings of the issues much earlier on – and to people right at the top of the Post Office. This became clear from Alan Bates’ evidence yesterday at the Williams Inquiry (during the morning hearing – here – from about 1 hour in until 1:52).

Two key pieces of evidence came out.

The Letter

The first was a letter he sent in August 2003 to the then Chair of the Royal Mail, Allan Leighton. (The Post Office was still part of Royal Mail.) Mr Bates’s contract had been terminated following extensive correspondence with managers from 2000 onwards in which he pointed out that “the Horizon system cannot be relied upon to give 100% accurate figures” (a letter dated 19 December 2000), he could not check the data being produced by Horizon (nor seemingly could anyone else) and therefore could not be legally held liable for so-called shortfalls if the transaction data in Horizon could not be checked and verified. He also says that he was not the only one facing problems. In that correspondence, copied to the Chair, he described – in essence – the two problems which are at the heart of the scandal:

(1) Horizon data was unreliable; and

(2) the Post Office did not properly understand its own contracts with subpostmasters. It acted as if all losses were the responsibility of the subpostmasters whereas in fact it was only ones caused by their negligence, carelessness or error. This faulty understanding lay behind the decisions to prosecute or bankrupt some subpostmasters, such as Lee Castleton.

It was Mr Justice Fraser’s judgment in the Bates litigation in 2019 which spelt out how right Alan Bates had been: Horizon was unreliable and the Post Office’s understanding of its own contracts was wrong. It should not have taken 16 years, two exceptionally long, detailed judgments and endless, ruinously expensive litigation for this to be established. Allan Leighton was alerted to these issues in 2003: a full decade before the Second Sight investigation. Various Post Office managers from 2000 onwards had also been told repeatedly of both the Horizon problems and the contractual issues but had never addressed them.

Why did Mr Bates contact the Chair? In his own words:

“I thought it was well worth trying to write to the Chairman to make him aware of what was going on because he may well have not known…..hoping that he might be able to undertake some sort of review into it and look into the case for us and take it on board a little more seriously.”

“I can’t force them to read it but if you don’t write to them then they’ll never know.”

Allan Leighton could not have been expected to look into these matters himself. But there should have been a proper investigation into what Mr Bates was saying. There wasn’t. The inadequacy of the response makes this clear. It was simply a justification of the decision taken: a polite “we’re right, you’re wrong; no we’re not going to explain anything or answer your questions.” brush-off.  In part, this was because there was no proper investigations team within Royal Mail. What was called that was in reality a debt recovery team. It had neither the authority, capability, willingness or independence of mind to investigate concerns or complaints to the organisation.

It is worth noting that when asked why he thought his contract had been terminated Mr Bates said:

“They didn’t like me standing up to them, in the first instance; they were finding it awkward; and I don’t think they could answer these questions. I think they had a feeling I was going to carry on in a similar vein going forward.”

His answer summarises succinctly why whistleblowers are mistreated by organisations, why challenge is so unwelcome and why an investigation, so that you can answer the questions put to you, is so essential. Any person, any organisation, any sort of body or ideology unwilling to be challenged is a red flag, a sign of a poor culture and one well on its way to becoming a toxic and, often, a dangerous one.

The Loss Authorisation Form

Mr Bates had rolled over in a suspense account the shortfalls he could not explain. After 2 years, the Post Office wrote this sum off using a Loss Authorization Form which stated that the loss “was attributable to Horizon system/software/equipment/training failure.” It was a standard template, a document which came to light in disclosure. By 2002 the Post Office had in place a form – and procedure – for writing off sums attributable to a variety of causes, one of which was the “Horizon system“. Yet it continued to claim that Horizon was “robust” etc., (what does “robust” even mean, here?) even while it had recognized from an early stage that losses might be caused by it and be written off. Look not at what organisations say but at what they do – especially when they think no-one is looking.

Had there been any sort of proper investigation into what Mr Bates had been saying, had his letter to the Chair been taken seriously – as should have happened – the scandal would very likely never have happened, or not to the extent it has. The majority of the miscarriages of justice happened long before Ms Vennells became CEO and for a long time after Allan Leighton had been informed of the problems.

As Jason Beer KC put it, in August 2003:

“many people had yet to be terminated, many people were yet to be prosecuted, many people were yet to be convicted and many people were yet to go to prison.”

When you strip away the reports, the millions of documents, the interviews, the evidence, the court cases and judgments, the lawyers, the documentaries, the dramas, remember this. At the heart of all these scandals – whether in the police, the post office, the NHS, childrens’ homes or elsewhere – are people (often vulnerable people) whose lives have been ruined, people who have been harmed, people who have suffered and whose suffering could and should have been stopped if only those who had the power and the responsibility to do so had paid attention to the clues waved under their noses and acted. This failure to do so and the accompanying lies – by so many bodies from government down – has degraded trust in our public and private institutions. There is still far too much resistance and denial by those responsible for the problems. It will be quite the effort to rebuild that trust. There is little sign that the scale of the task or its overriding necessity are fully understood.

Photo by 愚木混株 cdd20 on Unsplash

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Action not words

9 April 20240Comments

What should in-house General Counsels do when they become aware that their organisation – or senior people within it – are, or may be, behaving unlawfully?

It is not a new question.

Back in the USA

In 1991 the head of Salomon Brothers’ Government Trading Desk, Paul Mozer, deliberately breached the rules at 5 separate auctions of US Treasury bonds between December 1990 and May 1991, falsified trading records then lied to supervisors as US regulators started to ask questions. What made the firm’s behaviour worse was that, despite the GC, Donald Feuerstein, the Chair, John Gutfreund, and two other senior executives (John Meriwether and Thomas Strauss) being told of Mozer’s behaviour during the February auction in April 1991, despite them agreeing that his conduct should be reported to the US Treasury, they did nothing. It was only in August that the Treasury was informed and, even then, the firm failed to say that top executives had known for months but failed to act, a delay described as “inexplicable and inexcusable” by Salomon Brothers’ new Chair, Warren Buffet. 3 of those 4 executives had resigned by then but not the GC who had repeatedly told senior management that they must act but had failed to make any reports himself. Eventually, he too resigned.

The report into this matter – and the conduct of the GC – was one of the first things I read when joining Salomon’s Legal Department a few years later. It was made crystal clear that, when it came to legal issues, especially reporting to authorities, lawyers could not, should not satisfy themselves with telling others that something had to be done but had an obligation to ensure that it was done and, if necessary, by them. Lawyers were not just there to advise others. Sometimes they had to act too.

And now?

Some 30 years later that lesson still needs learning, judging by what we are learning from the never-ending revelations of the Post Office Inquiry and, lately, the release of numerous recordings, involving conversations between the independent external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

Worse is what they show about the response of the Post Office’s General Counsel, their most senior lawyer and the person who should, if they understand their responsibilities properly, be ensuring the company complies with the law even if this adversely impacts its commercial interests or is deeply embarrassing (whether for the organisation or him personally or his team).

The latest recording, released by ITV, is worth dissecting. The new GC, Chris Aujard, was told by Second Sight, that his organisation may have pressured subpostmasters improperly into pleading guilty to serious criminal offences on the basis of false or non-existent evidence, failed to carry out investigations and misled the court.

“It’s that serious.” he is told.

He responds:

“My focus now is on dealing with each case as it comes through. So yeah, the macro, macro issues are another pot. They’re not in my pot. They belong to other parts of the organisation. I can feed through some of the thoughts on this call into that pot.”

And

“… I will absolutely relay on to the right people.”

What is this garbage management-speak? He was the chief lawyer. He was one of the “right people“. He had an overriding duty to ensure that the organisation of which he was the GC did not behave unlawfully. He had an overriding duty to the court to ensure that it is not misled, whether expressly or by omission, a duty overriding any other duty to his client. If there was – as he was clearly told – the slightest chance of his organisation misleading a court during litigation and/or in criminal prosecutions, he should have been all over this. Not wittering about “pots”, “macro issues” and dumping his responsibilities on others like some latter-day Pontius Pilate. “Not my job” is not what a GC should be saying when told of unlawful, potentially criminal behaviour. A GC is not a passer-by at the scene of an accident.

What should have happened

He should have informed the full Board, including the non-executive directors, of what he’d been told and what needed to be done. Did he? If he was either not listened to or told to do nothing or that it was none of his business, he should have resigned and told the legal regulatory authorities, the courts and the government why. Of course, this would have required a sense of professionalism, some ethical sense and courage. Were these qualities more widespread in public and commercial life, our organisations would be in a much better state than they are.

What does this show us?

What this vignette (and the other recently released recordings) suggest is a Board lacking the necessary curiosity alerting them to what was happening at the executive level. Or, just as likely, a Board not wanting to know, making that clear and thereby stifling any chance of independent ethical action by managers from the executive level down.

It suggests also a legal department unwilling or unable to take full and proper responsibility for the company’s investigations team and the consequent prosecutions. What sort of an investigations team the Post Office actually had and whether it really did any investigations in the proper sense of that word will be for another time. (Spoiler: no.)

It is worth noting that this approach did not start with Mr Aujard. In 2010 the Post Office’s Head of Criminal Law, Rob Wilson, when asked for his views on having an independent investigation into Horizon said:

“To continue prosecuting alleged offenders knowing that there is an ongoing investigation to determine the veracity of Horizon could also be detrimental to the reputation of my team.” (Emphasis added).

His full response (see Note (1) below) shows someone more concerned with adverse publicity, the Post Office’s reputation and damage to the business, as well as to his own team. His team’s reputation simply should not have been a factor when determining whether or not to have an independent investigation into a system whose data was being relied on in criminal prosecutions. In any event it took another 2 years before such an investigation was commissioned.

What this recording also suggests is an organisation splitting up its management of – and responsibility for (“They’re not in my pot.”) – its response to what was being alleged in a way which weakened the GC’s authority, made it harder for any one senior person or department to see the full extent of what was happening (or easier to turn a blind eye and disclaim responsibility, depending on how cynical you’re feeling) and easier to treat the constituent parts of the scandal as problems to be managed away rather than fully understood and properly handled.

Bad stuff happens

Employees will often break the rules, whether deliberately or by mistake. Sometimes they will try and cover up what they have done. Or say nothing, hoping the problem will go away. Or lie when asked. There is nothing unusual about this. But that is precisely why we have gatekeepers – in-house lawyers – to act when others don’t, when others are foolish or malicious or afraid to act. It is why the best test of an organisation’s culture is how it – its senior managers, its lawyers – respond when bad stuff happens, when things go wrong, when misfeasance, misconduct or just plain stupid mistakes come to light.

The Williams Inquiry resumes its hearings on 9 April with the interviews of a number of senior Post Office lawyers. It will be interesting to hear from them how they understood the scope of their role, whether they understood that they might sometimes be in a position where their duty to the court was in conflict with what their client wanted and what they should do in such a situation. And whether what they actually did was in line with the high standards which ought to be expected of them.

This is something all lawyers, especially in-house ones, have to have an answer to, even if you hope never to be put in such a position. An “I can’t remember.” or an “I see no ships” answer will not be good enough.

Note (1): See https://www.postofficescandal.uk/post/criminal-conspiracy-slowly-joining-the-dots/

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A Crime of a Law

1 April 20240Comments

“You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.” (LBJ)

Wise advice. A great pity it was not heeded by Scotland’s Justice Minister in 2021 when The Hate Crime and Public Order Act was passed. It is one of the SNP’s most badly drafted, illiberal and dangerous laws, despite stiff competition from the Named Persons scheme (scrapped in 2019 after defeat in the Supreme Court), the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (scrapped in 2018) and the Gender Recognition Reform Act, scrapped after a S.35 Order and, again, defeat in the courts.

It is fundamentally naive (at best) and a serious dereliction of duty (at worst) to propose a law creating new criminal offences without ensuring that it uses clear precise language, complies with other relevant legislation, does not create loopholes and can be effectively and fairly enforced. Worse is to airily dismiss any concerns about its misuse, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended. Yet worse is to bring the law into force after a three year delay without consultation with a wide range of stakeholders, including those you have publicly named in Holyrood you will consult, without having ensured proper training for the police and while also making misleading statements about what the law says. Kudos to Humza Yousaf: he’s achieved all this. All by himself. He must be so proud. 

What the law says

(1) It adds a number of characteristics which will aggravate existing offences committed because of prejudice either to a specific victim or a group with that characteristic, regardless of whether there is a victim. In addition to race, the characteristics are age, disability, sexual orientation, transgender identity and variations in sex characteristics (DSDs). Note what is not included: sex. If women are attacked because of their sex, this will not aggravate the crime and affect the sentence. This was contrary to the recommendation of Lord Bracadale whose proposals to consolidate and clarify hate crime laws started this process. Apparently, this will all be looked at from 2026 onwards. Women and men will have to wait until the 2030’s for crimes against them because of their sex to be taken seriously by the criminal law. The SNP deemed cross-dressers ( within the definition of “transgender identity”) a priority over women. Put that in context: In 2021-2022 there were 86 crimes with transgender aggravation, falling to 55 in 2022-2023, out of 289,352 recorded crimes. Scotland’s population is 5.4 million, of which 2.7 million are women.

(2) It creates a new offence of stirring up hatred against anyone within the above categories plus religion or perceived religious affiliation for a social or cultural group. Again, note what is not included: belief as well as sex. So stirring up hatred against people for having or expressing a legally protected belief under the Equality Act (that sex is immutable, say, or veganism or independence for Scotland) is fine. The offence includes behaviour or communicating material. It applies to activity within the privacy of your own home. It applies to communications which, even if created and communicated outside Scotland, can be read in Scotland. 

(3) There are some defences: a person charged with stirring up hatred is not guilty if the behaviour or communication was “reasonable” (Article 10 of the ECHR is referenced, though whether the law is compatible with the ECHR is open to doubt). Discussion or criticism of matters relating to all the categories other than religion do not necessarily make behaviour/material “threatening or abusive”. Well, that’s bloody nice of them. But note: for religion, the defence is wider and includes “antipathy, dislike, ridicule or insult”, proselytising and telling people not to be religious. So you can express dislike of religion and not commit an offence. But if you express a dislike of one of the other categories it might well be an offence. 

(4) Reports can be made anonymously. Police Scotland have stated they will investigate every single one made. They have the power to enter people’s homes to seize any material which might be evidence e.g. computers, phones etc.,.

The problems 

1. Extremists / activists / those with malign intent will always exploit badly drafted laws and loopholes for their own ends, if given the opportunity to do so. The worst case will happen at some point. 

The fact that those ends were not intended by those enacting the legislation is irrelevant. Activists have already threatened women over material relating to the debate on women’s rights / trans rights. The fact that the government has explicitly chosen to protect people on only one side of that debate is particularly pernicious. A law which protected the other side of the debate only would be equally offensive and dangerous. The likely misuse of this law has been made more likely by the fact that those groups which lobbied hard to exclude women from the law and to narrow the free speech defences have, apparently, been providing training material to the police. The police now risk appearing to be the enforcement arm of activists. Police Scotland has yet to share its training with Holyrood’s Criminal Justice Committee and its most senior officer organisation has expressed very serious concerns about the law and its effect on trust in the police. 

2. The process of investigation is itself the punishment.

Investigation can often taken an inordinate length of time, be costly and upsetting for the person under investigation and their family. This is so even if no prosecution or other action occurs. It is made worse here because, even if no criminal charge is brought, the police will record all such reports, regardless of how unjustified, malicious or vexatious they might be, as a Non-Crime Hate Incident against a person’s name. Remember the reports are entirely subjective; the police will have made a decision that objectively no crime has been committed. But you will still be put on a database of non-crimes. Such a database is statistically meaningless, of no investigative use and wide open to manipulation. 

A person has no right to know that this has happened though they can make a SAR to find out. Such records will be revealed by the police when certain types of checks for jobs are made, with potentially serious consequences but with no opportunity for the individual to defend themselves.

Bluntly, the law permits anonymous malice and nonsensical allegations based on the reporter’s perception only without any supporting evidence and their recording as black marks against an individual, without any recourse to the courts or any sort of “reasonable person” or Art. 10 free expression test. It will have a chilling self-censorship effect, even if no prosecution is ever brought.

3. Injustice takes a long time to be reversed.

Police Scotland have been aware since mid-June 2022 that this NCHI recording policy is unlawful following the Miller case. They have had 18 months to change their policy and have publicly said they know they must do so. Nonetheless, only last week Humza was defending this unlawful policy. So yet another court case looms. 

To those who say no-one would do awful things with this law, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

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Referendum Blues

11 March 20240Comments

Irish voters have inflicted a comprehensive and humiliating political defeat on Ireland’s political and NGO class, which overwhelmingly supported proposals presented as “progressive” measures updating the Constitution. 

Why?

Shortly, the changes were badly drafted, unclear as to their purpose, erased women and seemed to reduce the state’s obligations to vulnerable groups, particularly the disabled and their carers. 

Some background

Ireland’s 1937 constitution reflected a conservative Catholic approach to social matters. Article 41.2 referred to a woman’s “life within the home” and how it gave the State “a support without which the common good cannot be achieved”. The same article also placed an obligation on the state to enable mothers to stay at home and not “neglect … their duties in the home”. It reflected both reality – women’s unpaid work did sustain Irish society (not just it and not just then) – and aspiration: this was how Ireland and Irish women should be. 

The Catholic Church was given effective control over much social policy – a power it hideously abused. Revelations of its activities have done significant – possibly irreparable – damage to its reputation. But there was a large dollop of hypocrisy in Irish society’s response to these revelations. It suited the government very well to outsource its responsibilities – especially for women, children and the vulnerable – to the church. It turned a blind eye to what was going on – not just what religious bodies did – but the endemic domestic and sexual violence within the family. It suited Ireland to pretend it was a God-fearing country while ignoring abandoned babies, girls going abroad for abortions, child abuse, wives trapped in unhappy marriages, violence perpetrated on women by fathers, husbands. The Church may not have been held to account as it should have been. But one group has certainly not been held to account at all: Irish men – those who took their pleasure, walked away from the consequences and abused their position in the family. John McGahern’s books are a good account of the often bleak brutal realities of Irish life. Despite much change, the realities of womens’ lives, their responsibilities, the difficulties they face, the unpaid, often unnoticed “support without which the common good cannot be achieved” have not disappeared.

The changes? 

The precise details can be found here. Briefly, the definition of “family” was to be changed to include “other durable relationships”; marriage would no longer be described as the family’s foundation. The care amendment deleted all references to women, mothers and what they do and replaced it with a reference to “the provision of care, by members of a family to one another” which the State would “strive to support”.

Why was this problematic?

  1. Who benefited from the changes?

The Family amendment was described as removing “sexist language”. So what? Irish women have long since achieved lives beyond the home, regardless of the Constitution’s wording. Divorce and abortion have given them control over their own lives. What did this amendment do for them? This was never explained. It was presented as something similar to the abortion, divorce and gay marriage referenda. But the change was unlike those: they gave no rights to those denied them nor did they enlarge peoples’ liberties. What then was their point?

2. What did voters see?

If you are not clear about what you want to achieve and who benefits, people will draw their own conclusions. There was no definition of what “durable relationships” meant. This would be down to the courts, politicians said, ignoring the reality that this both creates uncertainty and is dependant on expensive court cases. Nor was there an explanation of why all references to women needed to be removed. Many took the view that if women were not mentioned, their interests were likely to be ignored not strengthened or enlarged. This is not an unreasonable view, especially in a society with a long tradition of ignoring womens’ interests, no matter what fine words the Constitution contained. 

The Care changes were a particular concern: it looked as if the state was dumping responsibility for care of the vulnerable, particularly the disabled, on carers, overwhelmingly women, while significantly weakening its own responsibility to support either carers or those needing care. Disabled people have few legal rights in Ireland; there was concern that this position would now be constitutionally enshrined. A proposed Disability Bill in 2023 which would have given the disabled legal rights to treatments, therapies and care support was struck down by the government on the basis that it would impose a challenging “burden” on the state. This was echoed by statements from Varadkar which seemed to suggest that the state should not have such responsibility and that the disabled would have to rely on what their families could do for them. One TD has gone so far as to say that the revised wording echoed Thatcher’s views on there being no such thing as society.

3. Groupthink

There was also considerable anger at a political class which seemed to be talking only to those who agreed with it, including NGO’s – overwhelmingly funded by the government but claiming to represent particular groups – pushing the changes. It seemed out of touch. Some of this related to other matters: Ireland’s Hate Crime Bill has raised concerns that it will be used by the state to shut down debate rather than engage; immigration has raised tensions; the gender self-ID law’s provisions are not, according to opinion polls, supported by the Irish public. When issues have arisen, Varadkar’s responses have often seemed uneasy and tin-eared, sometimes petulant. 

Ultimately, those in favour could not explain why they were needed and how they would make things better. It is not enough to describe a proposal as “progressive” if you cannot describe what that progress actually is. It is not enough to say that you are embedding equality in the constitution and then erase all mention of half the population in the section dealing with family and relationships. It is not enough to focus on language but ignore the reality of what your changes mean. So No it was.

Are there lessons for us here?

Two main ones:

  1. The system of patronage which has developed whereby the political class maintain and fund unaccountable client NGO’s, rewarding their messaging with behind the scenes influence is both fundamentally undemocratic, risks creating a false narrative disconnecting politicians from voters and creates conflicts of interest.
  2. If you want to make a change, you need to show – not assert – why it is needed, who it will benefit, who it will impact or harm, how you will prevent that harm, what the unintended consequences might be and how you guard against its abuse. Too often change is presented as a self-evident good; assertion is substituted for explanation and persuasion; and any questions/objections or differences of opinion are shouted down as stupid/bigoted/ignorant/not valid. Do that once too often and voters will respond in the way Irish voters have. It is a lesson our political class would do well to heed.

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A Dismal Spectacle

23 February 20240Comments

35 years ago – on 14 February 1989 – Khomeini’s fatwa against Salman Rushdie was issued. A foreign leader instructed members of his religion world-wide to murder him because he had written a book which that leader claimed insulted his religion. After the initial outrage, some Labour politicians started rowing back, claiming that the reaction of Muslims here who supported the fatwa was understandable. It was an unprincipled, craven stance influenced by a desire not to offend Labour voters. Threatening the life and safety of a British citizen could be justified, if there were votes in it.

Politicians have usually been a bit more principled – or self-interested – when it comes to their own safety. When Stephen Timms was attacked by an Al Qaeda supporter, when Jo Cox was murdered by a man with links to far-right organisations strongly influenced by Nazi ideology, when David Amess was murdered by an Islamic State sympathiser, there was no attempt to try and appease their murderers and those thinking like them. There were endless expressions of how violence must not be allowed to influence our politics or our politicians. Rightly so. When Rosie Duffield spoke of intimidation she faced, leaving her afraid to attend Labour Conference, the Commons Speaker, Lindsay Hoyle, said this:

“Parliamentarians, who have been elected to speak up for their constituents, should be able to attend their own party conference without fear of harm. Too many people have been targeted for their opinion or the office they hold. In order to protect democracy, we need to ensure those participating can do so without threats of intimidation.“

Indeed. A pity he forgot this when messing around on Wednesday night with Opposition amendments. The procedural niceties are irrelevant. What matters is that he chose to change Parliamentary procedures because of worries about threats, intimidation and possible violence by people massed outside Parliament and others against MPs, mainly it seems Labour ones. Rather than stand up to this, he caved in. 

Starmer was silent about the intimidation of Rosie Duffield. Rather than condemn the intimidation his MPs have faced by those with pro-Palestinian views (death threats, damage to constituency offices, protests outside homes) he has left it to others – the Shadow Chancellor, the shadow crime prevention Minister, for instance. Starmer has limited himself to speaking about the fears for his family and the intense pressure on MPs.

There were claims that Labour had bullied the Speaker, though Starmer has now “categorically” denied this. What appears to have happened is that threats to MPs were used as emotional blackmail for political advantage, to improve his party’s standing with those making the threats. Starmer may have just wanted a motion allowing his MPs to vote with the party and their conscience. But by ignoring the threats of violence, by Hoyle admitting that these were a factor, a terrible signal has been sent out. Threats of violence work. This week, Parliament’s representatives made themselves complicit in terrorism directed at themselves, treating it as if it’s normal, as if it’s justified. There is a word for this: appeasement.

Threats of violence to obtain political change are not justified in a democracy. They should not be normal. They have been – for months now – out of cowardice, out of fear of being on the wrong side of an emotional argument over an issue about which this country can do little or nothing, out of a desire for votes. But no decent political party should want the votes of those who threaten our political representatives. It does not matter whether you are pro-Israel or anti-Zionist; it does not matter if you passionately dislike Netanyahu or think Hamas should be eliminated, no matter what; it does not matter if you simply worry about the human cost of Israel’s actions, how this will help the hostages and where this will all end; it does not matter if you don’t care about the issue at all. There has been little regard – and even less effective action – for members of the public made fearful, worried about their safety or targeted because of their religion. It should shame us as a country that in Britain in 2024 Jews should have to hide their identity in public or be told by the police to do so to avoid trouble, that they should have to pay for extra security, that there should be guards outside schools or places of worship or social centres.

What matters is that on Wednesday threats of violence were used to derail Parliament. The Labour MP, Ben Bradshaw stated the following day that MPs’ fears about violent retribution were a “perfectly legitimate” factor for the Speaker to take into account. If this really is Labour’s view, if Labour cannot see that threats and thuggery are the issue, Labour has a problem. We have a problem if Labour forms the next government.

On Thursday we learnt that Ministers have failed to take seriously advice they’ve received about tackling Islamist extremism, including clamping down on a Hamas support network in this country, thus putting the public at risk. Ministers ignoring advice and doing little about the matters they’re responsible for is hardly news. It would be a welcome surprise to learn that they have done something effective. Last week we learnt that anti-Semitic attacks in this country had risen to a 40-year high. An MP has said he won’t stand again because of threats by Islamists against him, his family and arson at his office. Even the recently elected Labour MP for Kingswood has been offered extra security because pro-Palestinian extremists abused him over his Israeli-born husband. Perhaps all these are related? Perhaps Parliament might turn its mind to these matters rather than childish arguments about procedural shenanigans over motions which will have no practical effect whatsoever? Perhaps Parliament might realise that appeasing the violent is neither an effective strategy nor a morally decent one?

This week has shown our political class at its worst. On Monday, a Business Minister whose aggrieved belligerence is only ever deployed in her defence and not for the victims of a miscarriage of justice by an organisation she is ultimately responsible for, got involved in a public spat – not just with its former Chair – but with one of the few MPs (Kevan Jones) who has been fighting hard for the subpostmasters for longer than she has been an MP. A former PM, whose only claim to fame will be her disastrous 49-day Premiership, decided to blame it on trans activists and green extremists, thus proving that life on the backbenches has not improved her grasp on reality. And the Defence Secretary has realised that this is a damp country which might explain why our missiles cannot launch from a submarine, which … er … spends its life in water. Maybe it was his idea of a joke.

It’s only Friday.

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Questions The Business Select Committee Should Be Asking

18 February 20241Comment

Of the sloping-shouldered former Post Office Chairman, Henry Staunton, whose interview is the lead story in today’s Sunday Times. There is much of interest in it, but this detail stuck out:

“Early on, I was told by a fairly senior person to stall on spending on compensation and on the replacement of Horizon, and to limp, in quotation marks – I did a file note on it – limp into the election,” he said. “It was not an anti-postmaster thing, it was just straight financials.”

Something marvellously catty about the reference to a “fairly” senior person. Who’d now want to out themselves as only “fairly senior” in order to disprove this, on the face of it, damning allegation?

Worth reading the whole interview as an example of someone trying to present themselves as a heroic whistleblower, ground down by the CEO, the Business Department, UKGI, everyone who should have behaved better and then summarily sacked as a scapegoat by a Minister he had not even met. It makes one want to weep – with laughter really – when one remembers that he was a well-paid Chairman of the Post Office, not some hapless passer-by wringing his hands at the scene of an accident wondering why no-one was doing anything.

He says he was approached by headhunters to do this job. (Where do they get them from? A list on a pinboard in David Cameron’s shepherds’ hut?) Despite his claim that he heroically gave up his golf, tennis and “place in Cornwall” (the oh so predictable hobbies of the over-monied English classes) wanting to “give something back” having “just trousered all this money”, in fact he only gave two days a week to this job, even after discovering that governance was “shocking”. Not that he seems to have done much about even this, telling the Business Select Committee last June: “No Board member is going to read every page of a 200 page report.” What? Not even when the directors are legally responsible for that report’s contents? Remember that when reading his complaints about poor governance of a company he chaired.

That Committee reconvenes on 28 February. It should invite Mr Staunton to answer some questions on oath. Here are a few to start them off.

  1. Who was the “fairly senior” person who told him to stall on compensation? In which department? 
  2. When did the conversation happen? Who else was present? What else was said?
  3. Where was his file note put? Was it copied to anyone? If so, whom?
  4. What did he do in response? Did he raise it with anyone? If so, full details please.
  5. Did he raise with this “fairly senior” person the legal liability arising if someone acts as a shadow director?
  6. Did he ask to meet with the Business Secretary to discuss his concerns about compensation? Or any of the other problems he now describes?
  7. How exactly was the CEO, Nick Read, able to write a letter to the Justice Minister seeking to undermine the proposal to overturn subpostmasters’ convictions despite Staunton’s view and that of “at least half of the board” being against this. Is he saying that the CEO defied the Board?
  8. If it was UKGI which instructed Read to do this – as Staunton claims – did he or the Board consider resigning given that such behaviour would seem to undermine not just the Board (“terrible terrible governance” in Staunton’s words) but also what the Prime Minister and Justice Minister had stated on the record in Parliament? 
  9. What other evidence does he have that UKGI appears to oppose blanket exoneration of the subpostmasters?
  10. What steps did Staunton take to improve or change the compensation schemes the Post Office was managing, schemes he now describes as terribly “bureaucratic”, “pedantic”, “unhelpful” and “unsympathetic” in the year between his appointment and the TV drama. Perhaps he was obstructed at every turn. Perhaps he was not very good at his job. Which one was it? If the former, did he consider resigning? If not, why not? 
  11. What did he or Nick Read do about the investigators Read described as “the untouchables”? What was his relationship with the General Counsel, Ben Foat, to whom these “untouchable” investigators report?
  12. Who is the “Whitehall insider” the government wanted as the new senior independent director instead of the Board’s choice, the casus belli apparently for Mr Staunton’s sacking?

And finally – 

  1. What was the conduct which led to an investigation (as described in the article it seems to have been triggered by a whistleblower) which he sought to block – at least according to the Business Department?

Plenty more questions, no doubt. Not just for Staunton but Nick Read, the UKGI director, Lorna Gratton, Kevin Hollinrake, Kemi Badenoch, the General Counsel, Ben Foat and the as yet unnamed “fairly senior” civil servant. 

There is much to be enjoyed when the circular firing squad starts. It’s worth remembering that those blowing the whistle are often up to their necks in whatever wrong they are now speaking about. Speaking up is not always done for noble motives: revenging oneself, getting in early to earn some credit and diverting attention away from their own failings are pretty common motives. More than a whiff of these here.

Spare a thought for poor Kemi. Her MO on this has been to have a last minute announcement made just before some high profile appearances: an offer of £600,000 at 5 pm the day before her first appearance before the Business Select Committee and a few days before her first speech as Cabinet Minister to the Tory Conference. She was conspicuously absent from the front bench when the PM made his announcement on 10 January. Who’ll now remember that 9 February puff piece in the Times (“I’m on top of my brief. I will not be tripped up.”) with this thinly disguised attack on her department’s competence and integrity?

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Time to stamp this out

20 January 20240Comments

At the heart of most scandals is a conflict of interest, often more than one, which has been allowed to develop, not mitigated or managed, or simply ignored. Being able to recognise these is essential to good public administration. It is essential to good legislation (an article could be written about the policy corruption inherent in governments funding lobby groups to promote policies the government wants, then consulting with only these groups who, unsurprisingly, agree wholeheartedly with the policies suggested. Scotland seems peculiarly prone to this form of cronyism.) 

It is essential to good corporate governance. Many of the finance sector’s problems came from multiple conflicts of interest. Little wonder financial regulators spent so much time after it insisting on properly stringent conflicts of interest policies. If you have weak guardrails, maintaining good – or even broadly acceptable – conduct is much harder. Ethical blindness develops. Before you know it, you have a culture like that at the Post Office where investigators received bonuses for how much money they recovered from postmasters, regardless of any other considerations.

So I was intrigued to see on the Post Office’s website this information about one of its recently appointed Board members. In March 2023 it appointed Simon Jeffreys as a non-Executive Director and Chair of the Audit, Risk and Compliance Committee. It states that he is also “Chair of the Audit and Risk Committees of Emerging Markets Investment Trust plc, SimCorp A/S, a listed Danish financial services software company, and the Crown Prosecution Service.“

The Crown Prosecution Service?

On the CPS’s website in the section marked “The CPS Board” it says Mr Jeffreys is a non-executive director and the Chair of the CPS Audit and Risk Assurance Committee. He was appointed in December 2018. It goes on: “Outside of the CPS he chairs the boards of Aon UK and Henderson International Income Trust.” No mention of his role as Chair of the Post Office’s Audit, Risk and Compliance Committee.

Why not? Surely the CPS website has been updated since March 2023 when Mr Jeffreys joined the Post Office’s Board. Why, yes, it has: to reflect the appointment of Stephen Parkinson as the new DPP in November 2023. So why is Mr Jeffrey’s role with the Post Office not mentioned? Mr Jeffreys has not hidden it. It is on his LinkedIn profile. Surely the CPS has not forgotten this or tried to hide it? It has been told, hasn’t it? And approved it?

This is not just a bit of admin. It matters. Why? Given:

  • the possibility of prosecutions arising from the Horizon matter and the Williams Inquiry, whether of current or past Post Office staff or the Post Office as a corporate body;
  • the CPS has reportedly instructed Tom Little KC to advise on this;
  • the possibility of breaches of S.21 of the Inquiries Act in relation to the Post Office’s continuing disclosure failings in the Williams Inquiry, breaches which are criminal offences; 
  • the Post Office having a history in this matter of aggressively challenging those authorities which seek to hold it to account (see its failed attempt to get the judge ruling against it in the Bates litigation to withdraw on the grounds of perceived bias – yes, bias – every scandal needs its ironic moment); 
  • these are risks the Post Office faces and, therefore, something the Post Office’s Audit, Risk and Compliance Committee, which Mr Jeffreys chairs, will surely need to be briefed on and consider; and 
  • the separate obligations the members of the CPS Board have – and regardless of how impeccable Mr Jeffreys’ professional conduct may be ….

How can it be appropriate for Mr Jeffreys to be on the Board of both entities and Chair of their respective Risk and Audit Committees? 

There is no suggestion at all that Mr Jeffreys has been involved or in any of the matters which might be the subject of prosecutions. Nor that he is doing or might be doing something unlawful. The problem is that it creates the perception of a potential conflict of interest. It may create an actual conflict of interest in future. But even the existence of a perception of a conflict of interest should have made all those involved realise that this appointment was unwise. What was the CPS thinking when (if?) it approved it? The Post Office and the CPS should consider whether he can continue in either or both of these roles.

One other point. Look at how many other roles these directors have, important ones too. They do not have day-to-day operational responsibility but these supervisory committees matter. They are meant to be one way in which tough external scrutiny is applied, challenge made, questions asked. They require consideration, time and attention. The papers need careful reading, often between the lines. When challenged at a June 2023 Business Select Committee about the directors’ bonuses (specifically, the misleading statements made about these being approved by the judge heading the public inquiry) the Post Office’s current Chair, Henry Staunton, replied: “No Board member is going to read every page of a 200 page report” (see the answer to question 55, page 15). 

No, chum: that’s precisely what they are paid to do. If directors want the money and glory, they should do the work. It is precisely this culture of entitlement – what Matthew Syed calls a “cultural pathology” in his blistering Sunday Times article – which allows bad behaviour to flourish, stops questions being asked, inhibits challenge or just basic curiosity, treats these jobs as comfortable, well-rewarded sinecures for a parade of part-timers, rather than necessary controls.

The Post Office’s senior independent director, Ben Tidswell, appointed three years ago, has just resigned. The government is looking for his replacement. It is a part-time post: 2 days a week at a salary of £40,000 p.a. Given the Post Office’s current challenges, how can a director – even one without day-to-day operational responsibilities – really fulfil properly his or her corporate legal responsibilities? This approach seems to follow a pattern. After all, it was Mr Staunton’s predecessor, Tim Parker, Chair 2015 – 2022, who thought he need only spend one and a half days a week on this job. This was during the time when much of the most egregious behaviour for which Ms Vennells is now being blamed occurred. Perhaps he was too busy with one of his other jobs, Chair of HM Courts and Tribunals Service, part of the Ministry of Justice (“ensuring justice for everyone” its mission statement). How did that job go, Tim?

Let’s look at one step which was taken during Mr Parker’s Chairmanship. After the third “Common Issues” judgment in the Bates litigation, the Post Office sought to get Mr Justice Fraser to recuse himself. In making the application, the Post Office’s barrister, Lord Grabiner KC, said:

“This is regarded as an extremely serious application to be making. It was made at board level within the client and it also involved the need for me to be got up to speed from a standing start. And I am not the only judicial figure or barrister that has looked at this… It has also been looked at by another very senior person before the decision was taken to make this application.”

That “very senior person” turned out to be Lord Neuberger, former President of the Supreme Court. Would it be too cynical to wonder whether Tim Parker’s role as Chair of The Courts and Tribunals Service had anything to do with this?

That was then. The Williams Inquiry may get to the bottom of what went on. But now the CPS and the Post Office should think again about who they have on their Boards and why. As always, the question to be asked is not: “Is this legal?” But: “Is it wise?”

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A constitutional outrage? Or a resolution of sorts?

11 January 20240Comments

The announcement of a law to overturn the subpostmasters’ convictions has provoked some concern amongst m’learned friends, on constitutional grounds. Are these concerns valid? Why is the government in this position?

The Dilemma

If every convicted subpostmaster in the last 25 years applied to the Criminal Cases Review Commission (“CCRC“) to have their convictions reviewed and referred to the Court of Appeal, even if they started tomorrow, it would taken an inordinately long time to deal with them (even if the Post Office did not object, which it has been doing for some). Many subpostmasters would likely die before their cases are heard; their lives would still be blighted in the meanwhile. They would have to wait for the convictions to be quashed before getting compensation. Some may simply refuse to get involved with the justice system. Who can blame them, given their experiences thus far.

There are other questions too. Who pays the costs? What about those who pleaded guilty because they were bullied into it? What about those who have died? Or those who paid money they did not owe in order to avoid prosecution? Do they get the money extorted from them under false pretences repaid?

This matter has lasted a quarter of a century. It is unconscionable to drag it out still longer. Speed is essential if justice is to be done. And it is justice which is needed now – not endless legal arguments.

Could there be a mass appeal via the normal legal process? Possibly. But would it be any quicker? Where are the resources to do it?

Unprecedented?

The main concern has been the worry about setting a precedent: the executive and legislature should not interfere with the judicial process. If these convictions are overturned by Parliamentary fiat, what is to stop a future unscrupulous PM using a large Parliamentary majority to absolve friends rightly convicted? (That faint echo you hear is Owen Paterson, Boris Johnson and those MPs rushing to say that the Standards Committee’s findings could be ignored because, well, just because.) The boundaries between the executive, legislature and judiciary are important ones. It is not daft to worry about a rush to breach them. They exist for good reasons.

But.

The legal system

A touch of humility from the legal fraternity is needed. More than a touch, in fact. This miscarriage is in large part due to multiple failings over years by lawyers and the legal process, starting with the Law Commission (which recommended the computer law change – explained here and here), via investigators, in-house prosecutors, members of the external Bar, defence lawyers, judges, those supervising or reviewing or even noticing the activities of those bodies with statutory prosecution powers (was anyone doing this? A question for the Ministry of Justice, perhaps), the CPS (to the extent it was involved), the lawyers responsible for non-disclosure, those who failed to blow the whistle (in breach of their professional duties and those owed to the courts), those advising the Post Office’s Board on its corporate law obligations, those relating to prosecutions and civil litigation and those owed to the Williams Inquiry and ending with the judiciary which did nothing about a senior retired Law Lord advising on how to get rid of the judge hearing the Bates litigation for no reason other than the Post Office’s annoyance at not getting its own way.

The legal system does not come out of this story well, however much praise is now due to those lawyers who have worked tirelessly to expose the scandal and help its victims. It is, frankly, a bit much for it to ignore all this in the rush to preserve constitutional proprieties. Doing right is what is needed now, followed by extensive reflection on its own part in this abysmal affair.

How might this be done?

It is not correct to say that there is no Parliamentary interference with the judicial process. The Attorney-General has always had the power to discontinue a prosecution in the public interest – nolle prosequi – and, in exercising this power, is answerable to Parliament not the courts. It is true that this power is only exercised before a court judgement. After, the normal route is an appeal against conviction or, exceptionally, a pardon. But note one important fact about these options: in both, a crime has been committed. But it is decided that either the wrong person has been convicted or that, for reasons of public policy, even though they had committed it, the law was unjust (e.g. pardons of soldiers for cowardice in war-time or gay men for now lawful sexual behaviour). There was a crime though.

No prima facie case

Here, we cannot say this. This is not overturning convictions because the wrong people were convicted. But because there never was any crime. There never was any money missing. The alleged “missing” monies were figures plucked out of Horizon’s behind. If this had been known at the time, would there have been prosecutions? Could there properly have been any? Wouldn’t the A-G have issued a nolle prosequi order, if the prosecutions had not been halted by the Post Office? In effect, what is being proposed now is a retrospective nolle prosequi, a finding that the prosecutions were, as the Court of Appeal has already ruled, an affront to the conscience of the court. They should never have happened because there never were any crimes to be prosecuted (as some of the Post Office’s own documents revealed to the Williams Inquiry now show). As for those prosecuted on non-Horizon evidence, based on what the Inquiry has uncovered about the conduct of Post Office investigative/prosecuting staff, no reliance can be placed on any of their work.

Why this option?

For years the criminal justice system has been underfunded. Plenty have warned of the consequences; these have been dismissed as special pleading, alarmist or unimportant. The CCRC was seen as so unimportant that it has a part-time Chair with eight other jobs, including Head of the Judicial Appointments Commission (the CCRC’s conflicts of interest policy having been lost in the post, presumably). It is why, when the Andy Malkinson case – itself one of the most serious miscarriages of justice of recent times, involving as it does, the conduct and professionalism of the CCRC itself – hit the news last summer, we were treated to the spectacle of its Chair promoting her holiday home business in Montenegro.

We see the result of this under-resourcing now: an inability to follow normal processes in a timely way; unpalatable options.

Why the rush to act? Why – because of the endless delays and denials by government and its wholly owned entity, the Post Office, only finally shamed into action by a TV drama and the consequent public outrage.

Underinvestment, a lack of professionalism, denial and delays. There are some lessons in there for governments. And the legal world. Perhaps they might heed them this time. Perhaps.

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