This week at the Inquiry it was all lawyers. Putting aside Harry Bowyer (who I have not got to yet – but sounded like he had some mettle about him), Jarnail Singh (because, well.. because… just read this and get things our of your system if you watched it), and a couple of right conduits called Aujard and Flemington, I am going to talk about high street practitioner, Martin Smith. Senior Associate at Cartwright King (CK) at the time.
Actually, I am not going to write much myself.
I have been increasingly struck over recent days by the quality of the advocates appearing before the Inquiry.
We’ve all swooned over Jason Beer (I’ve taken to burnishing my I am also a Warwick Law Grad credentials in honour of him for Gawd’s sake) but the other members of Beer’s team, and core participants (the big three teams but also for Jenkins and the NFSP) have all stepped up especially in this phase.
In the second day of Smith in particular we have some really wonderful moments of advocates getting the story just so from the witness; who to his credit did not (as often as others) recede behind the I cannot recall mantra repeated so regularly earlier in the week.
So I am mainly going to quote from the transcripts in a series of posts with a theme each.
Today’s is professional competence. It is a theme close to my heart (I did years of research on it) but especially relevant to Mr Smith because after he left Cartwright King Smith became the COLP at Clarke Tinkler (Ding a ling!): the firm he, Bowyer and Clarke formed/joined when they left CK.
COLPs have a key role in solicitor firms: they oversee and ensure the legal practice’s compliance with all regulatory and legal obligations. So Smith should be, by now at least, hotter than the average solicitor on competence requirements, regulation, and professional ethics.
What did we learn?
First, we have the story of how Cartwright King decided to take on prosecution work. In the Year Mr Smith qualified, I was chairing the Young Solicitors’ Group and boy oh boy did this bring back memories of how our members sometimes described how firms developed the expertise of their lawyers:
my whole career I’d spent dealing with defence work. I had then started dealing with prosecution cases on an agency basis, appearing in court for particular hearings and then reporting back. I then — this was effectively a new chapter of work, actually, dealing with prosecution cases and advising in relation to them and, quite frankly, I was grateful for any guidance that I could get internally within Cartwright King, and this was Mr Clarke’s advice. So that’s what he did and I went with him to the hearing.
Q. You had worked for Cartwright King for six years by this stage?
A. Yes.
Q. Was the training so inadequate that you had to rely on Mr Clarke in this respect?
A. Well, I was quite — well, there had been no training in terms of prosecution work at all. No training at all that, for example, a CPS lawyer might get internally at the Crown Prosecution Service. We’d been on no courses
One thing Mr Smith wasn’t aware of, even given his years of experience as a defence solicitor, was a prosecutor’s post-conviction duty of disclosure. He says, “I didn’t see it as a concern. I regard it as professional development.”
He also wasn’t aware of the requirements as to the instruction of expert witnesses:
Mr Blake: Were you aware, throughout the period that we have discussed, of the various requirements that are legally in place with regard to the instruction of expert witnesses?
Martin Smith: I have to accept that I wasn’t. Like I said yesterday, we had essentially been a defence firm of solicitors. We had presented cases in court on an agency basis and, as I pointed out yesterday, there is a world of difference between doing that and actually progressing prosecution files. Quite why Cartwright King thought it was appropriate to take on this prosecution work, I really, with hindsight, have no idea because we certainly didn’t have the training for it, and I was unaware of the duties on a prosecutor in relation to the instruction of an expert witness.
Mr Blake: By 2012, you had been qualified for 16 years?
Martin Smith: Yes.
Mr Blake: Do you think it was unusual that you weren’t aware of those kinds of duties?
Martin Smith: I was simply just not aware of the duties on a prosecutor to actually make sure that an expert witness was fully informed of their duties, et cetera. It was clear from when Mr Clarke wrote his advice that we had been seeking reports from Mr Jenkins in a way which perhaps was not – well, undoubtedly was not compliant.
Mr Smith’s evidence was suggestive of Jarnail Singh not knowing about this requirement either (I know, imagine), nor did the criminal law team in Royal Mail Group seem to know when they dealt with matters pre-2012, was his impression.
When Sam Stein KC came to his examination of Mr Smith, we had this beauty:
At the time whereby you, working for Cartwright King, were engaged on the prosecution of matters for the Post Office, do you agree you were following the Code of Practice for prosecution advocates that was issued by the CPS?
Martin Smith: I wouldn’t agree that, no.
Mr Stein: You wouldn’t. What Code of Practice in relation to your prosecution work do you think you were following?
Martin Smith: I’m not confident that we had the necessary skills and expertise to be able to follow codes. I’m afraid, as I said earlier, we are essentially a defence firm of solicitors and it’s beyond me as to why the firm decided to take on prosecution work, knowing that we hadn’t been specifically trained in prosecution work, and so, whilst there may invariably be Codes of Practice, it’s – and other requirements, I think its difficult to follow them if you’re not aware of them.
I’ve bolded those words because that’s the job buddy: having the skills and expertise to, you know, follow codes. Perhaps, to be kinder, he mispoke, under pressure. To be fair he also looks like my long-suffering cello teacher; perhaps he was talking about me and scales.
He also said he didn’t consider the ethical standards that should apply to him as a prosecutor when he started prosecuting; he didn’t look them up; and that whilst he tried to act in accordance with the law and do things properly he either didn’t give “a huge amount of thought”, or didn’t consider at all, the idea that he was a minister of justice.
Books? Codes?? Ideas??? Why not just pick up your instrument and just jam, right? I know, for the reasons given above, that this is what passed (passes?) for professional development in some firms.
He is taken to a covert recording of a call with Gareth Jenkins because they had become suspicious and concerned about the evidence he had previously given on cases (having been tipped off that Second Sight had learned of bugs).
Believing as he did that (1) Mr Jenkins deliberately failed to disclose material he was aware of, that (2) he was in plain breach of his duties as an expert, and (3) with his credibility as an expert being fatally undermined, Smith agrees that this would potentially be perjury or perverting the course of justice. He has no answer as to why they didn’t call the police or even consider it.
He’s not obliged to call the police by the way but it probably is a matter which merited raising with his client. He says:
“I just don’t think that is anything we thought of.”
Stein takes him to a topic which solicitors (actually we all) are habitually hopeless on. Conflicts of interest. Did he consider he would be a witness in relation to what happened as regards Mr Jenkins, asks Stein. No, he says, but he accepts that now. Did he think it might not be appropriate for them to continue acting on behalf of the Post Office in relation to these matters, “I didn’t think of it in that way at the time”, he concedes.
Now? He is asked.
He says he understands the point rather than he agrees with it,
“because the fact that we become aware of this information, we mention it to our client and we are then assisting our client to move on in terms of looking at cases, reviewing files and looking for a new expert.” (160)
Take it from me; that is not correct. He is conflicted and he should have known it and the firms should have withdrawn.
Then we hear, in one of several absolutely jaw-dropping moments, that Singh tells Smith in an evening call that Cartwright King are going to be blamed for the advice to shred.
At this stage the conflict klaxon should be honking like that scene in Silkwood when Meryl Streep knows she has had it.
To help us with Mr Smith’s view Sam Stein takes him to Simon Clarke’s famous advice on shredding. Clarke was a barrister in Cartwright King who Smith paints as the lead on almost any matter of any substance or controversy in the whole of his evidence.
In that advice Clarke warns the Post Office that they risk perverting the course of justice if they don’t deal with disclosure appropriately and if they have shredded documents. The Court of Appeal praised his professional uprightness in Hamilton.
So here goes:
Mr Stein: Yes, the shredding advice does not record that there was also a comment made to Mr Singh and reported to you that what was going to happen was that Cartwright King were going to be blamed for destroying documents. I read from your statement, paragraph 45, page 12:
“My recollection at the present time is that Mr Singh alleged that John Scott had indicated an intention to shred the minutes and to explain, if asked, that they had been destroyed on the advice of Cartwright King.”
You repeat that in relation to the same conversation at paragraph 52, page 14. Now, the shredding advice does not record the fact that, essentially, Mr Scott was apparently willing to blame Cartwright King for shredding of evidential material.
Martin Smith: Mm.
Mr Stein: Why does it not record that?
Martin Smith: I don’t know.
Mr Stein: Is it not a serious accusation –
Martin Smith: It is, yes.
Mr Stein: – and a serious suggestion to be made in relation to a firm of solicitors?
Martin Smith: Yes.
Mr Stein: Did you tell the partners of the firm of Cartwright King?
Martin Smith: I would have reported it to Mr Cash, undoubtedly, who was the partner in charge of the Derby office. I can’t recall precisely whether I spoke to the other partners.
Mr Stein: Well, what was Mr Cash’s reaction? Was he delighted?
Martin Smith: I don’t think anyone was particularly delighted about that suggestion.
Mr Stein: By this point in July 2013, do you agree you and the firm of Cartwright King were hopelessly conflicted in relation to your dealings with Post Office?
Martin Smith: I don’t think that crossed our minds.
Mr Stein: Did you take any advice on that?
Martin Smith: I just simply reported what had happened to Mr Clarke and that was it, really.
That was it. The conflict klaxon never honked. Phew. Or as Smith himself said, not long afterwards, when Cartwright King advised Post Office not to disclose critical evidence to Seema Misra, “as one complex matter ends, another starts.”
