An intriguing and concerning document came to light in this week’s Inquiry. Jason Beer KC described it as a document from 2020, “before the Court of Appeal Criminal Division gave its judgment and that it was prepared by Peters & Peters inviting the Post Office to essentially report lawyers, including [Rob Wilson who he was examining], to the Solicitors Regulation Authority. You can read the document here. He quotes from it as follows:
Counsel has advised that the conduct of Jarnail Singh, Rob Wilson and Juliet McFarlane, three senior lawyers in the [Post Office/Royal Mail Group’s] Criminal Law Team between 1999 and 2013 (collectively ‘the Three Lawyers’) is capable of amounting to a serious breach of the [Solicitors Regulation Authority’s] regulatory arrangements, having regard to the nature and number of cases referred for appeal and the issues identified through a review of material in the [Post-Conviction Disclosure Exercise] and Project Brisbane
Counsel has advised that material identified in the course of [those two exercises I’ve just mentioned] identifies potential misconduct (whether by individual instance or cumulatively) is capable of amounting to a serious breach. In particular:
a. Inadequate investigation, including a failure to pursue all reasonable lines of inquiry whether they pointed towards or away from the guilt of the defendant and to establish that an actual financial loss had occurred in theft cases;
b. Material non-disclosure, in particular about the reliability of Horizon, in breach of CPIA duties;
c. Inadequate, negligent or improper decision-making in relation to charging offences and determining whether to drop charges or accept lesser/partial ones, for example:
i. Misunderstanding or misapplying the Full Code Test;
ii. Misunderstanding or misapplying the burden of proof by requiring defendants to prove they were not responsible for the loss suggested by Horizon rather than by proving that there was a loss and that the [subpostmaster] must have been responsible for it;
iii. Attaching improper weight in decision-making to the financial/commercial interests of [the Post Office], particularly in terms of using criminal prosecution as a means of recovering losses and/or bringing charges as a means of pressuring [subpostmasters] to make good losses that they were not necessarily liable for …
iv. Failure, in false accounting cases, to have any regard to the cause of the underlying shortfall that was being covered up by the SPM;
v. Adding theft charges in circumstances where the elements of the offence were not made out and/or potentially with a view to pressuring defendants to plead guilty to lesser charges (in particular, false accounting);
vi. Making the acceptance of pleas conditional on the defendant not making any explicit criticism of the Horizon system.
Peters & Peters advice is directed to explaining why the lawyers should be reported; whether the PO should report them to the SRA; but also indicates they are minded to report the three lawyers named.
Under the Solicitors Code of Conduct they were required to report matters they reasonably believed were capable of amounting to serious professional misconduct.
One of the things that is interesting about this is the timing. It suggests that the Post Office and its legal team were aware of significant problems in the conduct of three senior lawyers across what this advice seems to suggest would be from 1999 onwards: the entire time span of the (so-called) Horizon prosecutions.
We do not know the precise date of this advice, but it predates the directions hearing and the hearing in December 2020. The advice says, “P[eters] &P[eters] is of the view that notification is required and currently intends to make a report in advance of the directions hearing on 18 November 2020.”
At the December hearing the Post Office sought to argue that the Court of Appeal should not consider Ground 2 of the proposed appeals: the ‘affront to justice’ elements of the case. Had they succeeded it is possible the Clarke advice would never have become public, the Inquiry would not have been seized of many of the issues it is seized of, and compensation arrangements might be significantly less extensive than they are now.
A good deal of the advice seems concerned with managing the disclosure of legally professional privileged material being disclosed. And whether POL should report in addition to P&P (it is reasonably clear but not stated explicitly that solicitors in PO are aware of the facts P&P also ought to report or ride on the coattails of a report by the Post Office). The suggestion was that Herbert Smith Freehills would ride on the coattails of the Peters and Peters referral.
Of interest to the current debate about PO’s continuing failure to fully compensate public interest cases is the advice that a downside of reporting included, “A concession of misconduct or bad faith may have implications for civil liability. P&P will mitigate this risk by making it clear that the report does not amount to any concession (and by reference to the test of “capable of amounting to serious breach”, which properly reflects the basis for the report).”
I don’t criticise the lawyers for this advice, but it hints at the concern here being partly about saving money rather than doing the right thing.
As well as the extended time period, serious misconduct is described as having happened “in many of the CACD cases….”. It was endemic.
Factors identified in SRA guidance on what constitutes serious misconduct include:
“ a. Allegations of trust, dishonesty, lack of integrity or criminal behaviour …
b. Multiple issues relating to errors of law or professional judgement …[rather] than isolated incidents;
c.….where a firm or individual knowingly acts outside their competence or fails to take reasonable steps to update their knowledge and skills or those of their employees;
d. A deliberate or reckless disregard for professional obligations is viewed more seriously.
And
“…a. The impact of harm (or risk of harm) upon any victim – e.g. an act resulting in an unfair conviction and consequent sentence; b. More senior lawyers (especially those with management or supervisory roles) are expected to demonstrate higher levels of insight, knowledge and judgement.”
Concerns about historic prosecution cases appear to be confined to the three lawyers (“There is no evidence at present to suggest that a report should be made in relation to other lawyers involved in the historic prosecution cases.”) There is no consideration in this document of lawyer involvement in the review of prosecutions in 2013 or broader matters such as the handling of the Bates litigation. I do not know if consideration was given to those things. It certainly should have been (although not probably by P&P).
One of the things that is interesting about this is the timing. That the Post Office and its legal team were aware of significant, potential problems in the conduct of three senior lawyers across what seems to be the entire time-span of the ‘Horizon’ cases, casts a significant shadow over the Post Office’s decision to resist the idea that the Court of Appeal should hear Ground 2 in November. It seems rather strange to do so given they have been advised their own lawyers may have committed serious professional misconduct across many years and cases.
Perhaps we could feel better about that approach had they disclosed the fact of the report and the matters underlying it. I do not know if they did or not, but nothing so far suggests to me they disclosed the report. There are reasons to think such information would feature prominently in the Hamilton hearings for instance.
Peters and Peters, whose advice seems professional and sensible, indicating they plan to report the matter before the November hearing, might indicate some tensions within the team as to how to take the case forward (although it may simply be a coincidence; they were obliged to report promptly). I am wondering if they were keen to ensure that should decisions about the case ever come under scrutiny, they (and the Post Office if they followed their advice) could say, well, we reported the matters properly to the regulator. Here I speculate.
A second interesting thing is how the advice sits with how the main Hamilton case was put. Ground 2 was conceded in some cases but resisted for most on the basis that each case needed to be considered on its merits. One argument made was that early cases (in particular) were less tainted with prosecutorial and expert witness problems than others. This note suggests that some prosecutorial misconduct went way back. That’s not the end of the matter, but it may raise important questions about the way the appeals were run. Similar concerns might be raised about the way the questions of commercial influence on charging and plea interacted with powers of recovery.
The third thing is, of course, the SRA received an unusual, and one would expect rather carefully argued, report of potential misconduct in 2020. I have checked with them, and they did indeed receive a report; they describe this as having occurred in two stages towards the end of 2020 and a further one at the start of 2021.
I know a lot of those affected by or watching the scandal unfold are very critical of the SRA not having acted on the problems we are seeing unfold in the inquiry. The SRA are inhibited by law in what they are permitted to say about ongoing investigations (a problem which would benefit from reform because it can bring the system into disrepute and limit the ways in which the SRA can send messages about professional misconduct). They have a longstanding statement up on the website about the Scandal: https://www.sra.org.uk/sra/news/statement-post-office-horizon-scandal/
I think it would be difficult for them to act before the Inquiry finishes evidence collection and one could see why they would want to await Sir Wyn’s report. They will need to hit the ground running shortly afterwards, and Peter and Peter’s note indicates why we can and should expect significant and robust action. Those reasons have been amplified many times by the evidence we have seen in recent weeks to the Inquiry. I won’t rehearse it all here, but if I can sum it up with three words, we’ve seen how incentives (the desire to recover money) and incompetence (almost everywhere) drove impropriety (consciously, subconsciously, semi-consciously or otherwise).
Given how obviously terrible it all looks now, and accepting that we have hindsight bias to contend with, we turn to 2024 when we get to hear how the big guns, legal and otherwise, could say there was no evidence or miscarriages of justice (in 2013) or that a review of prosecutions was fundamentally sound. And what they thought when they realised that three of the senior lawyers they had in some ways overseen had to be reported to the regulator for behaviour capable of being seen as serious professional misconduct.
What they thought given that behaviour may fairly be described as endemic. And given that on the Inquiry’s evidence so far, those three Is seem to have been written through the Post Office like words through a stick of rock.
