The inquiry into the Post Office scandal has gripped the nation, uncovering industrial-scale injustice, incompetence and cynicism. Both in-house and private practice lawyers have played pivotal roles in the saga. Evidence suggests improper prosecutions, allegedly overly aggressive litigation, the potential misleading of courts and parliament, and the burying of bad news.
Journalists were threatened and witnesses asked to sign nondisclosure agreements. And from next month the inquiry will hear from senior lawyers and executives in what many expect will be efforts to pass the buck.
That so much can go so badly wrong over such a long period tells us a great deal. Isolated errors of judgment are one thing, but regularly making the wrong calls, while evidence mounted, is quite another. The Post Office cases suggest the culture of law and business can eat justice for lunch.
For example, the civil justice system’s “overriding principle” is that courts should try to put parties “on an equal footing”. Aggressive litigation tactics obliterated that. The case of one high-profile former postmaster, Lee Castleton, is instructive – he was ruined by the litigation in what became a legal blueprint for more than a decade of contractual belligerence, which was belatedly found to be unfair and enforced abusively.
In the landmark High Court ruling in 2019, Mr Justice Fraser had the temerity to call the Post Office out. As a result it tried to get him kicked off the case. It was ultimately criticised for egregious arguments, misleading and mismanaged evidence, and scorched earth tactics.
The quashing of convictions raises profound questions. Why were such unfair, potentially illegal prosecutions so rarely tested by the courts? What did defence lawyers do? Is the lady chief justice right to suggest judges bear no responsibility? Rather than suggest the courts have nothing to learn, in a speech yesterday Baroness Carr of Walton-on-the-Hill said, “We should not shy away from scrutiny.” She is right.
We should remember how close the appeal system came to failing. Lawyers bringing the key “public affront” argument in the case of Jo Hamilton and dozens of other postmasters faced hostility. They were vindicated by disclosure that was smoked out late in the day, which blew the doors off the Post Office’s damage limitation strategy.
That vindication could come so late and turn on fortune is a warning that the system is fragile. Some Post Office lawyers had known about the bombshell evidence for years. The Court of Appeal downplayed the conflict in the prosecutor’s commercial interests and praised Post Office disclosure. These are important misjudgements suggesting that a reluctant grasp of appalling vistas might remain in the court’s culture. Had matters rested there, injustice on a huge scale might have lain undiscovered.
Even so, the sorest of losers set up compensation schemes bringing cost, complexity, delay and sometimes glaring injustice. The entire saga has highlighted a legalistic, adversarial approach where the culture of some lawyers is to take any vaguely arguable point, “handle” any inconvenient fact, create any obstruction, steamroller any opponent, when clients are willing to pay for it.
In response regulators and courts wring their hands more than they wring necks. But a more fundamental problem lurks: what is it about the design, resourcing and culture of our legal institutions that let it happen so often and for so long?
This piece first appeared in the Times March 21, 2024. I was prompted to reblog it by this interview on Joshua Rozenberg’s blog where the LCJ appears to suggest making it easier to prosecute theft and similar crimes. Of the PO Scandal, she says, “Something went horribly wrong in terms of the disclosure processes and the prosecutions. But if you look at the judges and the courts, absolutely not.” This is a point to which I hope to return.
