Many thanks to all of you who pointed out the problem and to CUP sorting it out overnight.

R

Back in the Autumn of 2024, I gave the Hamlyn Lectures. This was academic lawyer nerd heaven. It involves turning those same lectures into a book. That book is now out in open access (free - thanks to the generosity of the Economic and Social Research Council, who fund the Post Office Project). You can find it here. Please note, the individual chapter links work but the whole book link does not!

As well as developing the lectures as chapters, in essence the last three chapters of the book, I wrote an extended account of the lawyer bits of the Post Office Scandal itself. I have tried to make the book accessible to anyone interested in the scandal, all practising lawyers, and academics and policy makers interested in trying to improve the way lawyers think and behave.

If you are not sure if it is for you, you can get a nice sense of some of the arguments in this great interview by Eduardo Reyes in the Law Society Gazette. Here is an overview of the book:

Bad lawyering has come under increasing focus though NDAs, SLAPPs, the banking crisis, and latterly the UK’s Post Office scandal, an extraordinary legal scandal spanning more than 20 years that ruined thousands of lives. This book examines the commercial, cultural, legal, and psychological drivers of ethical failure weaving them together with case studies in a compelling account of what is wrong with lawyers’ ethics. Rather than concentrating on a few bad apples, it shows how deep-seated traditions, psychological frailties, the complacency and aggression of well-paid lawyers, and the pragmatism, cynicism, and hubris of organisations combines to pollute decision-making and weaken the rule of law. Be it through awful orthodoxies or legality illusions, it shows how a lawyer’s naturally uncomfortable relationship with truth and justice can become improper or even criminal.

One such thing that fell in my lap was a link to this clip. It is about what is really admirable in our world. When people with ruin in their lives stand up. I’ve been honoured to meet many such people connected with the Post Office Scandal.

It’s nice too that this is a wonderful piece of lawyering and judgecraft that brings the point home, but as you will see if you watch it, it is most definitely not about that. It’s about someone other than us...

It’s from the Paul Quinn sentencing hearing.

Recent revelations around Project Brisbane (and, let me be frank, questions around Capture appeals) have me thinking again about conflicts of interest and the weakening of independence that arises in long-term lawyer-client relationships. Here’s a brief summary of some of the actual or potential conflicts of interest that have been exposed in the Post Office Scandal that especially relate to criminal matters.

In March 2010, seven or eight months before the trial of Seema Misra, Rob Wilson (when heading up Horizon prosecutions for PO whilst in the Royal Mail Group) resisted the notion of an independent review into Horizon as “disclosable as undermining evidence, evidence of a lack of confidence, and threatening adverse publicity and massive difficulties for the Post Office as well as being “detrimental to the reputation of my team.” His evidence to the Inquiry revealed how detrimental the reputation of his team ought to have been.

Cartwright King, on discovering that Gareth Jenkins had told Second Sight of bugs he had not disclosed in evidence on criminal cases, including some they had participated in, decided to embark on a flawed review of criminal prosecutions (too narrow a time frame, inflexible application of inappropriate tests, but most importantly, marking their own homework; they had prosecuted a good number of said cases).

POL’s in-house lawyers were identified by the PO Inquiry’s own corporate governance experts as having conflicts of interest, given that they had been managing prosecutions and were otherwise a bit hopeless. They sensed Cartwright King (CK) might be marking their own homework and asked lawyers at Bond Dickinson (as was) about it. They spotted the potential conflict of interest more clearly still (realising there was a risk CK had mishandled the cases in the first place). There is a strong argument that this solicitor-own-client conflict should have disqualified Cartwright King from any further involvement in the review of cases and that Bond Dickinson should have told POL that. Not only were they marking their own homework, but they were also doing so in a situation where it transpired they had contributed to the problem by massaging Jenkins’ expert evidence to suit the prosecution's case.

Bond Dickinson did not advise that. They advised handling Cartwright King (CK). I would say managing or finessing the conflict, rather than facing up to it.

Brian Altman QC (now KC) was brought in to review CKs review. That work had its own flaws, including adopting the view that Cartwright King’s position was a mere/potential commercial conflict only. It was the beginning of his long involvement in POL work that included telling them CKs review was fundamentally sound, advising on disclosure in Seema Misra’s case and whether, what I would describe as a plainly inappropriate letter from Cartwright King defending POL’s egregious charging and plea strategy was defensible.

A couple of months or so after Cartwright King’s review began, a meeting appears to have taken place between a solicitor at Cartwright King and a POL in-house lawyer, where CK’s conflict appears to have (or should have) become clear. There is no evidence that it was acted on. More senior lawyers deny knowledge of it.

Another way of looking at the conflicts of interest problem is to say that a long history of involvement in the work of the PO cases had a habit of trapping the lawyers into the past mistakes of themselves and others. They slowly but surely lose independence, and each error they make accelerates the process as they aim to be helpful to their clients.

After the second Bates trial, POL’s litigation sub-committee had raised doubts about continuing to rely on Brian Altman’s advice on disclosure in criminal cases. “Given his involvement in previous reviews of POL’s prosecutions” (according to Tom Cooper, former POL NED’s witness statement) they “questioned whether a new QC should be appointed instead.” Ben Foat (then POL’s GC) “said that POL had received legal advice that Brian Altman’s ability to provide objective and independent advice was not tainted.” We do not know for certain, but I think he probably means legal advice from POL’s current lawyers, some of whom were directly involved in the criminal work. “In addition, Foat is said to have claimed, “the Claimants and their solicitors knew about the appointment and were comfortable with it.” I can only really bring myself to splutter a teenage, yeah right at this point.

In any event, “The Sub-committee’s consideration of a replacement QC was deferred until the next Sub-committee meeting.”

We can get a sense of what was happening in the background from this record of how POL in-house lawyer Rodric Williams backed off when Altman challenged the view that he might have a conflict of interest:

When saw CWK’s review, I thought they were marking own homework. But didn’t challenge. Which is why BAQC brought on. Need direction from Board, need action, and legal review properly directed. Process can get moving. And if we need to bring someone new on, it will be akin to what BAQC did with CWK’s review (optic piece). Have a period of time to determine who that might be. Timing issue. Can challenge Board’s direction and then have to crack on with work that has to be done.

It’s alright, Brian, he seems to be saying, you were brought in to do an optics piece, and anyone we bring in to work alongside you will be doing the same. Perhaps he was joking, or they did not take it seriously, or perhaps he was not.

An “additional meeting of the Sub-committee took place to discuss POL’s appointment of a senior criminal law expert to lead the review of disclosure in criminal conviction cases and provide some strategic advice to the Board on the handling of this difficult issue. The question of Brian Altman’s potential conflict was raised again (Sub-committee Meeting Minutes 4 February 2020) [POL00103846]. I [Cooper] remember being told that at that point it was too late to make a change but it was agreed that Brian Altman would not lead the work on disclosure due to his previous involvement with POL.”

Zoe Johnson QC (now KC) and Sir David Calvert Smith were apparently appointed.

There remain doubts about POL’s approach to disclosure in, and conduct of the appeals. In the end, the Inquiry did not delve into these. When the two famous Clarke advices were not disclosed, in the Autumn of 2020, Brian Altman resisted the Court of Appeal hearing the more serious Ground 2, knowing, indeed saying, that success with his argument would mean the Clarke advice might never be published.

The advantage to all those POL and POL-related lawyers of not having Clarke published was significant. That advice becoming public was the moment when POL’s misdeeds as revealed in Bates were elevated beyond the merely serious into allegations of a potentially criminal cover-up. The conduct of lawyers at Womble Bond Dickinson (as it now is), Cartwright King, all the in-house lawyers who had worked on post office criminal matters and their review, and the General Counsel who had presided over these disasters, as well as Mr Altman himself, are all relevant to an investigation of those matters.

I mention all this because Nick Wallis has been reporting on Eleanor Shaikh’s freedom of information work, which has begun to reveal something of a mysterious Project Brisbane (apparently a review by POL’s post-Bates lawyers on compensation, Herbert Smith Freehills), which seems to have had at least one eye on problems with the lawyering POL received. Nick and Eleanor’s work has led them to the Minutes of a CCRC Meeting of the Board of Directors of Post Office Limited held on Thursday 05 November 2020, which covers the decision to resist Ground 2 in extensive detail. It was Grond 2 which led the Court of Appeal to declare an affront to justice in terms that drove the PO Inquiry towards statutory status. I quote the discussion in full:

The Board was asked to consider whether the Court of Appeal Criminal Division should hear arguments on wide-ranging, systemic second category abuse of process in the cases of Misra, Felstead and Skinner. These cases had been uncontested on the basis of first category abuse where POL had decided to concede on limb one grounds but not limb two.

Papers had been circulated in advance of the meeting and Brian Altman summarised the key points. Aria Grace Solicitors, representing the appellants, had made lengthy applications to the Court of Appeal citing that the court should hear wide-ranging, systemic arguments extending to limb two. This was despite the likelihood that the court would find the convictions in these cases unsafe on the grounds of limb one abuse. Aria Grace had served successive documents, seeking to revise their supporting arguments.

The Registrar of the Court of Appeal had asked POL to provide written submissions by 6th November 2020 on whether the court ought to proceed to consider a second, opposed, ground of appeal (i.e. limb two abuse) where the court was already satisfied that convictions were unsafe on one (uncontested) ground (i.e. limb one abuse).

Brian Altman explained that the question posed by the court amounted to a matter of procedure and the extent of the court’s remit. POL was not being asked to comment on the merits of any systemic limb two arguments. Rather, it was being asked to respond to the question; where convictions had been demonstrated to be unsafe (in these instances on the grounds of limb one abuse) should the court nonetheless continue to hear arguments on limb two which, if successful, would lead to exactly the same outcome. POL was required to express a view on the question asked by the court and could not remain neutral on procedure.

Brian Altman recalled for the Board the Criminal Procedure Rules which stipulated that the court must always give effect to the “overriding objective” to deal with cases “justly”. All parties were required to help the court to further the overriding objective. Dealing with a case justly included ensuring that it was dealt with efficiently, expeditiously and proportionately; that expenses were saved and that appropriate resources were allotted to the case, taking into account the need to allot resources to other cases. In regard to this latter point, the court would be cognisant of the needs of other appellants. Brian Altman observed that no other appellants, whose cases were uncontested, had sought to argue additional wide-ranging, systemic limb two grounds of appeal. They had all invited the court to quash the convictions on limb one grounds and, in four cases, on case-specific limb two grounds. Brian Altman reminded the Board that the sole question for the court to determine was whether a conviction was unsafe. This was the statutory test under the Criminal Appeal Act 1968. The court would not be interested in how unsafe a conviction might be and if the court were to decide that the three convictions were unsafe, on the grounds of limb one abuse, it could resolve not to hear arguments on limb two. Taking into consideration the overriding objective, Brian Altman submitted that it would not be an effective use of court time to expend resource listening to arguments, which, if successful, would lead to the same outcome. Brian Altman reasoned that in addition, there would be no public interest in the Court of Appeal hearing the arguments on wide-ranging, systemic (limb two) abuse when the appeals were unopposed on limb one grounds, and there were other forums in which these questions could be assessed, the Public Inquiry being an example. Brian Altman shared a quote from the Aria Grace appellants’ grounds of appeal, which was common to all of their submissions, “subject to the court’s decision on this appeal under the first category of abuse of process, there is a question as to whether the court should determine the appeal on the second category of abuse of process where not necessary for the purpose of quashing the appellant’s convictions.” This excerpt indicated that Aria Grace Solicitors had recognised that it was not necessary for limb two arguments to be progressed in order to have their clients’ convictions quashed under limb one.

Brian Altman observed that only the Aria Grace Solicitors had expressed an interest in pursuing these arguments. No other appellants, whose cases were uncontested, had sought to amplify nor argue additional grounds of appeal regarding wide-ranging, systemic second category abuse. In the event of the court agreeing to hear such arguments, however, they would be forced to participate, resulting in as many as 38 appellants making these arguments to the court.

The Chairman noted that Counsel’s advice on procedure was clear and asked whether there were any contrary arguments, or wider implications, which the Board ought to consider. The Chairman added that the Board was mindful of its duty to assist the court to ensure that cases were conducted in accordance with the overriding objective. In parallel, the Board was sensitive to public perception around POL’s response which might, in extremis, be distorted and perceived as an attempt to avoid accepting wider responsibility for the unsafe convictions, or to unfairly restrict examination. Brian Altman did not think so, particularly as the court had invited POL to respond on a point of procedure. The court, having had regard to its statutory objective, would look to agree a proportionate and common-sense approach towards managing the cases. Zoe Johnson concurred, emphasising that these were three unopposed cases where the outcome would not change, a critical factor in the rationale for POL’s proposed response to the court. Further, both the CCRC limb two reasons and the appellants’ limb two grounds of appeal were not case-specific but wide-ranging, systemic. In examining these grounds, the court would need to review a considerable amount of evidence which would be time-consuming and costly but lead to the same outcome. Zoe Johnson supplemented that the disclosure process would be ongoing, and should the court wish to explore the wide-ranging issues, it would have a vehicle to do so in the contested cases. Further, there remained opportunities for the arguments to be heard in other forums, including submissions to the Public Inquiry, or the High Court.

The Chairman invited questions from the Board. Zarin Patel asked what would happen if, upon completion of the disclosure exercise in February 2021, the Board should find that there were signs of systemic abuse. Brian Altman answered that it would be dependent on the Court of Appeal, however, the purpose of disclosure was to allow the appellants an opportunity to review and make their arguments. Brian Altman recalled that in each of the respondents’ notices POL had acknowledged that there was an ongoing process and that the Board was interested in anything which the process might reveal about systemic limb two abuse of process. To date, none of the appellants had directly addressed this in their grounds of appeal.

Lisa Harrington asked whether there was any insight on Aria Grace’s motives for pursuing the limb two arguments in the cases which were uncontested on limb one grounds. Brian Altman tendered that the appellants’ representatives may have been endeavouring to build a platform for the High Court and a malicious prosecution claim. Unlike Aria Grace Solicitors, the other firms were thought to be “keeping their powder dry’ and avoiding the Court of Appeal ruling out limb two abuse of process. It was sensed that there was some frustration within the firms representing the appellants that their approaches were not aligned. Aria Grace had limited experience of the criminal courts and were working as part of a team that included barrister Paul Marshall, a commercial and regulatory practitioner. The appellants’ team had approached the criminal proceedings in a characteristically commercial manner.

POL was under a duty of obligation to make a post-conviction disclosure (PCD) to all appellants, including those whose cases were opposed (and, in due course, potential future appellants) irrespective of the court’s decision. Tom Cooper asked how the PCD exercise related to the “Southwark Six” whose historical convictions were expected to be overturned in the near future. Tom Cooper sought clarification that if their convictions were overturned, the Southwark Six would be excluded from the PCD exercise. Responding, Brian Altman confirmed that their convictions had not yet been overturned and he was awaiting a response from Southwark Crown Court. Brian Altman advised that if they were to file a claim, their respective applications would need to be considered through the ordinary processes of civil disclosure.

The Board AGREED the following submissions which would be filed and served on behalf of POL:

(i) That the court should not consider a second ground of appeal in the circumstances for the following reasons:

- If, having received and applied the fresh evidence, i.e. the two High Court judgments, the court is satisfied a conviction is unsafe it must be quashed. Once the court is satisfied a conviction is unsafe, it has answered the sole question asked of it.

- It would be contrary to the overriding objective for the court, having decided that a conviction was unsafe on uncontested grounds, to proceed to consider further contested grounds of appeal because it would involve the court hearing a considerable amount of evidence which would be time-consuming and costly and would lead to the same outcome: i.e. the convictions are unsafe.

- No other appellants whose cases are uncontested currently seek to amplify or argue additional grounds of appeal regarding wide-ranging, systemic second category abuse. However, if the court did agree to hear such arguments they would be forced to join in, resulting in as many as 38 appellants making these arguments to the court.

- There is no public interest in the court making a ruling on wide-ranging, systemic second category abuse when the appeals are unopposed and there are other forums in which these questions may be properly assessed (e.g. in any malicious prosecution claim and/or the Government inquiry).

I am not going to analyse the positions taken line by line. In broad terms, most of the arguments taken for resisting Ground 2 are reasonable in general, in the abstract (they are supported by Zoe Johnson QC in broad terms too) but risk being seen as incredibly self-serving if one understands the history.

The arguments about the public interest and distortion in particular look rather interesting through the lens of history.

The Board were being advised from a particular viewpoint in that story, the viewpoint of someone heavily involved in crucial events for many years. One who now recognises he missed the failure to disclose evidence central to the case: that POL’s expert witness was tainted. One who said CK’s review was sound. One who did what he could to defend an indefensible letter. And so on.

Of course, they would argue (as Altman – and his instructing solicitor, Nick Vamos at Peters and Peters, did when he was challenged) that his knowledge of the case meant he was best placed to advise, or (if I have understood them rightly, incorrectly) that there should be no question of removing him absent a challenge from their opponents. One does not have a conflict of interest or lack sufficient independence simply by reason of a challenge. Proper concern from the Board was massaged away. Egos were soothed with talk of an optics job when that talk should have set alarm bells a-clanging.

Image by Keneeko from Pixabay

Good morning everyone — it’s a real pleasure to be here.

I am going to spend the next twenty minutes highlighting the central challenge posed by the Post Office Scandal. My title says “educational lessons” but what I really mean to do is pick up on an educational need.

The Legal Services Board recently asked the regulators to rethink their educational strategies on ethics– which may bring them back to degrees. The SRA is said to be looking at CPD. I believe law schools, traditionally overburdened by foundation subjects, and many other problems, have routinely ducked the need to see education on lawyering and professionalism as a central aspect of a liberal education in law regardless of whether students want to practice. but I am not going to spend time reheating that case.

What I want to do instead is share parts of our learning an ESRC research project with Rebecca Helm, Karen Nokes, Sally Day, Beth Growns, Emily Spearing, and Paul Gilbert. We have been poring over the history of the scandal and learned from the sub-postmasters themselves about how wronged they feel by law, by the legal system, and, in particular, by the Post Office and its lawyers.

We are also working with practitioners to understand their cognitive models for managing ethical tensions and will be reporting more over the coming year as our project draws to a close. The book of the Hamlyn lectures is coming out in June. Unusually, and thanks to the ESRC, it will immediately be open access. Please read it if you are at all interested and share it with your students.

As you will know, the central story of the Post Office is how it prosecuted around 1,000 sub-postmasters wrongfully. That central wrong comes with many cousins. It began with POL’s lawyers drafting grossly unfair contracts - a matter of routine in some business contexts – that set the belligerent framework against which prosecutions were brought without necessary evidence, and then conducted improperly; they then covered that up through a range of lawyer-led strategies for protecting the Post Office’s reputation (slanted reviews, attritional mediations, misleading litigation strategies) that rendered lawyers architects of or complicit in the abuse of the courts, and the misleading of opponent, judges, and Parliament.

The likely wrongdoing covers solicitors and barristers, in-house and in private practice, junior and senior. GCs and KCs. A former SCJ is involved in a situation pregnant with problems interestingly insulated from regulatory scrutiny.

Perhaps you have found ways to bring this into the classroom. I know of examples in contracts, corporate governance, public law, criminal justice, evidence, and of courses on lawyers and legal ethics. It can be used to explore doctrine, philosophy, psychology and skills; effective and ethical interviewing and professional identify formation, a particularly important and I hope promising way forward being taken forward at Leeds. Elizabeth Connaghan, at Reading, involved her students in a research-led drama based on the scandal. She raised £20,000 to commission a playwright to write GLITCH. It’s had excellent reviews.

What I think is particularly important is bringing the personal and the emotional reality of legal failure into the classroom. Doing that well is priceless. My own undergrad education was transformed by a clinic at Warwick that confronted me with the messy, emotional terrain of real cases — and the theory and evidence that showed how lawyers make mistakes, mistakes that are patterned and repeated. A kind of professional complacency and blindness that lurks inside the Professional Imaginarium of my title.

Let me explain it with an example… Another Warwick.

Warwick Tatford was a barrister in private practice responsible for prosecuting Seema Misra, sent to prison whilst ten weeks pregnant.

In his written statement to the PO Inquiry described himself as “proud of my role as a barrister in the criminal justice system.” He was he said “ pretty experienced” as a barrister. His handling of the expert witness Gareth Jenkins he said, “utterly transparent”. Jenkins was a Fujitsu employee; the starting point should have been that he lacked the necessary independence to be a witness. Tatford said he had “made considerable efforts to ensure that the witness did understand his duties”.

He could offer up no evidence beyond his own assertion that he had so advised. Indeed, the evidence suggested he encouraged Post Office to be more aggressive in the case than they needed to be. His aim appears to have been to make it easier to recover the money against her.

There was no documentary evidence he advised Jenkins of his obligations to be independent. There was evidence that he asked him to “rephrase” or avoid “damaging concessions”, to say that theft was the “more likely”, and to reframe potential concessions as not being concessions at all. I would be fairly confident in predicting that the Inquiry will find the altering of expert evidence was serious and improper, as the expert evidence they called found.

As his written account of proud professionalism is questioned in oral evidence, he eventually concedes disclosure was ‘nowhere near’ satisfactory; advice given by his instructing solicitors was ‘risible’, and the overall approach was ‘disastrous’. It leads to one of more meaningful apologies given to the Inquiry. Being forced to think about it has “clarified my mind as to what happened”, he said he felt ashamed and

“when I said I felt ashamed, I do. I actually feel worse because it’s become quite clear in the way that the evidence is properly been put before me that there are many failings that I had ignored on my part and I perhaps created a rosier version in my memory that wasn’t really there. …I have changed my view. It’s taken me a long time. I suspect I was in denial for a long time, perhaps in a self-justificatory way, and I apologise for that.

Tatford does not concede full responsibility, but he does concede he assessed himself against flawed presumptions of professionalism that many lawyers before the Inquiry have often leant on: that they are ethical and competent and so would have done, did do, the right thing.

I spend a great deal of time wondering how much of this professional imaginary is what he (and others like him) believed or was part of his defensive reaction as a witness. In other words, have they duped themselves, or have they become so ritualised though bad habits, that they let themselves astray. Or how much of it is simply a pose of professionalism to put before the Inquiry. In truth, I think it is a bit of all these.

Throughout the Inquiry we can find evidence of this professional imaginary. Lord Grabiner KC concedes an opinion he gave that Mr Justice Fraser should be recused for bias in the Group Litigation was in fact shaped by an advocacy document written by colleagues themselves bruised by losing before Fraser. He claims nevertheless his view was independently arrived at. Anthony Robinson KC’s explanation for apparently misleading the court being met with an incredulous “Is that really what you’re saying?” from Jason Beer KC, senior counsel to the Inquiry. Brian Altman KC being roughed up by one of his fellow Silks for his own failures offers an irate, “I’m human, like the rest of us…. Probably including you and I make mistakes and we all make mistakes.” The Inquiry is long on lawyers conceding that they (or more often some other member of their team) made mistakes, chose their words poorly, took decisions they would not take now with the benefit of hindsight. Some confess they weren’t trained in the areas they were working in, simply mimicked documents produced by others, and so on.

Individually, the professional imaginary. I am competent, I am ethical, I am merely human, works sometimes, but systemically, used repeatedly, it wears very thin indeed. Not least because we know one of these lawyers was having his services sold to clients as being that of a steam roller who would let nothing stand in the way of victory and another sold as being able to hold clients in the palm of his hand and capable of turning a pile of refuse into something that looks great. Half-truths and legal bullying. This is what appears to be being bought and sold in the name of the rule of law. By some. At the apex of the profession.

How do we, as educators, resist this hagiography of hollowness?

My own approach has been to sensitise students and practising lawyers to their own fallibility — to the biases and gaps in competence that lawyers are no more immune to than anyone else.

Alongside that, I try to help them understand the processes of alignment and situational pressure that shape professional life from the vacation scheme onwards: the “be more commercial” mantra is part reasonable pragmatism, part ideological re-education away from legality and towards risk-taking.

How way practitioners interpret legal ethics can, and does, slide into serious misconduct. Client-first, zealous advocacy is at odds with the rules more often than practitioners appreciate. Lawyers really do not understand their own rules.

And how very important lawyerly management of facts is. How often arguments take the place of facts and slant agendas improperly.

As well as what happens in moments of crisis, particularly crises that threaten to expose past mistakes or reveal that a clever strategy is failing.

And yet they also need a sense of their own agency in the face of powerful pressures to do the expedient but ultimately wrong thing — to speak up, to give voice to values, whilst also recognising the very reasonable desire of young lawyers to succeed and be accepted in their careers. Voice must be nuanced not naïve. A point I really struggle to land in practice.

Whilst I do not think any of these aims can be fully achieved at any one stage and much depends on the professions, courts, and regulators themselves taking culture seriously, I do think we need to equip all law students with a degree of measured scepticism of professional claims to competence and to propriety. And I also think a law degree that does not contain proper education on lawyering misses a vastly important component of the law as a subject and a system.

Currently young lawyers enter legal practice incredibly suggestible to order the behaviours, good bad or ugly, they see in teams within which they work. They do not have the tools to grapple with the rapid acculturation. The cynical lessons too easily absorbed from an apparently sophisticated and very financially driven environment.

It is perhaps best illustrated by one last example from the Post Office Scandal. Amy Prime in consultation with her supervising partner drafts an email to deal with a set of documents that can be used to “show that Post Office was not taking issues with Horizon seriously.” The strategy involves the deliberate suppression of a document: the email says in terms “we’ll do what we can to avoid disclosure... in a way that looks legitimate. However, we are ultimately withholding a key document.” Subsequently she and Parsons seek to defend the strategy as badly phrased but legitimate.

How did Amy Prime come, so early in her career, come to draft such a cynical strategy. She suggests Parsons told her this was how to handle it and she followed his lead.* Kuhn’s fascinating study of US students entering a firm tells us something about this process of acculturation. Students who enter caring about being “very humanitarian” [and doing] “a lot of pro bono work” quickly cast such youthful adornments aside:

“you need to just kind of rethink, as an adult …anytime you go into something that’s not purely self-sacrificial, ‘oh, I’m going to better the world,’ you have these compromises you make. …. I don’t really see [them] as compromising my morals in the long term. I see it as pursuing something that I actually am somewhat talented at …

….I could enjoy doing something that maybe it’s not saving the world. And, actually, I think civil procedure is cool.”

Admiration for their own technical ability replaces a more fundamental sense of right and wrong and a life well lived.

Much of this problem, I suspect, derives from the culture of legal practice — about which legal educators can do relatively little. Those of us in critical scholarship think of ourselves good at alerting students to the wicked ways of the world. Basic preparation for the personal dimensions of professional integrity are another matter.

Students leave for practice with very little realistic knowledge of what awaits them. Career trajectories become gamified: get into the highest ranked firms, learn the rhetorical poses of being commercial, succeed on extrinsic rather than intrinsic motivation, learn to love your own technical ability and the ability to please the firm and your clients. Finding an educational answer to that problem is difficult. We should try and find a way.

There is something oddly poignant about “I think civil procedure is cool”. An appreciation of technical expertise, a mature accommodation with ‘real life’ perhaps but it also something quite small, almost empty. Perhaps civil procedure is cool. But somewhere between that and Amy Prime’s draft disclosure strategy, or Warwick Tatford’s apology, something went wrong. Our job, I think, is to at least name what it is and prepare students for it.

*A kind reader has dug out some of the statement Prime made to the Inquiry…

“6. As I will explain below, I was a very junior member of the team and this was my first experience of litigation of this type. I was learning all the time. It was a baptism of fire in the sense of the intensity of the work, scale of the litigation and the complexities of the case.

7. Given my very junior position I was not responsible for making any strategic decisions in the litigation and I did not formulate the strategy. I did take part in meetings where strategic decisions were discussed and made, but these were meetings involving Counsel and almost always under the supervision of Andrew Parsons (”Andy”).”

Andrew Tickell has an excellent blog pointing out a few things of importance and interest: the size of the problem with PO Prosecutions in Scotland; the ‘public prosecutor’ and its law of corroboration acted as - at best - an imperfect check on prosecution here - with the systems capacity to leverage guilty pleas out of innocent parties caught in the maw of the system; and, unlike in England, Horizon dependent prosecutions proceeded beyond 2013 to 2016, raising a good many questions about how and why that happened which demand a proper answer. Here is a key passage, although you can almost as easily read the entire and well-written piece yourself

As in England; While there are examples of cases where Scottish prosecutors knocked back cases sent to them that relied on Horizon evidence between 2013 and 2016, the numbers suggests that COPFS generally acted as a post box for Post Office allegations.

When the scandal crashed into mainstream public attention as a result of ITV’s Mr Bates Vs The Post Office drama in January 2024, there were some optimistic suggestions that the rates of prosecution in Scotland might be lower than the rest of the UK, suggesting that the involvement of COPFS had tempered, at least to some extent, the prosecuting zeal of its specialist reporting agency. The new data suggests this was a fool’s hope. Across the UK, more than 700 people were prosecuted for crimes of dishonesty prompted by Horizon shortfalls. If 71 postmasters were prosecuted in Scotland, that’s a tenth of the total UK estimate. Head for head, these numbers demonstrate that Scottish prosecutions went ahead at much the same rate as in the rest of the UK.

Did corroboration make an appreciable difference? In Scotland, you can only be convicted if the prosecution can point to two independent pieces of evidence that the crime was committed and it was you who committed it. This is, rightly in some contexts, invoked as an invaluable safeguard against miscarriage of justice, ensuring you cannot be convicted of a crime you did not do on the evidence of a single plausible but dishonest witness. But so far, the data and Scottish case studies suggest corroboration didn’t work as much of a safeguard at all for postmasters implicated after “computer says guilty”.

The image is by Manfred Richter from Pixabay

I wanted to encourage any claimants submitting such claims to get legal representation. Whilst I appreciate that many feel they can or should do this themselves, our experience suggests that representation can improve the quality of claims submitted and may lead to better compensation payments for you.

Lawyers are funded under government schemes, so you do not have to pay, and are listed for the HCRS (here), Capture (here), and HSSA (here).

Our second working paper based on in-depth interviews with those affected by the Post Office (PO) Scandal is published today.

Accessing Injustice? Experiences of representation and the criminal justice system during the Post Office Scandal. It explores a subject which so far has not been considered in-depth in the context of the scandal. I set out here the executive summary but encourage anyone interested to read the full report. It raises issues for the professions, the courts and the government (as guardians of the criminal justice system and funders of legal aid), and other related bodies, like the Sentencing Council. We hear a lot about efficiency and backlogs. We hear very little about the quality of the system. What we do hear tends to the political and rhetorical.

Whilst there has been extensive consideration of the conduct of Post Office Limited (POL), Fujitsu, government and other associates of those three (most notably lawyers for POL), there has been very little, if anything, written about experiences of the criminal justice system more generally and about defence representation in particular.

Our report considers legal representation of subpostmasters and mistresses (SPMs), particularly in the context of experiences of POL investigations through audit and interviews. It then looks at when and how lawyers were instructed. It provides rare insight into how SPM’s understanding of their innocence and expectations of fair treatment inhibited a belief that representation was needed and explores the implications of this.

The report discusses how choice of representation was constrained and haphazard and how funding (be it private or legal aid funding) complicated an already difficult process.

SPM’s perceptions of criminal defence lawyers and the work that they did for them were underpinned by a sense that the egregious conduct of POL, and the operation of the criminal justice system and of legal aid, meant they were at a significant disadvantage.

A range of views on criminal defence lawyers were expressed. Although respondents almost uniformly ended up with adverse outcomes, views ranged from the positive to the negative. Overall, concerns about poor communication and a lack of proactive defence predominated. SPMs came to see that the legal system’s norms undermined protections, and there was a common sense of futility given POL’s position, power, and conduct.

Accounts of advice on guilty pleas suggested there was inadequate counselling on the impact and meaning of such pleas, and advice treated guilty pleas as, or close to, inevitable, regardless of protestations of innocence.

Whilst concerns about their lawyers were common, they were often seen as outgunned, out of their depth, and/or giving the ‘best’ advice they could in the circumstances. Often, the risk of imprisonment and its ramifications was enough to persuade the innocent that a plea was in their interests. On the other hand, some SPMs questioned that advice, and others were dismayed that their claims of innocence were not investigated or taken seriously. The general approach of defence lawyers towards eliciting a plea as described by SPMs here is inconsistent with the professional view on how plea decisions ought to be taken.

As ever, we are grateful to everyone involved in the production of this work, especially the victims of the Scandal. The time they spent talking to us was invaluable. It is also a good time to acknowledge, with grateful thanks, that the project is funded by the Economic and Social Research Council.

45. Fairness before the law is one of the five key elements that we have identified as forming part of the rule of law. It requires that everyone, regardless of wealth or status, is granted the benefit of their legal rights, is responsible for adhering to their legal obligations, and is held to account for breaching them.95 Any difference in the application of the law is for legitimate reasons only and based on objective differences.96 Shameem Ahmad, CEO of the Public Law Project, said that this was her “favourite component” of the rule of law, as it “brings to life the law for marginalised individuals and makes sure that the law is not only accurate but just”.97

46. This component of the rule of law is the one that, we heard, members of the public are most familiar with. Chris Nelson emphasised that the British public “have a sense of fairness”, which, if “they believe it has been undermined, 93 Q 15 (Jeff King) 94 Ibid. 95 Q 54 (Shameem Ahmad), written evidence from Leeds Law School (ROL0063), Sir Jeffrey Jowell KCMG KC (ROL0099), CILEX (ROL0013), the Faculty of Advocates (ROL0012), and Lord Stewart of Dirleton KC (ROL0096) 96 Q 54 (Shameem Ahmad), written evidence from Leeds Law School (ROL0063) 97 Q 54 (Shameem Ahmad) 18 The rule of law: holding the line against tyranny and anarchy they will be outraged”.98 And in their written evidence, JUSTICE told us that: “there is a strong public sentiment about the rule of law, particularly when it comes to perceptions of fairness and justice. Public reactions to high-profile instances, such as Horizon/Post Office Workers scandal, Partygate, the Hillsborough disaster, and the Grenfell Tower tragedy, demonstrate a deep-rooted belief in the importance of accountability and fairness. In each case, the public’s demand for justice and the proper application of the law reflected a broader understanding of the rule of law as an essential mechanism to ensure that no one is above the law, regardless of their position or status”.99 47. Fairness before the law is a fundamental component of the rule of law, but equally as important for the ongoing existence of a strong rule of law culture is the perception that everyone is to be treated fairly by the law.

Lawyers ethics comes in for some attention (para 128 onwards) based on our work and the LSB’s ongoing strategic emphasis.

And, later when coming to its recommendations

The core values that are central to our rule of law culture are those of equality, fairness and justice. If these values are not present (or are perceived not to be present) in our society, then the rule of law culture is liable to be degraded and to break down. Therefore, for people to trust that the rule of law is working, they need to feel that everyone, including public figures, is seeking to act within the law, and that those who do not will face the appropriate consequences. (Paragraph 49) 10. Confidence in the rule of law is challenged by perceptions of disrespect for the law, particularly when this is seen within those institutions that play a role in upholding the rule of law, such as Government, Parliament, the courts, and law enforcement. (Paragraph 50) 11. It is vital for the maintenance of a rule of law culture that everyone takes personal responsibility to act lawfully, and that they are held to account if they do break the law. Prominent examples of people flouting the law without facing any consequences damage belief in the rule of law and, in turn, risk the breakdown of ordered society. The increasing prominence of petty crime evident in recent years is, therefore, an insidious threat to the rule of law. (Paragraph 56)

One point they emphasise in that is the need for law-breakers, particularly more powerful law-breakers, to be held accountable. A reminder, where none is needed of course, that the outcome of the Inquiry is awaited (with predictions for a February to September reporting date being made - I have no insight on that myself) and the response of the police and regulators too.

Tomorrow we will publish a fresh report on other aspects of the problems posed by the PO Scandal that also raise rule of law and accountability questions.

Corporate governance standards in the UK have been shaped by scandal and failure. The Cadbury Report was written in the shadow of BCCI and Maxwell, and the banking crisis influenced a later version of the Financial Reporting Council’s (FRC) UK Corporate Governance Code. Sir Wyn Williams is due to publish the Post Office Inquiry’s final report shortly, and it seems likely that, as before, this will be a catalyst for changes in UK corporate governance standards.

This article does not seek to pre-empt the report’s recommendations. Instead, it uses evidence presented in the inquiry to explore the role of the Senior Independent Director (SID) in a wider sense. A government owned entity, such as the Post Office, is different to a listed company, but there are important parallels.

The SID’s role has remained remarkably constant in the 20 years since the Higgs Review. It is focused on the internal workings of the board and the relationship with shareholders.

Should there be a reassessment of the SID’s responsibility for corporate governance standards generally, including as an interface with senior executives?

The best SIDs already take a lead role in ensuring high standards of governance and probity and act as intermediaries with senior management. A handful of FTSE100 companies emphasise those aspects of the role. However, they are the exception.

Messaging and empowerment are important and, as boards and regulators reflect on the Post Office scandal, it would be an opportune time to re-assess the SID’s responsibilities under the UK Corporate Governance Code.

Soundbites from the Post Office Inquiry

The Post Office Inquiry addressed many issues, from the personal distress suffered by sub postmasters to the advice given by leading lawyers. That deluge of evidence contained the following, seemingly uncontroversial, statements.

The first comes from Neil McCausland, Post Office SID from 2011-2016. In explaining his role, he commented: ‘In my role as the Senior independent Director, I was a sounding board for the Chair, Alice Perkins and an intermediary for the other Non Executive Directors (NEDs). I was also a conduit for the shareholders in accessing either the Chair or Executive team.’

In a heavily abbreviated form, this reflects much of the description set out in the FRC’s Corporate Governance Code Guidance.

The second is an observation from the inquiry’s governance expert, Professor Dame Sandra Dawson, about the role of the General Counsel (GC): ‘Effective governance […] depends on a strong relationship between the Chair and the GC, based on mutual trust, respect and capability.’

The juxtaposition between the statements is revealing. Professor Dawson emphasised the significance of the relationship between the Chair and GC as a pillar of governance and went on to describe some of the signs that it had broken down at a key time in the Post Office chronology. Meanwhile, McCausland’s statement gave no indication that, as SID, he had any wider responsibility for corporate governance, including towards the GC in a situation where the relationship with the Chair was clearly failing.

It would be easy to dismiss the disconnect between these statements as a symptom of the wider governance problems at the Post Office, but that would be to ignore an important question: should a SID’s formal governance responsibilities be broader than those defined by the FRC today?

What’s the Problem?

The Chair plays a key role in shaping the culture of the board and that includes fostering relationships and open communication between non-executive directors and the executive team. Ideally, a GC will have an effective relationship with both the Chair and the CEO and can leverage that to provide quality advice to the board in the most challenging situations. A high calibre GC will attend the board routinely, contribute on a range of legal, risk and reputational issues and develop a strong relationship with the non-executive directors.

If there is a misalignment with the CEO, a GC’s relationship with the Chair assumes elevated importance. As shown by the Post Office, there can be many reasons for that: a CEO’s desire to present an overly positive picture to the board, an insufficient understanding of legal issues, or even doubts about the quality of the legal advice itself. These situations are rare but, ultimately, a GC needs to satisfy his or her professional duty to the company (or the wider public interest) and needs to be prepared to escalate to the Chair even if that serves to weaken the working relationship with the CEO.

Life becomes more complicated if the Chair fails to engage or takes a different view about the best approach to a material issue. In the Post Office scandal, the Chair and CEO infamously kept the GC outside the room as the board considered key legal issues associated with the Horizon system. There can be many good reasons for a difference of opinion, and in a respectful and well-functioning relationship it is likely that a satisfactory understanding will be reached. However, if this does not happen and there is no other way of resolving matters, a GC is left with few options: escalate to the wider board, shrug his or her shoulders and accept the difference of opinion, or, in extremis, resign.

None of these options are likely to be attractive, and they may represent a poor outcome from a corporate governance perspective. As things stand, the UK Corporate Governance Code provides little assistance.

How can the SID Help?

An experienced SID can play an influential role in managing such situations. The SID has a special position, relative to the Chair, and can act as a sounding board and intermediary between the key players. Independence, discretion, and emotional intelligence are fundamental, but these are traits expected of a good SID.

A SID can act as an important sense check, or safety valve, for difficult legal and governance issues, bringing another perspective and, possibly, acting as a discreet counterpoint to the Chair. Of course, any independent non-executive director can do that, but it is a task that naturally complements the SID’s existing responsibilities. It might be argued that this is all implied or obvious but, if so, it is strange that it was not a feature of the evidence in the Post Office Inquiry. There were opportunities for McCausland to support the GC, but this does not seem to have been viewed as part of the role.

Similarly, very few FTSE 100 corporate governance disclosures refer to any expectation that the SID might act in this way. Some, like Diageo and Pearson, talk about the need for the SID to uphold the ‘highest standards of integrity’ and there is a slightly wider recognition about the general governance aspects of the role. However, most follow the FRC’s narrow framework and focus on matters such as acting as a sounding board for the Chair, evaluation, succession or acting as an intermediary for other directors and shareholders.

Coca Cola EP appears to be the only FTSE 100 company that envisages that the SID, ‘will act as an interface for the independent non-executive directors (INEDs) between the INEDs and […] members of senior management.’ It is not surprising that most companies follow the FRC formulation. It is a safe approach and one that has been relatively stable. Moreover, it could be argued that making the SID’s role wider might dilute the Chair’s power or create overlapping accountabilities and this might be counterproductive.

However, perhaps now is the right moment for all stakeholders to reflect on whether the role of the SID needs to be re-assessed given that it can play such an influential role in the governance and culture of a board.

In doing that, it would be worth revisiting the Hampel Report (1998). This report recommended that there should be a senior independent director, regardless of whether the Chair/CEO was combined, explaining, ‘We see a need for a vigorously independent director.’ The Hampel report took an intentionally generalist approach and stated that, ‘There can, in particular, be occasions when there is a need to convey concerns to the board other than through the Chairman or CEO.’ This was not limited to shareholder concerns.

It was the later Higgs Review that focused the role more closely on shareholders and, arguably, diminished an important safeguard with that change of emphasis.

Conclusion

A recurring theme from the Post Office Inquiry was that the board and senior executives pursued an overly legalistic approach; that there was insufficient consideration of the bigger picture. The same could be said about the role of the SID today. It has become narrowly drawn and, arguably, misses the bigger picture.

The SID can play a crucial governance role at the board, including as an interface with the GC and other senior executives. The most effective SIDs do this already, but it is not part of their defined responsibilities. As UK corporate governance standards are considered after the Post Office scandal, it would be a good moment to re-assess that scope.

It is for others to say whether wider and more explicit responsibility for governance matters would have made any difference at the Post Office, but logic suggests that it would certainly have helped.

Chris Haynes is a lawyer and the founder and consultant of CMH Consulting Limited. He worked as General Counsel at International Airlines Group from 2011-22.

The question before us tonight is: Do we need an ethical reset?

I think we do, but before saying why, I want to acknowledge that many of you—experienced, dedicated lawyers and students—may feel scrutinised or defensive when the subject turns to ethical failures. We all feel the “flight or fight response” when criticism is levelled at our own kind. And we are very tempted indeed by the idea that ethics is about someone else, a bad apple, or – if you have watched one or two of the PO lawyers - a total idiot.

Indeed, being ethical is a bit like being a good driver, we all think we are above average, when sometimes we drive badly. Indeed, ethics is not only, or at least not mainly, about bad apples or total idiots. It is about all of us. The bad decisions we make in difficult situations. The mistakes we overcompensate for. The looking the other way or shaving of our integrity that leads to professional danger.

To keep going with the driving analogy: we speed a bit, we gamble on that amber, sometimes we might slip through a red, or take that bend recklessly.

That tendency to look the other way, and the shaving of integrity, is leading the profession closer and closer to political controversy. It is why Parliament’s Security Committee raised concerns that some lawyers’ work for Oligarchs threatens national security. It is why a BigLaw partner appeared before a select committee discussing whether he might have perverted the course of justice by using an NDA. It is why SLAPPs, regardless of how common you think they are, raise real ethics issues as well as structural issues that are not just the fault of individual firms or lawyers.

But before I get going, I should emphasise what kind of ethics I am talking about. Mainly I am interested in professional misconduct. There is a grey zone between misconduct and professional disrepute where the political debate is, and I think what I have to say is relevant to that too. Incompetence also plays an important part, often prefiguring ethical misconduct. But it is knowing or reckless wrongdoing that is my real concern.

I should address one more thing before we get going. What is a reset?

I don’t know.

I quite like its constructive ambiguity. I could argue for a reset that is modest, or for radical change, or for my preferred option of incremental but concerted change over time. I have thoughts about how to do that but not presecriptions.

Tonight I have been asked to focus on whether there is a problem not how to address it.

In offering my views, I am going to talk mainly about the Post office Scandal.

There is a temptation to dismiss the Post Office Scandal as an aberration, a one off. I think that is a mistake. It was hundreds of cases, over many years, across separate groups of lawyers, senior and junior, in-house and private practice, KCs and GCs. That spread across time, case-types, and different lawyers, marks it out as emblematic of a broader problem.

History kept repeating itself, however illustrious the lawyers.

That suggests it is about culture.

At the Scandal’s heart was routinely aggressive lawyering.

Aggressive lawyering involves choices that are arguably legal. Advice or actions that are permissible in the theory, but probably improper, misleading, or unlawful in execution, in context. And what the Scandal shows us is how this aggression can and does degrade legality, integrity, and honesty. And how it can and does probably lead to professional misconduct and even, potentially, sometimes, crime.

I think three interconnected factors drive the problem:

Firstly, Lawyers’ human, psychological frailties magnify vulnerability to wrongdoing.

Secondly, orthodox but unbalanced ideas about professional partisanship drive irresponsible practices.

Thirdly, these orthodoxies contribute to institutional pollution driving cover-ups, deliberate concealment, half-truths, and the creation of what I call “legality illusions”.

The first reason we need a reset is simple: legal aggression, saying something is arguably legal when it is probably not, or something is arguably true
when it is probably not. It is permitted in court – where, if arms are equal, it can be challenged - but can harm the rule of law beyond it.

Let me illustrate with examples from the Post Office story:

· Lawyers drafted fundamentally unfair contracts forcing sub-postmasters to accept debts they did not owe or be thrown out of their branches

· Debts were pursued to target individuals and make examples of them.

· Prosecutions were run without key evidence

· Plea bargaining was used improperly.

· Expert evidence was tainted by lawyer impropriety

· Critical, and supposedly independent advice and review, was undermined by at least one fatal conflict of interest

· Adverse evidence was suppressed using indefensible and spurious grounds.

· Legal professional privilege was abused and exploited.

· Litigation was conducted on a “scorched earth” and “flat earth” basis, littered with misleading arguments and evidence.

I could go on but will not.

It is likely that not all the failures I list are potential misconduct, but many are. Criminal proceedings are probably being contemplated for some. Aggression, in all likelihood, repeatedly led to serious misconduct.

Frailty

Why can lawyers lead themselves astray in this way?

The first reason lies in the frailty of the professional ‘self-concept’—a belief that, as a professional, one is ethically superior. Research shows that this elevated self-concept can be problematic. Psychologically, in the lab, thinking of oneself as a professional makes one more likely to lie and cheat and makes our lies bigger.

The explanation is we grant ourselves a moral license; we think of ourselves as “better” as professionals. When doing a difficult job in tricky situations, we cut ourselves some slack.

The Inquiry is littered with examples of lawyers saying in response to Counsel’s careful questions that build towards some alleged impropriety, What I would have done was X… Only for it to become quite clear that X is not what they did. Not at all. Sometimes they did the opposite. They imagined themselves as more ethical than they were.

Zeal and Irresponsible Orthodoxies

This leads us directly to the second underlying problem: the dangerous logic of zealous lawyering, particularly, I might add, when applied behind the scenes, when advising or acting – if I can give it a shorthand, in the boardroom, not the courtroom.

The traditional ideology of lawyering—rests on three pillars:

1. Zealous partisanship: Maximising the client’s interests.

2. Neutrality: The lawyer’s own morality must not impede doing what the client wants. And,

3. Non-accountability: The lawyer is not responsible for the client’s instructions or desired outcomes.

Many of you will be thinking, what’s wrong with that? That sounds like what I believe in. With some important modifications, and nuance, I would agree. But without finesse or restraint lawyers can become too quick to persuade themselves zeal, neutrality and non-accountability allows them to rush past legitimate restraints—forgetting their Codes say client interests do not come first or the specific obligation that integrity demands lawyers take “particular care not to mislead”.

Let me show you what I mean with an example.

Alistair Brett, in-house at The Times, advised a journalist, Patrick Foster, when Foster confessed to criminally hacking a policeman’s email account to expose him as the anonymous blogger (”Nightjack”).

Brett treated the criminal hacking as confidential and privileged. And thinking that could be kept secret helped Foster get the story out. He suggested Foster should go through the motions of identifying Nightjack “legitimately” from public sources. This was easy once he knew who the target was.

Lord Justice Leveson cross-examined Mr Brett on it at his Hacking Inquiry. He called this a phoney process. I agree but I can also see an argument that the Times could defend the policeman, DC Horton’s, privacy claim on the basis he could be identified from public sources and so his identity was not private.

Trouble was it was the start of a slippery slope. Its execution went beyond mere phoniness.

Horton’s solicitors asserted Foster had a history of hacking. Brett said the suggestion Horton had been identified because of a history of hacking was baseless. And Foster’s affidavit in the proceedings that followed, made no mention of hacking. It said he began the process of identification legitimately. That was untrue: he began with hacking.

The SDT, and the High Court on appeal, had no difficulty saying Brett had been recklessly misleading.

The lesson is clear: zeal, a questionable but arguable claim, aggression plus over-zealous application, the slanting of facts and arguments, led to professional misconduct.

Psychological Frailties and Fearlessness

When training lawyers, I show them Brett’s cross-examination by Leveson. He seems to come late to the realisation he is in trouble and never accepted he did anything wrong. There are various reasons for that, but one is probably his self-concept. We are brilliant at persuading ourselves we did nothing wrong.

And our all too human modes of thinking amplify our attraction to zeal in a host of ways. The evidence shows we are demonstrably prone to team loyalty bias: subconsciously we exaggerate the prospects of success and prospective gains for clients. Moral intensification makes us less ethical. If our client is a hallowed institution, or we perceive our opponent as a “thief and liar,” we are more likely to rationalise our misdeeds. Slippery slopes cloud our judgment: once we have started to think we can ignore (say) hacking we slip into concealing it and then into pretending to others it never happened. Professional rhetoric about fearlessness promotes zeal as selfless and heroic, but there is psychological evidence that it is associated with self-regard not selfless service of the client.

The central problem is not that zeal and fearlessness are wrong but that they can push the central restraints (such as integrity and the interests of justice) to the back of or out of our minds.

Financial incentives (often) and the many ways our minds incline us towards giving the clients what they want, all add grease to the slippery slope.

Institutional Pollution and Legality Illusions

These individual frailties and logics play out within organisations.

Clients want simple signals, permission, validation—they want to be told: “you can do this, it is lawful”. Lawyers can be managed towards or expected to provide a slanted signal to meet that desire.

If a lawyer exaggerates their advice that X is legal (when it probably is not), clients take bad, risky, or low-integrity decisions. Sometimes on purpose. Sometimes they are led astray. This pressure is magnified by the expectation for lawyers to be “commercial” or “business partners”. Largely these are good things but being commercial can also mean flexing to be more helpful than one ought to be, turning a blind eye or greasing the truth through optimistic construal of facts or risks.

Optimistic construals can take on a life of their own.

In the Post Office for instance, a review of prosecutions started out saying PO prosecutions were potentially profoundly flawed ended up being represented as sayingthere is nothing to suggest any of our convictions were unsafe.

The road to something which, if not a lie, was patently untrue, was paved with a number of tactics or orthodoxies., such as .

A world shaped by arguments more than evidence: witness statements and entire case strategies reflected what the Post Office wanted to be true, not what was true. And,

Zeal not independence dominating decision-making: Disclosure was repeatedly refused on grounds ranging through the gamut of the unreasonable, through barely arguable and into the astonishing.

Privilege was exploited and abused in a similar vein. The fear of creating, or discovering, adverse evidence prompted what might yet, in professional disciplinary proceedings, be framed as willing blindness. Telling ‘the business’ not to investigate patent risks for fear of discovering adverse facts, was one of several things that polluted POL’s own thinking and evidence base.

When adverse facts arose they had a way of disappearing, of being explained away as irrelevant, or not within that lawyer’s remit, or as not requiring investigation, or of being euphemised. An issue of shredding emerged but was buried as a ‘cultural issue’.

The reasons why the (perhaps unfairly notorious) expert Gareth Jenkins had given misleading evidence in criminal proceedings were never investigated. Turns out one reason may have been the lawyer doing the investigating had helped make his evidence misleading.

The Legality Illusion

The orthodoxies created what I call legality illusions: in essence legally informed or created untruths.

Horizon is systematically sound.

There is nothing to suggest any conviction is unsafe

Remote access is not possible (it was, the system had a secret back door)

Our reason for using but not calling a tainted witness are given less than candidly and possibly misleadingly. Lawyers seem to have either directly or through their complicity, knowingly or recklessly, helped build these untruths.

This is not, I think, a problem confined to the PO cases.

Whilst we have less knowledge about the precise responsibilities of individual lawyers, I would argue many Bank’s “wire-stripping” Middle Eastern transactions to bypass US sanctions were built on legality illusions. I would argue the same might be true of Lehman’s repo transactions. Or the papering of Qatari funds by Barclays’ lawyers. Quite often so-called independent investigations bear the hallmarks of a little too much rose and tint. Advice given for public, and political consumption, too may have something of the legality illusion about it.

Routes Back to Proper Professionalism

Now these latter examples lead me back to an important but subtle point.

Actions are taken under pressure, with limited time, and sometimes depleted cognitive resources. Blame may lie with the client or the lawyer or the situation. Sometimes no one is responsible or sometimes it is artfully managed to ensure mutual irresponsibility. Properly scrutinised such examples may include conduct: permissible or negligent, as well as reckless or deliberate misconduct.

There are reasons to think the problems are significant.

SRA thematic reviews reveal about 10% of in-house lawyers admitting being pressured into breaking their rules. The SRA’s review of professional obligations suggested solicitors’ (and COLPs) knowledge of their own ethical rules was poor. Work I did several years ago for the Inns of Court College of Advocacy, suggest the same is true for barristers once admitted. No one has yet been brave enough to test for improvement.

I have engaged with lawyers expected to support the hiding of improper payments; to help paper the inflation of sales figures; to manipulate documents and their witnessing; to delete or leave documents out of disclosure exercises; to evidence events in misleading ways; and to misrepresent or lie about legal or factual positions to counter-parties. With some difficulty, they resisted such attempts.

In a profession of high standards, we have to think about avoiding errors, resisting pressure subtle and egregious, and the tricky territory in between where lines are drawn. We have to think about practicalities, about execution more than theory.

If lawyers are being pushed or pushing themselves to the line; practitioners have to be confident of their own professional obligations. I am sorry to say my impression that ethics confidence is not something I see much of. It is not often prioritised, practised, or talked about.

The cultures we create and work in can, if faulty, push us into, incline us into, errors of a particular kind. This culture comes from giving the client what they want, but also from other human foibles, such as vanity, hubris, or complacency.

Let me illustrate the culture point with two quotes from the chambers of leading barristers:] One KC marketed his services until recently through a client testimonial that praised him “as a steam roller that crushes anything getting in his way.” Another was said to be able to “hold the board of a very large company in the palm of his hand”. He was also said to be able to, “…turn a pile of refuse into something that looks great; it’s an absolute art form.” A Midas with the brown stuff.

Now I could take you through what each of these lawyers did in the POL and suggest one of two things: they made mistakes, or they committed misconduct, or a combination of the two. Let’s assume it was simply that they were human and made mistakes.

If they were steam-rollering and midasing whilst making these mistakes they were doing so with hundreds of miscarriages of justice at stake. Real lives, rendered wortheless. Their mistakes tended to harm those people but also to benefit their clients. There is a point at which the system is what the system does. It bullied people, it toyed with the truth. You become what you sell.

You can argue, of course, that midasing and steam-rollering is in principle within the rules, some of you will argue it is demanded by the rules. But the central point is always this: whatever the position in theory, it is the execution that matters. To paraphrase a phrase misattributed to Peter Drucker, perhaps culture eats ethics for lunch.

If you start off selling myths and machismo, if you do not understand fully your own professional obligations, if you do not have effective ways of managing the pressures and stresses of you and your team, if you do not talk about, learn about, practice ethics, your culture is in trouble.

I am going to end with one final, rather sad but apparently common example. AI – the hallucination cases - I keep seeing - seem to be marked by one phenomenon that stands out. The lawyers involved have often denied, looked away when red flags are raised, buried their heads in the sand. Sometimes it looks like they have lied.

They needed to reset. Do you? Do your colleagues? Or are you all, are we all, just above average drivers?

If I can precis Stephen and Julie’s views, they accepted (with some circumspection) there is a need for a reset, and thought it could be achieved by training and improving culture. You can read my thoughts on how to change things in the third Hamlyn lecture, which can be viewed here or read from p.47 onwards here.

I said in the questions that I did not think the substance of the rules needed radical change but training was not going to be enough on its own.

There is a glimmer of hope in there too, as awful as the insights they provide are. People who have not spoken to the Inquiry before have come forward to speak to them for the first time.

The first tentative steps towards some healing perhaps. We can but hope.

On Friday, I had one of those moments which working on the Post Office Scandal has gifted to me. I did the oration for Sir Alan Bates’ Honorary Doctorate in Law ceremony.

You can watch my proposal here (1’14”24s) and the reception he got at 1’21”20s. The film captures something of the warmth. The applause went on. And on. And on.

And then one man stood up, off to the left out of shot of the camera, and then half a dozen, and then a dozen, and then… Well, you can work it out, I am sure. It was very special indeed.

And after Sir Alan’s speech (1’22”55s) - as well-judged as it was short, with one simple message for all the students, which is harder than it looks sometimes. “Be honest to yourself and hold on to the truth, because one day, it will come out.”

And afterwards a lunch: he, and his wife, Lady Suzanne Bates, made a point of remind us that it really was not all about him. It was about the entire group of postmasters and all those who had supported them. Many worked away selflessly in the background. Helping each other. For years and years. Still doing so.

The First Horizon IT Inquiry Report is out. It weighs in at over 80,000 words. That’s a PHD thesis length for those of you interested.

A detailed, dry, and yet sometimes moving document, the emotional core of heartbreak it conveys is captured I would say by one passage in particular:

3.44. A number of postmasters (some of whom being Core Participants) have died since the commencement of the Inquiry. Of that number there has been a significant percentage who died without having received the full and fair financial redress to which they were entitled. Without exception, the surviving spouse or a near relative of a Core Participant who has died has taken on the status of Core Participant and has closely engaged with the work of the Inquiry. My heartfelt thanks are due to them for their participation.

I will not labour the many layers of decency, love, and pain in that remark (or the gut-wrenching case studies in the report), but it shows I think that the Inquiry team understands the struggles postmasters, and mistresses, and employees and, importantly, family members have faced and continue to face. And that they take those struggles very seriously.

I will highlight some of the key parts of the report as I see it (bearing in mind that I am a member of the Horizon Compensation Advisory Board and, whilst we on the Board are all independent, we have been part of the story for many years now and so in some ways the failures that SWW points to are not incapable of reflecting on us too).

Before I give you what I think are the headlines and the lessons, it is worth pointing out some of the more general things Sir Wyn’s report said by way of context with an eye on the next (and probably final) report which I think is probably coming towards the end of the year or early next.

Important context

There were a few interesting markers for what we can expect from the next report. Unsurprisingly, but importantly, Williams is

“satisfied …that a number of senior, and not so senior, employees of the Post Office knew or, at the very least, should have known that Legacy Horizon was capable of error as described above. Yet, for all practical purposes, throughout the lifetime of Legacy Horizon, the Post Office maintained the fiction that its data was always accurate.”

He makes a barbed remark that suggests the view that the current version of Horizon is significantly more robust than earlier versions maybe flawed. And having reminded us all of the “many hundreds of people have been convicted, wrongly, of criminal offences, and many thousands of people have been held responsible, wrongly, for losses which were illusory, as opposed to real” he lays the blame for that on the, “wholly unacceptable behaviour perpetrated by a number of individuals employed by and/or associated with the Post Office and Fujitsu from time to time and by the Post Office and Fujitsu as institutions.”

Employed and/or associated with. Senior and not so senior.

I will resist the urge to paint the picture further other than to note, because Williams notes when discussing why postmasters were put in the most invidious of positions when charged with theft and false accounting, that:

Setting aside, at this stage, the propriety of charging the offences of theft and false accounting as alternatives, I have no doubt that most barristers skilled in the practice of criminal law would have advised their clients that a conviction for stealing from a Post Office would, almost inevitably, carry a more severe sentence than a conviction for false accounting.

It’s a notable comment because several lawyers associated with the Post Office, as those of you have read these blogs may recall, struggled to advise the PO with such clarity on this matter when asked to do so. It was, it seemed at that stage of the Inquiry, a litmus test for their professional independence.

One particularly important point he does make is that in describing “wholly unacceptable behaviour” he will not in his final report be “determining criminal or civil liability”. He cannot do so; indeed, he reminds us, the law on Inquiries precludes it. This may perhaps be signalling a thought about recommending the law on Inquiries might change (something Jason Beer KC has been noted as talking about recently).

Another point he makes, which has not been much highlighted hitherto is that quite a lot of postmasters were prosecuted but acquitted “probably somewhere in the region of 7.5%, the report says”, noting also, and something our own research agrees with, that this is “invariably disastrous even for those acquitted”.

The good news

Before providing you with flavour of what has gone wrong with the compensation and redress for the postmasters it is worth emphasising two particular positives in his report, to those who may lose the will to read on.

Firstly, is the one recommendation of Sir Wynn (and let me be clear I think his report and the recommendations contain a great deal to be welcomed) most likely to have the biggest impact. It is his recommendation that

“The Department shall devise a process for providing financial redress to close family members of those most adversely affected by Horizon. Such family members shall qualify for such redress only if they themselves, have suffered serious adverse consequences by reason of their family relationship with the person or persons directly affected by Horizon.”

Of all the heartbreaking stories I have heard, or read, many of the worst are stories about the children. If I had been hoping for one recommendation above all from Sir Wyn yesterday, it would have been this one. He perfectly captures the legal difficulties that have stood in the way of this; in essence the law would have made legal claims by the children very difficult if not impossible. For a variety of reasons, he says, fairness demands close relatives seriously affected by their loved onw’s treatment by POL be compensated. The Advisory Board has been urging this for some time, the PO Project Team’s work has evidenced the huge impact, and as Post Office Minister’s announcement in Parliament yesterday shows, the Government supports it and will implement a scheme.

The second point is good news for the Government but will not be accepted by all, for understandable reasons. It is that Williams accepts that the Government and POL “remain committed” to deliver compensation that is full, fair, and delivered promptly. Many postmasters have the strongest doubts about that commitment. I have fewer doubts but one can understand why those let down by delay and, sometimes, dithering, if one only looks at the many dates in the report. Over five years have passed since the first HSS was established, and in Sir Wyn’s eyes it is the scheme with the most problems.

This good news for the Government is rather modest comfort because Sir Wyn also explains how and why he thinks they have failed to deliver full, fair, still less prompt compensation, but at least partly explains why he is not tempted to rip the schemes up and start again, or indeed to take the administration of the HSS scheme off of the Post Office. The other reason, as he explained in his speech to the Inquiry yesterday, is that this would cause further substantial and intolerable delay.

For the postmasters there is though, I think I should speak plainly, some particularly bad news, amid the sensible recommendations. That is that Sir Wyn rightly sees the substantial challenges in delivering on the cases that remain to be submitted, assessed, and/or settled and/or reviewed/appealed. The work he thinks will be unlikely to be completed before the end of 2026. Many of the cases that remain are complex, and difficult.

Indeed, on the schemes as they are now working, he tends not point the finger of blame at DBT or POL or the claimants’ lawyers. His main suggestion on improving speed is for the HSS to have an independent senior lawyer responsible for driving forward progress on the many, many cases that will still need attention. The other schemes already have a similar figure and yet, he notes, there are substantial challenges of delay in those too. So this recommendation is not likely to be viewed by him as a panacea, but as something that might substantially assist in reducing delay. It is notable that he does not adopt some of the suggestions offered by the Business Select Committee for dealing with the problem.

The other ongoing issue which he reserves particularly withering remarks for is the refusal to fund legal advice for the early stages of HSS schemes. He views the DBT’s stance on this issue, which is in essence that the scheme was designed to be and can be run without the need for legal advice, as “indefensible” – it is out of step, he says, with the other schemes, and there are real benefits to claimants having legal advice at the point in the HSS scheme where they must choose between a fixed offer and having their claim assessed. He points also the Department continuing “to resist this as if its life depended upon it”. I should, in a spirit of full disclosure, note here the Advisory Board have on balance, so far accepted and supported the DBT view.

On whether the schemes have delivered full and fair compensation his finding is that often it is impossible to say without reviewing cases; he is precluded from doing so (and would of course take a very long time to do this in a weighty way).

His greatest worries on fullness and fairness are reserved for the HSS scheme, with the general absence of representation, and an overly legalistic or adversarial approach by POL and its lawyers, and perhaps, he seems to think, the independent panels driving much of that. I do not read him as attributing blame for that to POL (for the what they asked HSF to do) or for HSF advising in ways that led POL astray. Indeed there is no suggestion from him that they did the latter; the portrayal of HSF is of giving advice that is conventional for ordinary litigation but out of place in these schemes.

He has some interesting things to say about how and why the system might be improved to increase the likelihood of ensuring fullness and fairness. I am not going to rehearse them all, but you can read them in the report or its summary.

He points to a number of ways in which claims may have been undervalued by unrepresented claimants in particular (again in the HSS scheme) and how that was for some, perhaps many but not all, generously addressed by fixed level offers. There is a sense that he might be uncomfortable with the fixed offers (£75k for an HSS claim can be accepted even if actual losses were very low) but he is also very clear that fixed offers have had a powerful and positive impact on the ability of the schemes to function and in reducing delay. He is also conscious of the risk that, especially for the unrepresented, fixed offers might lead to unfair under settling.

On delay he becomes pointedly critical of early failures in the setting up of the schemes. By the time of the Bates judgment in 2019, he says, the range of different claims would have been reasonable apparent. The scale of the task should have been significantly clearer by the end of 2020 when it became clear there were going to be significant numbers of overturned convictions. In particular, early estimates of the scale of HSS claims, which woefully underestimated the number of such scales, would have been realised as hopelessly optimistic by then. POL and the Department failed, he says, to stop and think in the round about the range and scale of claims and how to address all eligible claims so they could be resolved in a consistent and expeditious way. Setting up three separate schemes rather than one caused, he thinks, considerable delay.

Other sources of delay he highlighted included the Government’s unwillingness to conclude a funding agreement with POL to fund ‘late’ HSS claims; the near year it took to agree the Advisory Board’s advice on, and the further 9 months to implement, the HSS appeals process; and the reluctance of HM Treasury to approve certain elements of schemes (which may explain other delays too perhaps).

There is much more detail. And as the Advisory Board will no doubt be advising the Government on many of the recommendations, I resist the urge to go through them all and provide my own views. That would fun but not entirely appropriate. There are, though, two other points I noticed worth mentioning now.

The first is Sir Wyn’s recommendation that there be a standing public body which can advise on administer and deliver similar schemes of financial redress in the future with significant independence from those public bodies.

The second is that:

By 31 October 2025, the Department, Fujitsu and the Post Office shall publish, either separately or together, a report outlining any agreed programme of restorative justice and/or actions taken by that date to produce such a programme.

That is, or should be, a substantial undertaking, and there is some way to go. We get some clue of the distance that needs to be travelled from this other remark from Sir Wyn in his report:

I understand that a meeting has now taken place between representatives of the Department, Mr. Patterson and Mr Takahito Tokita, the chief executive officer of Fujitsu Limited, following which a joint statement was issued as follows:

“Ahead of the completion of Sir Wyn Williams’ Horizon IT Inquiry, the Secretary of State and Mr Patterson agreed to progress discussions regarding Fujitsu’s contribution, acknowledging many parties are involved.”

What we cannot see is the end point that need to be aiming for here. The struggles of the postmasters and their families will carry on in the meantime, some labouring without their loved ones, but much more is needed than an agreement to progress. Whoever is responsible such a watery commitment from Fujitsu should, I think, be ashamed of themselves.

Understanding, agreeing, and actioning what a restorative justice plan could look like is a significant undertaking, and as Sir Wyn’s detailed dissection of the outstanding claimed, lodged and unlocked, shows so well, there is a great deal of work to be done on delivering full, fair compensation in anything like a timely manner from this point forwards. There is no turning away from it.

Image by WikiImages from Pixabay

On Monday we published a report on the Impacts of the PO Scandal on its victims-survivors. Lord Arbuthnot kindly hosted a meeting with SPMs and Parliamentarians to discuss some of the issues. Here is the text of the speech I gave.

Lord Arbuthnot, colleagues, subpostmasters and mistresses, and your family members, welcome and thank you for giving up your time.

We are grateful for the chance to speak to your parliamentary colleagues to discuss our report on the impact of the PO scandal. I want to do two things: one is to explain the central lessons the report. We think it an important, thorough, and moving telling of the truly awful harm inflicted on SPMs and their families by PO but also how their repeated engagements with the law, and attempts to get redress, have continued that harm. We call this the ripple effect.

The second is about prevention: about how we make it more likely that such harms do not happen again.

In the report, we think we delve deeper into the stories and pain experienced than even the Inquiry could. We did two surveys one of sub- postmaster’s and the other of family members, both found about two thirds showed signs of deep trauma: post-traumatic stress, depression and anxiety, in particular.

This was true whether or not people were convicted or even prosecuted. Unjust accusation; arbitrary, unfair treatment were the problems.

We used in-depth interviews, with a great deal of care being taken by my colleagues, Drs Sally Day and Karen Nokes, to interview people sensitively and to tell their story as accurately as we can.

Let me use two quotes to try to capture a sense of how fundamentally some SPMs have been scarred. One said:

“I don’t like the person I am now. It’s impacted us financially and socially. I don’t go out anymore. I cut off all my friends because, as I say, some of them didn’t want to know me. …Who wants a friend who, 10, 20 years later, is still harping on about the Post Office?

And a second:

“The me before this happened isn’t the me that’s here now. I’m a totally different person. I’ve just got a big hole. …I don’t feel things anymore. I mean, yes,
I cry when I get upset…I just don’t feel anything, and that’s no way to live.”

In those two brief quotations, we get a sense of how stigma, stigma in the local paper and on the news, stigma at the school gates, whispering campaigns, spitting and abuse, led to many sub-postmasters being ostracised or to isolate themselves at home.

Social exclusion, to use an old phrase in a new way, of the most vivid kind.

Stigma was accompanied by financial ruin: kicked out of their Post Office branches, sometimes locked into a ruined business that remained behind, suffering banks doing what banks do in situations of financial stress, unable to look after themselves and their families and forced to engage in fire sales of any assets that remained. A financial domino effect that led to many being supported by their families, friends, by loans or handouts.

Financial ruin stayed with them. They were unable to get work with dishonesty convictions, or simply the cloud of accusation, hanging over them.

Many could not pay for essentials.

There was a cascade of harm from trauma to stigma to anxiety to alcohol misuse and illness to sometimes profoundly shocking mental health breakdowns.

Yet it often felt that their life was wiped out in one day; the day they were suspended, or accused, or imprisoned, the arbitrary injustice that started then and continued. This profound breach of trust, this idea that as one subpostmaster told us, “the British justice system has sat back and allowed this to happen”.

It has left many personally, physically and mentally, socially and politically, mistrustful. As one told us, they have remained ever since in a “heightened state of arousal just waiting for the worst” all the time. It’s why some are still phobic of computers, paperwork, and officialdom, and why some feel their lives are beset by moments of panic or loss of control.

It comes as little surprise, but is incredibly important to understand that, as one interviewee told us, their relationships have been put “through the shredder”. Everyone in the family unit needs support and nobody can give it, everyone is suffering. Children suffering gossip, bullying, panic attacks and self-harm or worse and yet are still trying to protect their parents, trying to look after parents who are suffering and feeling that they have abandoned their own children because they are in such a mess.

Many of those we talked to had endured suicidal thoughts, thinking that their families would be better off without them. Sadly, as we know, several SPMs (and family members) have acted on such thoughts and tried to or ended their lives.

Some of the last-ditch moments ended more happily because of the support the subpostmasters have provided each other. Public support and vindication, the brilliant ITV series, and Parliamentary action on the quashing of convictions have also helped them feel they are no longer pariahs.

But…

The feeling of being let down, the waiting for the worst in a heightened state of arousal, the anxiety and depression, was exacerbated, and is re-visited on them, by each stage of the process they have gone through.

Some of this is necessary, or unavoidable. It is incredibly painful for them to watch witnesses give unsatisfactory evidence before the Inquiry, but there is at least a measure of holding to account even sometimes in their evading of Counsel’s questions.

To reach that point they had to fight their way through the criminal justice system, a shadow of what it should be, the post office mediation scheme, the Bates group litigation, and what I would call the “half glass of empty” approach of the Court of Appeal, and into the compensation schemes initially designed by the Post Office’s lawyers, apparently at the (then) government’s insistence.

Whilst politicians on all sides of the house have done miraculous work, particularly on convictions, and post office ministers, and here I should mention Kevin Hollinrake and Gareth Thomas – and their civil servants, now struggle hard to improve to make compensation schemes quicker and fairer. We all know the fundamental problems of trust, speed, and adversarialism ‘lawyers being lawyers’ remain.

Our report is a plea to take even more seriously the social and psychological harm that subpostmasters, and particularly their family members, have suffered. But also to think differently about how to meet their needs.

There is the beginnings of a debate about public Inquiries, whether they work, how much they cost, whether there are better ways. The Horizon IT Inquiry has some limitations but that should not detract from the great work it has done. So far I would say it gives subpostmasters cause for hope. But, after that, they will need to wait for any holding to account through the courts and the professions disciplinary processes if – as is likely but not definite– the Inquiry finds some individuals responsible alongside the more slippery blame placed on ‘the system’.

On the system… It was in 2009 when problems became public and 2013 when they should have been accepted by the PO and 2019 when they began to be legally recognised.

We have to keep asking ourselves, why are we, more importantly why are these subpostmasters, still waiting for answers and action in 2025 and what can we do about that?

The failures of criminal justice (prosecutors in particular, but also courts and defence), civil justice, corporate governance, and professional regulation all featured in the comments of subpostmasters to us. Many SPMs support changes in the law on private prosecutions, computer evidence, and the Hillsborough law duty of candour. Many are concerned about legal aid. British justice really did seem to just sit back and allow this to happen.

Swift and fair compensation, including for family members, is rightly a focus and I am sure we will, and look forward to, hearing more on that from some present here.

What else should be a focus. There is a need to think very carefully about the big structural issues.

Why was (is) the criminal justice so careless with palpable injustice?

How do we turn round cover-up culture? Why do those with resources find it so easy to hide behind lawyers and PR?

Why are courts such useful tools in their armoury?

How do groups like the SPMs find achieving justice so difficult?

For it is these problems that ruined lives: made too many tell us their lives were empty, or they did not like themselves anymore, or that their families would be better off without them.

Justice sits back for people like the SPMs. And it should not.

So I make a plea: can we, can you, are we, are you, willing to do more to change that? I suggest these questions for you to respond to now and over time:

1. Can we develop independent, fairer, quicker, less adversarial investigation and redress mechanisms?

2. Can we include elements of restorative justice and therapeutic support for victims of scandals?

3. Can we, how do we, short circuit the attritional legal and political dance towards public inquiries and ensure they lead to action rather than words?

4. How do we tackle cover-up culture in Britain?

5. What do we do to make lawyers better and court processes less poisonous?

6. How do criminal justice and appeals systems need to change? Lord Leveson is looking at efficiency. There is so much more that needs attention.

Thank you very much for listening (reading).

Our report “Understanding the Impacts of the Post Office Scandal” was published yesterday (It is here as WP10). We held a meeting with subpostmasters, -mistresses, and family members.

The report seeks to tell the story of how the Scandal has impacted those accused, sued, sacked, and prosecuted. Of course, this is am impossible task, there is too much to tell, but we have sought to present the essence of many stories in one place.

I want to pay a little tribute to my colleagues, who lead, executed and wrote this work with incredible care and empathy. As I read drafts, I don’t mind saying, rather used to the awful histories as I am, I found it very harrowing. The journey from the trauma of accusation, through stigma, isolation, anxiety and depression and the way these patterns played out on and in family members, parents, partners and children, is heart-breaking. In one sense, one simple, sad comment we have heard from many SPMs repeatedly, captures the drift. “I am a different person now.”

And of course, I hope the tales of how law and legal processes can drive harm are taken seriously by lawyers everywhere. As I said in the Hamlyn’s, harm has to be taken seriously by lawyers; they should not just brush it off as the price of doing business.

We took the report to Parliament to discuss with SPMs and interested politicians. A great many thanks to the them all for a fascinating afternoon, which ended up in one question, how to change the culture of defensiveness that infects public life and organisations. A little more on that another day.

And finally a word of thanks to all those victim-survivors of the post office scandal who have shared their stories with us. Thank you for trusting us. And to everyone who came yesterday, in person and online, thank you for all your thoughts. There are several contributions that will live with me a long time. One SPM had a quiet word with me yesterday. As terrible as the experiences had been, they said, in a way, it had changed them for the better.

There is, I think , a lot to learn from all of them.

Read Day, Nokes, Moorhead, Helm (2025) Understanding the Impacts of the Post Office Scandal here.

Image by Alex from Pixabay

I have been trying to put the finishing touches to the Hamlyn lectures so I can send them off to the publishers and have, in the shadow of my beloved Newcastle’s demolition of Liverpool, been pondering Lord Grabiner* more than is healthy.

For those of you who do not know, Lord Grabiner advised and represented Post Office Ltd (POL) in a bid to have Mr Justice Fraser recused from the Bates case. POL were concerned about losing all ends up apparent bias in 2019. Both he and Lord Neuberger had advised such an application had reasonable prospects of success.

Their lordships maintained to the PO Inquiry that their advice was proper and correct.

The main point of weakness focused on by the Inquiry was the suggestion that Lord Grabiner advised the board in ways that suggested, it was alleged, have a duty to try to recuse the judge in Bates. They did not have a duty and Grabiner tells the Inquiry he didn’t say they had a legal duty (as a note of a meeting suggested was the understanding). It was, ‘a piece of advice given by a lawyer to a Board of directors as to how he thinks, as the adviser, they should proceed, and it was firmly expressed.’ In Grabiner’s favour is the point that the Board decided by a vote to proceed with the recusal application suggests the Board perceived they had at least some choice.

POL’s final submissions to the Inquiry though said, ‘when presented with the clear advice of two such eminent barristers (one the ex-President of the Supreme Court), realistically it would be unfair to criticise POL for accepting it.’

So we have here an almost example of what I call mutual responsibility. The lawyers says I merely advised, and the client says I simply followed advice. If the lins of Lord Grabiner and the Post Office are accepted, neither can be criticised. Neither can be helped responsible.

Anyway, I have been digging a little further into the law supposedly restraining lawyers when giving advice for the book; in particular, the law as described in this blog from Gordon Exall.

This suggests advice from a lawyer needs to be clear about forseeable risks that the client does not appreciate. There is a duty on solicitors (and the same must apply to barristers I think) to advise (lay) clients of the risks of their own advice being wrong (citing Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson [2002] PNLR 300)). And in Hermann v Withers LLP [2012] PNLR 28, where the solicitors’ gave an opinion on the merits which was not negligent they ‘should [nonetheless] have appreciated, and should have advised, that the correct legal answer was open to significant argument. They should not have advised in unequivocal terms but should have warned of the existence of the contrary arguments.’

Grabiner’s advice, at least as represented in the Inquiry, looks pretty unequivocal.

In Thomas -v- Albutt [2015] EWHC, Morgan J states,

‘It is the duty of the solicitor to state not only his opinion as to the correct construction but he will also normally be expected to point out, where appropriate, that there are arguments to the contrary and what the consequences are of his opinion not being upheld.’

And in Levicom International Holdings BV v Linklaters [2010] PNLR 29, a case based on advice being too optimistic or even wrong, Burnton LJ held, ‘the solicitors could not sensibly have advised that the meaning of the document was “clear” and they ought to have given a balanced view of the rival arguments particularly in the context of potential arbitration proceedings.’

Whether this would be sufficient to mount a claim against Lord Grabiner for negligence, I do not know. In Thomas -v- Albutt [2015] EWHC, the judge held solicitors were not negligent in failing to advise of litigation risks because they were acting for solicitor clients who would have appreciated the risks without the need for more advice on it. POL had their own in-house lawyers, so this might offset concerns that the Board did not properly understand the risks on which Lord Grabiner was called in to independently advise. Or it might not.

What Gordon’s blog suggests is that, of course, advice can be firmly expressed, but it also has to be clear about the risks, and an assessment of merits has to be within the range that is capable of sensibly being given. The question for the Grabiner example is whether the level of firmness inappropriately discounted the risks of bringing the application.

For some reason, that reminds me of a completely different advice. Nothing to do with the Post Office. Made the papers. Answers on a post card…

………

Postscript courtesy of Graeme Johnston on done of the detail of what the evidence suggests on, "...the suggestion that Lord Grabiner advised the board in ways that suggested, it was alleged, have a duty to try to recuse the judge..."

It's been noted in many judgments that contemporaneous docs are typically the most reliable indicator. In this case, the docs are undisputed and the gist is clear. From Lord G's statement:

Para 9: 'I am asked whether I advised that there was "a duty on Post Office to seek recusal" and, if so, to explain the basis of that advice. I confirm that I gave that advice: it is accurately recorded...'

Para 10: '... Lord Neuberger (prior to my involvement)... had already advised that "the PO has little option but to seek to get the Judge to recuse himself at this stage."... I agreed with it and, independently, reached the same conclusion...'

Para 12: 'It was my view, based on everything I had read and what I had heard from the counsel team and from Lord Neuberger, that PO realistically had no choice but to invite Fraser J. to recuse himself...'

And in particular:

Para 20: '....My reply timed 11.27, and Lord Neuberger's response timed 14.38, which ends the chain, says: "We've been instructed to proceed. I don't think the clients had any choice but they were reluctant to take such a serious step".'

Also, Lord Arbuthnot has pointed out to me in the other place (okay, its LinkedIn) that arguments similar to these could be made about Lord Neuberger’s advice. We know rather less about his advice, not least because the Inquiry, regrettably in my view, did not call him.

___________

*I thought that I had read somewhere that Lord Grabiner is a Liverpool fan but it may be I have simply mixed that up with his representation of them.

Image by Pete Linforth from Pixabay

I have been closely reading the Post Office (POL’s) final submissions to the PO Inquiry. It is a skilfully drafted document, interesting for an indication of where POL think there are battles to be won.

In general, whether I agree with what they say or not, they often look like sensible battles to be pick from their point of view. They draw attention to interesting conflicts or absences in the evidence, some of this will help the Inquiry (no, really) and some might help POL get a bit less of a kicking even whilst it knows it is going to get a mawling.

I had a feeling on occasion that some of the points had an eye on future potential litigation against the organisation or perhaps people connected with it. It particularly sought to advance the point that it was culture and understandable bias that drove the problems as much as any individual failure. The individual failures they sought to emphasise generally, I would say, were the product of incompetence or negligence rather than deliberate wrongdoing or conspiracy.

One decision I cannot allow to pass unremarked is their own handling of the mediation scheme chaired by Sir Anthony Hooper. They recognise in limited ways the mediation was problematic and not geared towards “truth-seeking” (major eye-roll*) but argue it was not wrong in conventional legal/tactical terms (which in a way makes a deeper and troubling point - the conventional justifications are messed-up).

These are arguments that they are entitled to make, although you can get a sense of the need for vigilance with some of their claims given they say a “not insignificant portion” of cases were mediated, an only put the actual figure in the footnotes: 24/136 - and without any mention of why those people might have settled).

But it was their attempt, to suggest Sir Alan Bates’ using the mediation to get information relevant to litigation that was somehow morally equivalent to their own tactical exploitation of mediation which I thought was really foolish. They say this:

it is fair to say that the criticisms which have been levelled at POL as to how transparent it was in respect of what it intended by, and expected to achieve from, the ICRMS [the mediation], can be applied equally to [Sir Alan Bates]/JFSA

This is a sentence which shows that POL and its lawyers still need to recalibrate their understanding of what “fair” and “equally” means. They might also, perhaps, consider what the word “ludicrous” means while they do so.

A good deal of the submission is about caution, and not being too hindsighty, and blaming systems not people. The balance between individual blame and the system putting the inept or the inexperienced into difficult situations to which they “rose” in generally rather similar ways (not a point they make, that’s my point), is nicely captured in the first substantive point they make about POL’’s handling of the Bates litigation. They suggest their strategy was in significant ways driven by their reliance on legal advice. They head straight to Womble Bond Dickinson’s Andy Parsons and begin by saying this:

236. WBD first became involved in advising POL in early 2013 when [Andy Parsons] was instructed to advise on letters before claim from Postmasters raising concerns about the Horizon system. He was then a 5 years PQE associate at WBD. He advised on the disclosure (or otherwise) of issues with Horizon in letters to Postmasters, despite the fact that he "didn't understand the nature of the error in hardly any detail", and advised on crucial wording in correspondence based on his understanding that it was normal for lawyers to "soften wording". He made "recommendations" to POL on his own initiative without instructions or without the "level of thought" required to understand the impact on disclosure in other matters.

237. He remained POL's main external legal adviser in civil matters to POL until 2019 during which period he played a substantial role in shaping POL's strategy in relation to key responses to the emerging scandal (including the response to SSIR and the ICRMS). He was made a Partner in May 2016 (just weeks after proceedings in the GLO were issued), and thereafter had principal responsibility for the conduct of POL's defence in the GLO, sitting on the Postmaster Litigation Steering Group (PLSG) and attending some meetings of the Board Subcommittee (established in early 2018). This was despite having no previous experience of group litigation. [Andy Parsons] in turn delegated a number of tasks to a colleague, Amy Prime ("APr"), including the instruction of [Brian Altman KC] in relation to the criminal appeals, and liaising with POL to provide background to the pleading in the GLO. At this time APr was less than one year PQE.

238. It was obviously a mistake for POL to rely on such an inexperienced legal adviser in APa, and, in turn, for him in turn to rely on such a junior colleague, in a matter of such significance to POL. Indeed, the absence of any tendering process for appointment as POL's lawyers in the GLO, or even any evidence at its inception there was anything more than a cursory consideration of instructing another firm of solicitors (and in any event no consideration apparently given to instructing a more senior partner), was an obvious error. It is now clear (and ought to have been clear to POL at the time) that [Andy Parsons] had neither the experience nor the judgement to provide POL with the depth of advice that the GLO required. Moreover, his involvement from a very junior stage of his career appears to have led [Andy Parsons] to overidentify with his client in litigation and to lose his ability clearly to assess issues of disclosure, evidence, strategy and costs. As a result, POL was deprived of legal advice which was truly objective.

Well except for all the other lawyers involved for them, some in-house, and some at the Bar. They get mentions but usually, save for those who worked at Cartwright King, more muted ones.

* The Submission is littered with statements that might be knowing, lawyerly, understated admissions or signs that POL do not still get beyond the corporate reflex to defend or gloss the indefensible. It was hard sometimes to tell the difference and perhaps that is the point.

Our own work with sub-postmasters and sub-mistresses (SPMs), which we will be publishing more of soon, suggests how important the Inquiry has been in starting to get explanations and justice for them. It book-ended a year that began with the ITV drama. It is almost beyond comprehending how profoundly that seems to have impacted the national conversation. For once a phrase that feels rightly used: in taxis, schools, pubs, theatres, meetings, conferences, podcasts, TV, radio, newspapers. You name it the story of the Post Office’s corporate vandalism has filled it. And again, I believe that has been a boon to so many of the sub-postmasters, who do, can (or should) feel able to hold their heads high in the communities rightly outraged on their behalf.

Many too bear scars that do not bear imagining and remain hidden from view.

Our own work has been exploring this (our latest piece on family members is here, Working Paper 8). And the last two days were also a reminder that questions, buck-passing (or non-finger-pointy finger-pointing as I now like to think of it), and excuse making persists.

I have no doubt that this continues to cause SPMs real and enduring pain.

Ultimately there is much further to go for real accountability and anything approaching closure, with all eyes now on Sir Wyn and his team, the regulators, and the Metropolitan Police. Sadly, there will not be no more drama; it will roll on for several years yet.

The need for full and fair compensation for all those affected remains a running sore as all of us on the Horizon Compensation Board know very well indeed, but of course we cannot really grasp what it’s like to be waiting, with such uncertainty, and often in poor health, after so many years.

We are also very mindful of the systemic problems that drive this and want to try and avoid other victims of similar scandals going through such over-adversarial and defensively-lawyered processes in the future.

I am resisting the urge to indulge in a full blown analysis of the submissions. You had to feel for all the legal teams given, for understandable reason, 100 pages and 1 hour (usually) to make their submissions.

There was of course masterful work, trenchant analysis and, I am told because sadly I could not attend, lots of tears afterwards from the gallery that clapped Sir Wyn out.

I cannot resist one tiny highlight. The last thing I noticed in the submissions before I decided to down tools and put pen to paper. It happens to come from the DBT written submissions.

The part played by lawyers is a recurring theme running through this scandal. It is apparent now that there was a sustained failure by Post Office lawyers to disclose exculpatory evidence to individuals that they were prosecuting or had prosecuted and that there was a failure to inform their expert witness of their duty to the court. It is also clear that the Post Office's assertion of legal professional privilege and confidentiality was regularly used as a mechanism for the restricting of the flow of information and avoiding external scrutiny. Further, it is clear that the Post Office was on occasion given strikingly poor quality advice by external lawyers.* This is something that could not have been anticipated by anyone and is shocking in itself.

* marks footnote 156 (impeccably placed after the punctuation and not before) and refers to Lord Grabiner’s advice to the Board about the “duty” to recuse Peter Fraser. It is interesting that they chose that example to make the point that could have been made about so many other incidents (and was by them and others).

Perhaps it was an accident.

Or perhaps it’s pure gold.