Phase 4 of the Horizon Inquiry is concerned with “Action against Sub-postmasters and others: policy making, audits and investigations, civil and criminal proceedings, knowledge of and responsibility for failures in investigation and disclosure.”
A substantial part of this will be focused on the role of lawyers in the Horizon scandal. Lawyers are crucial to the “who knew what, when, and why they did what they did” in what is one of the biggest miscarriages of justice we have seen in the UK. In understanding responsibility and allocating, where it is deserved, blame, public inquiry chair, Wyn Williams, will be keen to understand the role of managers, from the chairman and CEO down, lawyers, and others such as auditors who are responsible.
Williams has taken the critical decision to get the usual veil of professional and corporate secrecy, and legal professional privilege, lifted to counter unaccountable buck-passing. Instead we are likely to get accountable buck passing – criminal defence lawyers have a phrase for it; the cut-throat defence. I blame you and you blame me, while Wyn Williams and his team painstakingly piece together what really happened from the documents.
Lawyers have been involved since the early days of Horizon. They drafted contracts that governed testing and acceptance of the system during its roll-out. They may be partly responsible for the contractual incentives which encouraged Fujitsu engineers to downgrade software problems’ seriousness and attribute them to user error. We’ve not heard if the contracts covered proper audit of those decisions, which arguably they should have done. Payments under the contracts for requesting Horizon data may have disincentivised proper investigation. And there have already been questions about whether the contract adequately covered the production of evidence robust enough to form the basis of criminal and civil cases.
Unfair contracts
We know from the decisions of High Court judge Peter Fraser in the Bates vs Post Office case in 2019 that the Post Office subjected subpostmasters to “unfair” contracts, unfairness that was deliberately ratcheted up over time. We have seen suggestions that the tightening of the screw may have come from a lawyer involved in the case of former subpostmaster Lee Castleton. We know that the contracts facilitated aggressive, bad faith conduct towards subpostmasters, threatening them without legal cause and for example bankrupting Lee Castleton through litigation costs. The latter may have been done to make an example of him rather than simply to enforce what Post Office saw as a debt.
Evidence to the inquiry emerged that suggested this too may have been a deliberate strategy emanating from Post Office lawyers designed to maximise financial recovery and protect Horizon’s reputation. The question of whether the lawyers have engaged in, or been complicit in, misleading behaviour or otherwise taken unfair advantage is important here – these can amount to serious professional misconduct. There will also be questions about whether material evidence has been properly disclosed.
The heart of the scandal is the hundreds of criminal prosecutions that blighted so many lives, whether it be through the taint of accusation, the blight of conviction, or the pain of imprisonment. Lawyers would have had at least some oversight of inadequate investigations.
Lawyers in the Post Office and through solicitor firms, Cartwright King in particular, had responsibility for advising on and taking charging decisions. Here a central problem appears to have been charging subpostmasters with serious offences including theft, without there being the necessary evidence, especially of dishonesty and without investigating potential defences raised by the subpostmasters. Related to this is the apparent practice of the Post Office deliberately charging theft, which accentuated the risk of prison, as a way of leveraging guilty pleas inappropriately.
Improper behaviour
Who was responsible for this? The factual basis of the advice given and legal steps taken will be crucial. We already know of one case where an investigator said there was no evidence of dishonesty and several lines of defence apparent in the investigation and yet the Post Office’s lawyer decided there was sufficient evidence to charge. A failure to explain this satisfactorily may well open that lawyer up to an allegation that they behaved improperly. Prosecutors are obliged to be fair, charge on the evidence, and properly investigate. They cannot simply steamroller defendants with half-baked and exaggerated cases.
The way in which plea deals were negotiated is also likely to come under scrutiny. The evidence is consistent with plea deals being aimed at aiding recovery of money from subpostmasters (which as it turns out they almost certainly did not owe) and protect the reputation of Horizon – to reduce the risk of prison, defence lawyers had to agree with their clients that they could not mention Horizon problems in the sentencing speeches.
All of these problems with prosecution are serious but that seriousness climbs when it comes to issues of disclosure. A prosecutor is obliged to disclose any information that may undermine the prosecution case or support the defence. We know that this did not happen in many, perhaps all, Post Office cases.
Evidence of bugs, evidence of decisions not to properly investigate bugs, evidence that Post Office experts knew of bugs which they did not disclose, and evidence that remote access to the Horizon system – being evidence that the system was not a secure and sufficient basis for a prosecution – was all disclosable. The Ismay Report, with its peculiar genius of saying they had better not investigate Horizon for fear of revealing a lack of confidence in Horizon, was in itself something which should have been disclosed and was not.
Whether such disclosures were inadvertent, deliberate or some combination of the two will be crucial. How and whether lawyers advised, and how managers responded, and what responsibility they should take for that failure are all likely to be a focus of the inquiry in Phase 4. There is likely to be a particular focus on cases like Seema Misra, not least in the face of a lawyer crowing that a defence had been destroyed. How far that was winning through cheating that led to the imprisonment of an innocent woman, pregnant at the time of her sentencing, is a likely theme here.
Scorching judgement
Lawyers are professionally obliged to protect the best interest of their client, but also the rule of law and the administration of justice. They have obligations to disclose relevant evidence not protected by professional secrecy laws (legal professional privilege), with particularly strong obligations to disclose in criminal cases. And they have obligations not to mislead the court and others. They have obligations to not take unfair advantage of opponents. And prosecutors have particular obligations around prosecuting fairly.
The Court of Appeal in the Hamilton case (appeals against convictions) was concerned enough to issue a scorching judgment about the prosecution of subpostmasters, raising but leaving open whether it was bad faith that stifled proper behaviour. In crude terms, the issue will be: are the failures we have already seen, and will hear more about in Phase 4, due to errors of judgement, incompetence, over-enthusiastic protection of the Post Office’s interests, or something darker.
Phase 5 will take us deeper into that territory. More of that if Computer Weekly invite me back…
Richard Moorhead is Professor of Law and Professional Ethics in Exeter. He leads the Post Office Project with the University of Exeter and UCL. He also sits on the board advising the government on the Horizon Compensation Schemes. He blogs on substack on the Post Office Scandal and at lawyerwatch.blog on lawyers ethics more generally