Consequences of The Horizon Trial for lawyers - does 'legal ethics' have any meaning?

Last week I repeated a piece from Nick Gould about what he referred to as not only The Post Office Scandal, but "a legal, political, and ethical" scandal, and also about Corporate Governance.  This week we have a piece from barrister Paul Marshall, who successfully argued that "the way the Post Office acted in bringing the prosecutions was not only an abuse of process (through failure to properly investigate and/or disclose material) it was also an affront to the conscience of the court and therefore justice itself. "

Paul Marshall was invited to address The Queensland Law Society of 4 August, an address entitled "Legal Ethics and Morality: A Modern Case Study, The UK Post Office Scandal".  You can read it in full here on LinkedIn (it looks like a video/audio presentation but is actually more like a series of slides, page by page).

 

I've picked out a few paragraphs.  (... indicates where sentence or phrases have been omitted by me; ---- indicates where paragraphs have been omitted.)  Emphasis (in bold) is mine.

 

I am talking to you today about the most extensive series of miscarriages of justice in recent English history. On 23 April 2021 the Court of Appeal Criminal Division handed-down judgment in 42 appeals.1 39 appellants had their convictions for theft and false accounting quashed. That number of conjoined appeals arising out of similar circumstances is without precedent. .... In journalistic terms, for 20 years the Post Office hijacked the English criminal justice system and used it, essentially, as an instrument of the Post Office. 

It effectively manipulated and withheld important evidence ... and thereby secured the wrongful conviction of hundreds of innocent postmasters for offences of dishonesty. The Post Office continued to withhold evidence from those it had convicted, even after it was aware, from 2013 at the latest, that the convictions it had secured in many cases might be unsafe.

Natural questions arise from what I shall briefly describe; these include what was the motivation that drove the Post Office, from its board downwards, to act as it did? Secondly, how is the risk to the legal system that such conduct represents to be avoided in the future? To my knowledge those questions have not previously been publicly raised, still less answered.

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To put it in concrete terms, between about 2000 and 2014 it seems likely that the Post Office as a prosecuting authority secured more convictions and caused more miscarriages of justice on the basis of flawed, incomplete and misleading evidence than there were executions for witchcraft in England, until the offence of witchcraft was abolished in English law under the Witchcraft Act in 1735. There were around 500 such executions. Present estimates for the number of those prosecuted by the Post Office stand at not far short of a thousand. 

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All legal systems make assumptions about the way in which truth can be elicited. In mediaeval Europe trial by ordeal was commonly believed to deliver truth by divine intervention. We consider ourselves much more sophisticated and believe that the right result is most likely to occur through the competitive presentation of relevant law and facts in which the judge holds the role of neutral umpire. In short, the trial process, whether in civil or criminal law, is a competition in which the supposed outcome is justice.

But competition itself entails certain a priori assumptions. The English theoretical model is that all things being equal, the adversarial process, where facilitated by disinterested robust advocacy on both sides, should deliver the right result.

it was said that a finding for the group claimants would put at risk the Post Office’s existing business model. ...  for the Post Office it was a sort of fight to the death. It is, I believe, for this reason that the Post Office at various points abandoned ordinary norms of litigation conduct, even where those norms reflect conventional ethical standards to which most, if not all, lawyers would publicly subscribe. The most basic of these is the requirement to disclose material in your possession that is adverse to your own case. The Post Office’s non-disclosure was persistent, long-term and systemic.

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One of the many remarkable features of the Post Office scandal is that the Chair and board of the Post Office which had conduct of its ‘scorched-earth’ litigation strategy remain in place. It might be said that the government, as its owner and shareholder, does not act in the way that an ordinary shareholder might ordinarily be expected to act.

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The problem with adversarial model is that while predicated upon the assumption that all things being equal truth will emerge from competing arguments on the law and facts, experience shows that in reality things all-too rarely are equal. Where there is disparity in access to information and evidence, and disparity in resources, the outcome is apt to be skewed. Further, the impartiality of lawyers is easier to state as a theoretical ideal than is sometimes found in practice, especially where the imperative to win assumes particular importance for a client and, by extension, its lawyers. 

The Post Office scandal is a scandal not least because it starkly exposes the difference between the theory of the administration of justice and its practice. It is an extraordinary embarrassment for the English judiciary. This is in part, but not only, because it was within a hair’s breadth of not being discovered.

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EVIDENCE FROM COMPUTERS – SOME PROBLEMS
There is a widely held perception (in truth, a belief) that computers are fundamentally reliable. It is also commonly assumed that most computer errors are readily detectable or the result of user ‘input’ error. That perception and those assumptions, that are false, have received a warmly enthusiastic embrace by a judiciary that sometimes struggles in correctly evaluating evidence, especially technical evidence. .....

In earlier times, before computers became pervasive, the [law] required that evidence from computers, that is technically hearsay, should be subject to proof of the reliability of its source. A change took place from 2000 as the use of computers became more widespread and more people, including some judges, became more familiar with their operation and the fear of unreliability
and inaccurate documents diminished. Law Commission papers recommended to Parliament in 1993 and 1997 that existing statutory formalities ...  should be repealed. Those recommendations were carried into effect.

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The first problem that the Post Office litigation painfully exposes is that judges and lawyers commonly do not understand the propensity of computers to fail – or, rather, to not work as intended. Innocent people went to prison because judges were insufficiently critical of the evidence adduced by the Post Office in its prosecutions and in civil proceedings. They were also institutionally deferential. The Post Office ruthlessly exploited both the imbalance in technical expertise and also the institutional deference of the courts to the Post Office as a respected public institution. A little bit like the manipulation by banks of the LIBOR, it was virtually unimaginable that the Post Office was engaged in ‘gaming’ the entire justice system. Sometimes imagination of the worst is both prudent and necessary. It’s after all why we buy insurance.

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INSTITUTIONAL ETHICAL FAILURE
The thing that most seriously infected the Post Office’s prosecutions and the civil litigation in which it was involved was what I call mendacity – institutional ethical failure, if you will.

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The third aspect of ethical failure by the Post Office is what can be called “the cover-up”.
From the time when I first became interested in the Post Office scandal, in about January 2020, it appeared to me that something was seriously wrong where a national institution had succeeded, as it seemed to me, in manipulating the justice system by withholding from disclosure information about flaws in its Horizon system that were known to it, as was exposed in the Horizon Issues judgment of December 2019.

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There is a requirement for the legal profession in England to ask itself the same question [referring to an earlier case judge: “did no one stand back and ask themselves the simple question ‘is this right’”?] in connection with the Post Office scandal. How did the miscarriage of justice on such a scale over such a long period happen, with so very many lawyers involved? 

A further question that merits an answer is what values do we as lawyers uphold? Justice Owen expressed his perception that there is a danger that the words ‘corporate governance’ may become a mere formula, empty of content. There is the same danger, it would appear, with ‘legal ethics’; what are these in practice and what does it cost to do the right thing? How are values to be balanced and maintained, in the adversarial contest, against the imperative to win – even where for the client, the issue may be existential? These are weighty questions that merit rather more attention than they receive. 

Failing to address them will invite repetition of the Post Office scandal.

[Ends]

Nick Gould also referred to another piece by Richard Moorhead and his team (the Exeter University team I think) including this paragraph:

Lawyers’ obligations to justice
A key question arising from the comments of Mr Justice Fraser are whether the POL’s lawyers put their duty to their clients ahead of their duty to protect the administration of justice and the rule of law and their obligations as officers of the court? 

The approach to the case clearly led to the court being given misleading repeatedly: through pleadings, submissions, evidence, and cross-examination. An issue as regards the lawyers involved, and which warrants further exploration, is whether this may on occasion have been done knowingly or recklessly. The repeated nature of the problems may go some way to counter any argument that all of the problems can be blamed on the clients or their witnesses. 

The breadth of problems with the POL’s case perceived by [ the Judge ] raise a question as to whether the case was being run with a Nelsonian eye to the weaknesses in evidential and factual submissions. How POL’s legal team responded to the POL’s case unravelling over the course of the litigation, especially in the Common Issue and Horizon trials are unknown and also demands exploration.

An interesting question, is whether, as it became apparent that POL (and Fujitsu) witnesses were not being honest, there came a point at which the lawyers involved should have resigned.

"This has been sent it, on behalf of clients, to the President of the Law Society and the Solicitors' Regulatory Authority, which has been asked to investigate 20 years of lawyering misdeeds by POL legal teams.

It is also relevant because Aria Grace Law ( founded by Lindsay Healy) was set up to be, and is, an ethical law firm." (Nick Gould).

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