On Friday, a key document in understanding the Post Office scandal was brought to the surface. It is the 15 October 2013 General Review into the Post Office’s past prosecutions and future prosecution policy, written by Brian Altman KC.
The Review came up almost in passing during former Post Office auditor Chris Gilding’s evidence to the Post Office Horizon IT Inquiry*.
As soon as it had been mentioned, I asked the inquiry to publish the Review, which they kindly did. I have published a searchable version of the Review below this blog post.
What’s the Review about?
Brian Altman KC represented the Post Office in Hamilton v Post Office at the Court of Appeal in 2020/2021, after which 39 Postmasters had their convictions quashed. He also advised the Post Office on multiple occasions during 2013 about their prosecutions of Subpostmasters.
This Review and his other Advices are crucial to this story, given Altman’s expertise and seniority. He was First Senior Treasury Counsel – the country’s top prosecutor – from 2010 to May 2013. The Post Office has repeatedly refused to give me the Altman advices on the grounds of privilege. This is the first time this document has been put in the public domain, though it has been quoted from in published submissions to the Inquiry by Subpostmasters representatives.
In his General Review, Altman writes: ‘The Post Office Ltd (“POL”) has commissioned me to review past practice and make recommendations as to the future approach to the conduct of prosecutions.’
Altman’s terms of reference came from Bond Dickinson LLP, later Womble Bond Dickinson, the firm of solicitors who represented the Post Office so disastrously during the Bates v Post Office civil litigation. Part of those instructions to Altman include ‘Meeting/Reporting to the Post Office Audit Committee/Board.’
Context: the Second Sight interim report and the first Clarke Advice
The reason for the Review can be traced back to Second Sight’s Interim Report dated 8 July 2013. Second Sight are a company run by Ron Warmington and Ian Henderson. They were invited to investigate the complaints of former Subpostmasters about the Post Office Horizon IT system. Their investigation was paid for by the Post Office, but instigated by senior MPs and the Justice for Subpostmasters Alliance. The interim report was signed off by both the Justice for Subpostmasters Alliance and the Post Office and published on the Post Office website. Here is what I had to say about it at the time. I have published the Interim Report below this blog post as I can no longer find it on the Post Office website.
The most important thing in the Second Sight report was the revelation that two IT bugs in the Horizon system had caused problems with account balances. Although the report didn’t say it, this information had come from Gareth Jenkins, the Horizon system architect who worked at Fujitsu, which designed, maintained and operated the Horizon system as part of an outsourcing deal with the Post Office.
On reading Second Sight’s interim report, the barrister Simon Clarke, who was prosecuting Subpostmasters for the Post Office at his firm Cartwright King, raised the alarm. He halted several prosecutions and instigated an immediate review. He discovered Jenkins was the source for Second Sight’s information. The Post Office had been prosecuting Subpostmasters for theft, false accounting and fraud on the basis of Horizon data. Now a formal report had been produced which suggested the data might not be sound. Clarke was concerned there was the slightest possibility that Postmasters might have been given criminal records on the basis of potentially flawed data.
Clarke was asked by the Post Office for advice. On 15 July, after a brief investigation, he delivered his advice. All prosecutions by the Post Office needed to be reviewed, and Gareth Jenkins, who had been used as an expert witness by the Post Office, should never be allowed near a witness box again.
The Post Office asked Cartwright King to start reviewing prosecutions dating back to 1 Jan 2010 (the date at which a new version of Horizon (Horizon Online or HOL or HNG-X) began rollout. This became known as the Cartwright King Sift Review. The parameters for the review have not yet been made public (though they are discussed in the Altman Review). They were essentially to decide if any of the people whose cases had been reviewed should be alerted to problems with Horizon. This would be done by giving them Second Sight’s Interim Report and a document called the Helen Rose report, both of which describe accounting error bugs within Horizon, which may not be obvious to the user. The Helen Rose report eventually surfaced during Bates v Post Office. I published it here.
What’s in Altman’s Review?
Brian Altman was brought in by the Post Office to oversee the Sift Review and basically check Cartwright King was doing the right thing in the right way. Shortly after being instructed, Altman handed the Post Office an Interim Review on 2 August 2013. This has not yet been made public.
The General Review of October 2013 essentially reviews the Cartwright King Sift Review. Altman notes he has met with the Post Office’s in-house legal team, led by Susan Crichton with Rodric Williams and Jarnail Singh in tow (again, all familiar names to those following this disaster). Altman also met with Simon Clarke, Harry Bowyer and their team at Cartwright King. He also saw Andy Parsons at Bond Dickinson (Parsons is a familiar name to those who followed Bates v Post Office – he submitted more than a dozen witness statements to the litigation).
Altman’s initial conclusion was that reviewing prosecutions from 1 Jan 2010 was ‘logical, proportionate and practicable’. That in itself is a contentious point. Altman’s Review notes the date was settled on by Simon Clarke (despite his initial advice demanding all Post Office prosecutions be reviewed) for reasons of ‘proportionality, resourcing, transparency and POL’s reputation’. Hmm. Not sure any thought should be given to reputation if you’re considering whether or not you might have sent innocent people to prison. As it turns out, pre-2010 cases very much should have been reviewed.
Conflicts of Interest
Altman also wonders about the wisdom of Cartwright King reviewing their own prosecutions. He spends several paragraphs setting out his recommendations to ensure that no CK lawyer involved in deciding a case for prosecution should be involved in reviewing it for post-prosecution disclosure. Altman also addresses the potential for Cartwright King’s commercial conflict of interest ‘given CK’s professional relationship with POL and the fact that the very counsel and solicitors making decisions about POL cases are those who rely on CK and POL for this work.’
Altman decides there is no case to answer having ‘seen no evidence other than a professional and independent approach to this review.’
Given how alive Altman was to potential conflicts of interest in 2013 it would be interesting to know what consideration he gave to his own potential conflicts of interest in representing the Post Office at the Court of Appeal in Hamilton, where he was essentially defending actions made on his advice in 2013 (and again, as it transpired, in 2016).
Richard Moorhead, Professor of Legal Ethics at Exeter University has addressed this point before. In his post ‘Independence, a particular professional blindspot‘, Moorhead wonders whether Altman ‘was sufficiently independent to advise and represent in the Hamilton appeals. It adds weight to concerns about the extent to which Altman’s prior involvement in the Post Office case was understood and candidly disclosed before the Court of Appeal in the Hamilton case.’
I have asked Mr Altman if he considered a potential conflict of interest and whether he took advice on the matter. He hasn’t responded.
The case reviews themselves
Altman tots up the reviews already completed and notes a) the numbers don’t add up and b) disclosure has been advised in nine cases already. The former is obviously a concern to Altman, who says ‘the statistical picture is confusing and I have been unable to reconcile the number of cases reviewed by CK with those seen by me. This needs rectification, if CK’s audit trail is to be robust.’
The latter – a minimum of nine post-2010 cases passing the disclosure test – should be a red flag, but it passes without comment.
Altman has plenty more to say about about the forthcoming (and ultimately doomed) Subpostmaster Complaint and Mediation scheme, not least the ‘real dangers’ of letting those with convictions onto the scheme. He notes that Sir Anthony Hooper, the retired Court of Appeal judge hired to oversee the scheme’s working group had ‘suggested (quite firmly) that it might be more appropriate for cases that have been through the courts to be referred to the CCRC [Criminal Cases Review Commission] rather than go through the mediation scheme.’
It turns out that, despite advice, the Post Office had made a policy decision to allow convicted Subpostmasters onto the scheme in order to try to stay in control of the process. If the CCRC took over, the Post Office would have no say in the outcome of any CCRC’s decisions. They would be unable to keep the lid on a brewing scandal. As Altman says ‘If a policy decision has been taken to permit those convicted of crime against POL to participate in the mediation process, then there is no case to refer convicted cases wishing to engage in mediation to the CCRC.’
I wonder whose fingerprints at the Post Office were on that?
The Shredding Advice
On 2 August 2013, less than a month after Simon Clarke issued his initial advice, he was forced to issue another, now known as the Shredding Advice.
Clarke described a weekly conference call which had been set up (in the light of his first advice) between Fujitsu, the Post Office and lawyers involved in prosecuting Subpostmasters to discuss issues with Horizon and how they might impact on future prosecutions.
Clarke reported: ‘The minutes of a previous conference call had been typed and emailed to a number of persons. An instruction was then given that those emails and minutes should be, and have been, destroyed: the word “shredded” was conveyed to me.’ (You can read the full Shredding Advice here).
Altman addresses this in his Review, though is never so vulgar as to use the word shredded. Instead he chooses to say:
‘early teething and “cultural” problems arose as highlighted in Simon Clarke’s 2 August 2013 Advice, and indeed to me in Harry Bowyer’s response to my interim review’
If the shredding of documents was recognised a ‘cultural’ problem within the Post Office (or those dealing with it) in 2013, it suggests the Post Office was already a rogue outfit with some genuine rot at its core. Should it be investigated?
Funny you should ask. This month marks the third anniversary of the criminal inquiry by the Met Police into Post Office and Fujitsu staff (hi Operation Olympos!) As yet no arrests have been made.
How many more bugs?
In his Review, Altman doesn’t seem to express any curiosity about any other potential bugs in Horizon beyond those brought to light by the Second Sight and Rose reports. The obvious questions for any Post Office board/Audit and Risk Committee member reading the Review is how many bugs are there or have there been within the system since its inception and what implications do they have for all Post Office prosecutions? It is a question it seems both Altman and the Post Office deliberately chose not to ask.
It is my understanding that Brian Altman is one of the barristers who has been referred to the Bar Standards Board for investigation over the Post Office Horizon scandal. The BSB was recently found to have improperly paused its investigation into Altman et al by the Legal Services Board.
- To hear more about Chris Gilding’s evidence and what else happened in the first week of Phase 3 of the Inquiry, do listen to Episode 26 of Investigating the Post Office Scandal.
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