Brian Altman KC advised the Post Office on the Horizon scandal from 2013 right up until 2021. He has, in his career, held the title of First Senior Treasury counsel – the most senior prosecution barrister in England.
Brian Altman’s advice to the Post Office is privileged, which means that had the Post Office chosen not to reveal it, no court or Inquiry could demand it, unless there were exceptional circumstances.
Thankfully, and presumably because it is in the public interest, the Post Office has agreed to waive privilege on all “relevant” documents pertaining to the scandal, and the Altman advices fall squarely into that definition.
In the second day of his opening statement to the inquiry, Jason Beer KC described just how involved Altman got in deciding whether or not the Post Office had miscarriages of justice on its hands.
CK Sift Review
The first review of Post Office prosecutions was carried out (secretly) in 2013 by Cartwright King, a law firm which also prosecuted Subpostmasters on behalf of the Post Office. It was called the CK Sift Review.
We were told this week that Altman considered the CK Sift Review a possible conflict of interest as (in Beer’s words) they were “essentially marking their own homework”, but Altman decided “there is benefit in Cartwright King and its internal counsel identifying and engaging in the review of impacted cases, as they are familiar with their case files and intimate with the process.”
He went on to say: “But it seems to me it will be wise for me to dip sample some of their work in due course, and I may have to devise some criteria of my own for those cases I feel I should review personally.”
Beer goes on to describe just how involved Altman got in deciding whether or not the PO may or may not have miscarriages of justice on its hands, who should be told and when.
Then, it seems Altman got involved with the Mediation Scheme which was announced jointly between the Post Office, the Justice for Subpostmasters Alliance and campaigning MPs as a way for JFSA members (convicted of criminal offences or not) to have their cases investigated and be mediated.
On 9 September 2013, with the scheme only open a few days, Altman spoke to the Post Office, and this is note of that consultation:
“[Mr Altman] advised considerable caution in relation to mediation cases involving previously convicted individuals (Seema Misra has already indicated an intention to be within the scheme). The concern is that lawyers acting for those individuals may be using the scheme to obtain information which they would not normally be entitled to in order to pursue an appeal.”
This, I think, is very serious indeed. The Post Office had an unequivocal obligation to give all and any material to convicted individuals if it might cast doubt on the safety of their conviction. The Subpostmasters’ lawyers should not need to be pursuing it, and the Post Office certainly shouldn’t be doing what it could to keep it hidden.
Beer says the inquiry will look into all this.
Whether to keep prosecuting
“By late 2013 Mr Altman was also advising the Post Office on their investigative or prosecutorial roles. On 19 December he provided written advice entitled “Review of Post Office Limited Prosecution Role”… In the advice, Mr Altman concluded that he had seen no evidence to suggest that Post Office exercised its investigations and prosecution functions in anything other than a well organised, structured and efficient manner, through an expert and dedicated team of in-house investigators and lawyers supported by Cartwright King Solicitors and their in-house counsel, as well as external counsel and agents when required. He concluded that there was no good reason to recommend that the Post Office should discontinue its prosecution role.”
I am sure he would make a comment to the contrary, but I don’t see how this didn’t create a conflict of interest when Altman took on the role of acting for the Post Office in the 2021 Hamilton and others v Post Office case. He was defending decisions and outcomes he advised on without, as far as I am aware, fully disclosing his past involvement to the court.
Whether theft is worse than false accounting
Beer then went into an internal legal debate within the Post Office. Cartwright King had apparently asserted that theft and false accounting were equivalent offences, yet Sir Anthony Hooper, a retired Court of Appeal Judge working for the Post Office mediation scheme working group had told Second Sight that false accounting was a lesser charge.
Altman wanted to make sure the Post Office’s position on the matter was “defensible” and concluded “the so-called ‘equality’ of the offences is an unnecessary and unprofitable focal point of attention.”
“What does not appear is a blunt and unequivocal statement to the effect that, where both theft and false accounting are charged for the same conduct, the charges of false accounting may be seen as less serious, which appears to be exactly the point that Second Sight and Sir Anthony Hooper were both identifying. Also not addressed is whether, in practice, an innocent person may be more likely to plead to what may be perceived as a less serious charge and whether barristers and solicitors are likely to advise their clients that false accounting is, in practice, less likely to result in a prison sentence.”
Then Beer deals with the Swift Review and Post Office Chairman Tim Parker’s decision to hide it from the Post Office Board.
As a result of the Swift Review Altman was invited back in again to find out whether Swift’s assertion that allegations the Post Office went about leveraging unevidenced theft charges in order to bargain guilty false accounting pleas out of Subpostmasters really was “a stain on the reputation of the business”.
Altman reviewed eight high profile convictions and concluded:
“Not only is there no evidence of such a policy, there is positive evidence that such that each case was approached both by internal and external lawyers professionally and with propriety and, unquestionably, case specifically…. Not only have I found absolutely no evidence of the existence of any such policy, I have also not discovered any evidence in the cases that I have been invited to review that theft (or fraud for that matter) was charged without any proper basis to do so and/or in order only to encourage or influence guilty pleas to offences of false accounting.”
From memory (I’ll find the document UPDATE: I have found it and uploaded it below) I am pretty sure I have seen a document whereby a Post Office prosecutor threatens to slap a theft charge on a false accounting charge if the Postmasters being prosecuted doesn’t indicate they’ll plead guilty. Not sure how ‘proper’ that was.
Notwithstanding that – given the Court of Appeal’s ruling in April 2021, Altman’s judgment in the light of the Swift review is catastrophically wrong. It does, however serve both the Post Office’s and Altman’s interest. Coincidentally.
Bates v Post Office
Beer then goes to some advice Altman provided to the Post Office when it was in the process of heading towards settling the High Court action. This “addressed the risk to the safety of convictions if Post Office entered into settlement with any of the claimants in the Group Litigation. The advice, dated 17 July 2019 (ie after the Post Office failed to get the judge recused) was as follows:
- Any admission of wrongdoing by the Post Office to convicted Claimants was to be avoided “as is any public apology that risks misinterpretation or the implication of an admission of fault”.
- There was “a real risk of Post Office taking an approach which could be interpreted as incongruous with the processes it instituted as a prosecutor”.
- Settlement would invite critical scrutiny not only of Post Office’s prosecution function but also of its prosecutorial decision making function during the pre-trial and trial processes.
- Settling or seeking to settle “may be viewed as a sign of weakness, a lack of confidence in both its civil and criminal cases by the convicted claimants, as well as the CCRC, who may then be encouraged to investigate ‘the technical aspects’ of the case heard the Horizon Issues Trial evidence and seek to appeal or to make a reference, which will potentially open the settlement agreement (or the rationale underlying it) to consideration or questioning by the Court of Appeal as part of any appeal/reference hearing.”
- There was, in Mr Altman’s judgment, “some risk to the safety of convictions of including convicted claimants in any settlement agreement or package”.
This is the internal Post Office document threatening a theft charge if a tranche of Subpostmasters dare plead innocent to false accounting:
Read the full transcript or watch the video of the hearing on the inquiry website.
Related post: Nailing Sir Peter Fraser – the legal hit squad
Have a look at Professor Richard Moorhead’s take on this.
Solicitors Regulation Authority press release about the Post Office’s in house team.
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