Watching the cross-examination of lawyer witnesses at the Post Office Horizon IT Inquiry has been instructive. IP Draughts’ impression is that some have been incompetent, some have shown bad judgement, and some have made mistakes. Collectively, they have contributed to the worst miscarriages of justice that he has seen. Not caused. IP Draughts’ current view is that the injustices were primarily caused by:
- senior management and the Board of the Post Office, and the government as sole shareholder, for failing to provide ethical leadership
- senior management and the Board of the Post Office, for failing to create an effective management environment that enabled competent and ethical decision-making across all departments, including the legal and investigation functions
- the court system for not managing computer evidence effectively
- the legal system, for allowing the Post Office to conduct criminal prosecutions of its own (contracted) staff in circumstances where the PO had a conflict of interest and lacked the competence and integrity to perform a prosecution role
This does not excuse the actions of (some of the) Post Office lawyers, but it does help to explain them. The Inquiry is continuing, and we have still to hear from some lawyer witnesses, so a final verdict on the implications for the legal system should be deferred for now. Combining some of what he has heard with his past experience as a lawyer working with business clients (in both in-house and external roles), he has the following thoughts:
- Written advice and opinions should be drafted with one eye out for how they might be misused, or used for a different purpose than intended. He wonders whether there should some kind of rule or best practice in industry that selectively quoting from a legal opinion should never be done unless the full opinion is made available. Perhaps there is a rule, but it has fallen into abeyance.
- The Post Office has its origins in the Civil Service, and IP Draughts wonders whether there is still too much of the Civil Service about the way it operates. He has encountered a certain non-commercial mindset (seen sometimes in universities) where decisions are made by consensus without anyone taking ultimate responsibility for making or implementing the decision. Too many of the witness in the Inquiry (including the in-house lawyer supposedly responsible for criminal prosecutions) have claimed that they were merely a postbox for information, or a facilitator, rather than a decision-maker. Whether or not one accepts this defence, it does seem to IP Draughts that, without clear lines of authority and responsibility, it is too easy for an organisation to take bad decisions because no-one’s job is on the line for the decision.
- Another effect of consensus-itis, as it appears to have operated in the Post Office, is that people have drifted in and drifted out of the decision-making process. Who decides whether a rigorous central record is to be kept of all meetings and documents relating to criminal prosecutions? The in-house criminal lawyer (who claimed he was not a decision-maker), the external criminal lawyers (who initiated the record, but on whose instructions?), the in-house investigators (who sent around an email about not keeping file notes), the in-house civil lawyers (who were concerned about having to disclose these records in civil proceedings), or the external civil lawyers (ditto)? The answer doesn’t seem to have been clear. Or take the example of a senior finance manager, cross-examined at the end of last week, who argued that he had no responsibility to update a note that he had written about the Horizon IT system being robust, once he knew (a few weeks after it was written) that a “substantial” part of it was no longer true. Yet the note was used as a reference source by the Post Office for many years. Again, no-one’s job was on the line for making sure that this important note was still up to date, either as author or as user of the note.
IP Draughts has long been an advocate for placing those who show quiet competence and decency in senior management roles, rather than the more flashy types who seem to dominate public life. In the case of the Post Office, many of the witnesses have come across as quietly incompetent, keeping their head below the parapet and not querying the toxic consensus that caused so much suffering to so many postmasters.
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