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Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
Poor conduct seems to have been far too widespread among those who acted for the Post Office, both solicitors and barristers, both in-house and external. They cannot all be terrible people but somehow, with big or small steps, they have crossed lines. In so doing, they have contributed to the most widespread miscarriage of justice this country has ever seen.
The Post Office Horizon IT Inquiry is examining how this came about. Most of us like think that we would risk our career in order to meet our ethical obligations, so why have so many apparently ordinary, upright lawyers failed to hold the line?
I suspect a myopic interpretation of acting in the client’s best interests, and not enough focus on integrity. What appears to be in the client’s best interests in the short term may actually be counter to its best interests in the longer term. Being a bit sharp or tough may seem to get a good result but in the examples I discuss below, the lawyers acting for the Post Office would have been truly acting in their client’s best interests if they had advised them against actions which looked good in the short term.
The requirement to act with integrity would have been a good guide for when to give unpopular advice, because when lawyers are too cavalier with their integrity it poses a risk to their clients’ interests in the longer term too. There is the fear, always, that if you are too much of a stickler in this regard you will haemorrhage clients. No doubt some clients will shop around until they find the lawyer who is ready to give the stamp of approval to what they intend to do regardless. So be it.
Witness statements are infinitely variable, but in an adversarial system it is continually tempting, both consciously and unconsciously, to tailor them to suit the case your client wants to present, and therefore – potentially – to mislead by omission or commission. A mark of Post Office civil and criminal litigation was an endemic failure to lay the facts out truthfully in evidence. Time and again misleading witness statements were the foundation of misplaced and aggressive litigation, which the lawyers should have been probing and challenging in their client’s best long-term interests, and in accordance with their own obligation not to mislead the court.
The Bates litigation was the apogee of the Post Office’s approach to litigation, enabled by its lawyers. The ruinous cost of it would have sunk a privately owned company. In the end, all that short-termism brought the Post Office to its knees.
The Post Office developed a tendency to use litigation as a means of trying to prove that the Horizon system was robust. It was thought that high profile trials were ‘test cases’ for this purpose, that they ‘sent out a message’ to all the other sub-postmasters, and to Post Office clients like the Benefits Agency, the banks and the utility companies. Of course, the ostensible legal issues in these ‘test’ cases had nothing to do with whether Horizon was a robust accounting system. The reliability of Horizon was only relevant from an evidential point of view, not because any point of law turned on it.
The idea that these were ‘test cases’ should have been alarming to the lawyers, because the courts are not to be used as a vehicle for a business to try to prove some wider point. Lawyers need to ask themselves why a business wants recourse to the law, and whether the ostensible goal – ie debt recovery or a criminal conviction – is really a cover for something else. This is not just about litigation. When a client wants to use the law to achieve a collateral purpose it is always going to test the lawyer’s integrity, and therefore the client’s long-term best interests.
The Inquiry has heard some toe-curling evidence about the standard contract that all sub-postmasters were required to sign. The contract was enforced on the basis that all losses in the accounts were due to mistakes or theft within the branch, and therefore the sub-postmaster must pay. Lawyers advised on operations and procedures which made enforcement of these provisions super-easy, with minimal process and no factual investigation to speak of. At no stage did the Post Office’s legal strategy appear to recognise that its long-term interests would be better served if it behaved like a trustworthy business partner, rather than a bully.
When a lawyer is enabling a big client to get a ‘good result’ at the expense of others who are less powerful, even if it appears to be legally permissible, the question ought to be is it right?
We do not question whether to take the right path when it is easy to do so, we just do it. So questions of integrity are always hard.
Nowadays, many lawyers are far less powerful than their clients, particularly when they are in-house, but also when those in independent practice are keen to curry favour with a big, important client. What do we expect of lawyers when their clients are powerful enough to ruin their careers?
The year 2013 at the Post Office saw fireworks on this front. Two damming Advices were written by a barrister employed by an external firm. A few months after the Advices were written, the General Counsel at the Post Office disappeared, in circumstances which are not yet clear. Thereafter, instead of a wholesale re-think of the convictions secured over the preceding 13 years, it took another seven years for those convictions to begin to be overturned.
When the Inquiry reaches that part of the story it will be very interesting, because this was a fork in the road. Very evidently, the client took the wrong path, and it seems likely that many lawyers did too.
Both in 2013, and at other junctions, lawyers probably found themselves on the wrong path having taken a bad decision at an earlier stage without confronting it properly at the time. This will obviously have made it much harder to go back to the fork in the road. Lawyers who want to hold to their duty to act with integrity need to constantly keep their guard up, so they take consciously right decisions when they are at the fork in the road.
The Post Office scandal is quite a cautionary tale, and likely to become much more cautionary over the next year or two. It will give lawyers all the ammunition they need to hold firm to the requirement to act with integrity, with examples to help explain to clients why you are giving them unpopular advice in their long-term best interests. The Inquiry report, when it is delivered, should be mandatory reading.
**
Chair of the Bar calls for safeguards against abuse of private prosecutions: In a comment piece for The Guardian, Bar Chair Sam Townend KC said: ‘The Horizon scandal has highlighted the urgent need to repair confidence in the justice system and the vital importance of fairness and access to legal advice and representation. It is important to understand how and why the justice system did not work in the case of over 900 victims of this miscarriage of justice and that will, of course, also include the role played by lawyers. There has been some excellent legal work carried out, but some lawyers will face heavy criticism when the inquiry makes its findings. There could be systemic problems identified and the Bar Council will play its part to ensure they are addressed.’
Bar Council’s confidential Ethical Enquiries Service for barristers: Call the Bar Council’s Ethical Enquiries line on 020 7611 1307 (open 09:15-17:15 Monday-Friday) or email: ethics@barcouncil.org.uk. The Ethics & Practice Hub is the Bar Council’s dedicated online library of ethics documentation: www.barcouncilethics.co.uk
Pictured above: Alan Bates, former sub-postmaster and founder of Justice for Sub-postmasters Alliance, addresses the press on 27 February 2024 after the Business and Trade Committee’s ‘Post Office and Horizon – Compensation follow-up’ inquiry hearing to which he has given evidence.
Flora Page is a barrister at 23ES Chambers, currently acting for sub-postmasters in the Post Office Horizon IT Inquiry. She serves on the Legal Services Board, and is a PhD Candidate at University College London.
Poor conduct seems to have been far too widespread among those who acted for the Post Office, both solicitors and barristers, both in-house and external. They cannot all be terrible people but somehow, with big or small steps, they have crossed lines. In so doing, they have contributed to the most widespread miscarriage of justice this country has ever seen.
The Post Office Horizon IT Inquiry is examining how this came about. Most of us like think that we would risk our career in order to meet our ethical obligations, so why have so many apparently ordinary, upright lawyers failed to hold the line?
I suspect a myopic interpretation of acting in the client’s best interests, and not enough focus on integrity. What appears to be in the client’s best interests in the short term may actually be counter to its best interests in the longer term. Being a bit sharp or tough may seem to get a good result but in the examples I discuss below, the lawyers acting for the Post Office would have been truly acting in their client’s best interests if they had advised them against actions which looked good in the short term.
The requirement to act with integrity would have been a good guide for when to give unpopular advice, because when lawyers are too cavalier with their integrity it poses a risk to their clients’ interests in the longer term too. There is the fear, always, that if you are too much of a stickler in this regard you will haemorrhage clients. No doubt some clients will shop around until they find the lawyer who is ready to give the stamp of approval to what they intend to do regardless. So be it.
Witness statements are infinitely variable, but in an adversarial system it is continually tempting, both consciously and unconsciously, to tailor them to suit the case your client wants to present, and therefore – potentially – to mislead by omission or commission. A mark of Post Office civil and criminal litigation was an endemic failure to lay the facts out truthfully in evidence. Time and again misleading witness statements were the foundation of misplaced and aggressive litigation, which the lawyers should have been probing and challenging in their client’s best long-term interests, and in accordance with their own obligation not to mislead the court.
The Bates litigation was the apogee of the Post Office’s approach to litigation, enabled by its lawyers. The ruinous cost of it would have sunk a privately owned company. In the end, all that short-termism brought the Post Office to its knees.
The Post Office developed a tendency to use litigation as a means of trying to prove that the Horizon system was robust. It was thought that high profile trials were ‘test cases’ for this purpose, that they ‘sent out a message’ to all the other sub-postmasters, and to Post Office clients like the Benefits Agency, the banks and the utility companies. Of course, the ostensible legal issues in these ‘test’ cases had nothing to do with whether Horizon was a robust accounting system. The reliability of Horizon was only relevant from an evidential point of view, not because any point of law turned on it.
The idea that these were ‘test cases’ should have been alarming to the lawyers, because the courts are not to be used as a vehicle for a business to try to prove some wider point. Lawyers need to ask themselves why a business wants recourse to the law, and whether the ostensible goal – ie debt recovery or a criminal conviction – is really a cover for something else. This is not just about litigation. When a client wants to use the law to achieve a collateral purpose it is always going to test the lawyer’s integrity, and therefore the client’s long-term best interests.
The Inquiry has heard some toe-curling evidence about the standard contract that all sub-postmasters were required to sign. The contract was enforced on the basis that all losses in the accounts were due to mistakes or theft within the branch, and therefore the sub-postmaster must pay. Lawyers advised on operations and procedures which made enforcement of these provisions super-easy, with minimal process and no factual investigation to speak of. At no stage did the Post Office’s legal strategy appear to recognise that its long-term interests would be better served if it behaved like a trustworthy business partner, rather than a bully.
When a lawyer is enabling a big client to get a ‘good result’ at the expense of others who are less powerful, even if it appears to be legally permissible, the question ought to be is it right?
We do not question whether to take the right path when it is easy to do so, we just do it. So questions of integrity are always hard.
Nowadays, many lawyers are far less powerful than their clients, particularly when they are in-house, but also when those in independent practice are keen to curry favour with a big, important client. What do we expect of lawyers when their clients are powerful enough to ruin their careers?
The year 2013 at the Post Office saw fireworks on this front. Two damming Advices were written by a barrister employed by an external firm. A few months after the Advices were written, the General Counsel at the Post Office disappeared, in circumstances which are not yet clear. Thereafter, instead of a wholesale re-think of the convictions secured over the preceding 13 years, it took another seven years for those convictions to begin to be overturned.
When the Inquiry reaches that part of the story it will be very interesting, because this was a fork in the road. Very evidently, the client took the wrong path, and it seems likely that many lawyers did too.
Both in 2013, and at other junctions, lawyers probably found themselves on the wrong path having taken a bad decision at an earlier stage without confronting it properly at the time. This will obviously have made it much harder to go back to the fork in the road. Lawyers who want to hold to their duty to act with integrity need to constantly keep their guard up, so they take consciously right decisions when they are at the fork in the road.
The Post Office scandal is quite a cautionary tale, and likely to become much more cautionary over the next year or two. It will give lawyers all the ammunition they need to hold firm to the requirement to act with integrity, with examples to help explain to clients why you are giving them unpopular advice in their long-term best interests. The Inquiry report, when it is delivered, should be mandatory reading.
**
Chair of the Bar calls for safeguards against abuse of private prosecutions: In a comment piece for The Guardian, Bar Chair Sam Townend KC said: ‘The Horizon scandal has highlighted the urgent need to repair confidence in the justice system and the vital importance of fairness and access to legal advice and representation. It is important to understand how and why the justice system did not work in the case of over 900 victims of this miscarriage of justice and that will, of course, also include the role played by lawyers. There has been some excellent legal work carried out, but some lawyers will face heavy criticism when the inquiry makes its findings. There could be systemic problems identified and the Bar Council will play its part to ensure they are addressed.’
Bar Council’s confidential Ethical Enquiries Service for barristers: Call the Bar Council’s Ethical Enquiries line on 020 7611 1307 (open 09:15-17:15 Monday-Friday) or email: ethics@barcouncil.org.uk. The Ethics & Practice Hub is the Bar Council’s dedicated online library of ethics documentation: www.barcouncilethics.co.uk
Pictured above: Alan Bates, former sub-postmaster and founder of Justice for Sub-postmasters Alliance, addresses the press on 27 February 2024 after the Business and Trade Committee’s ‘Post Office and Horizon – Compensation follow-up’ inquiry hearing to which he has given evidence.
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