Practical suggestions for lawyers from the Post Office

Written by: Ben White
Posted on 09/06/2021
8min read

Every time I read something new about the absolute catastrophe that is what the Post Office did to its colleagues, I think my jaw cannot drop any further. And then, I read something else, some other horrendous detail of this abuse of justice and its long cover up, and it does.

I’ve been in two minds about writing something on what has happened, because so many very eloquent writers and broadcasters have done so, and I feel quite strongly that everyone should read their pieces and I don’t wish to add something mediocre to the noise. But I do have some reflections, and think they may be helpful – accordingly, I have flagged some other content you may find interesting as I go, and included a “further reading” section at the bottom.

If you’d benefit from a recap of the facts, I would suggest this BBC article.

What would I have done differently?

We should all be asking ourselves this; especially, I think, those of us who are practising or non-practising legal professionals.

Personally, I can’t in good conscience say that, if I had been an in-house or external lawyer involved in Post Office matters, I would definitely have done anything different from what those involved have done. That is a terrible thing to write about what is being called the worst ever miscarriage of justice in the UK. But, very many professionals, including lawyers, worked on the Post Office’s prosecutions and subsequent litigation strategy. I personally have met lawyers at the Post Office. They seem like good people. Are they so different from me? They are not.

(To trot out a Second World War cliche, it’s a bit like how we all like to imagine that, had we been in France in 1940, we would definitely have joined the Resistance. Yeah, sure we would have.)

This is no way to defend the very clear wrongdoing that some have committed. But, we should all ask ourselves where we could have found ourselves, had we been working in the Post Office’s legal team.

Good people get drawn into doing, defending, attempting to mitigate, or simply ignoring, terrible things. That is one of the reasons that we should all pause and reflect on what has happened.

Sharing the problem – and running towards it

One thing we are hearing about the Post Office is a culture of secrecy whereby you never quite knew what was happening in another department. I can speculate (it is just speculation) that this was a contributory factor in what happened.

If there is a culture whereby it is not the done thing to express curiosity in what is happening just outside of your narrow remit, it becomes very easy to assume that somebody else will deal with that problem… or it must be ok for a reason you don’t have visibility on… it’s not worth the hassle… there’s an unspoken consequence of prying into others’ business… or you simply never hear about it.

If this sounds familiar, it’s because this sort of behaviour is quite common in bewildering corporate scandals. For example, the famous ignition switch scandal at GM, which led to 13 deaths, and derived from 11 years of missed opportunities to replace a cheap car part. GM’s culture was found to be an important factor in what happened, with teams operating in silos and not sharing crucial information.

We need businesses to create cultures of openness and transparency. The business merits of this are well documented. But it’s also a crucial element in ensuring that the right people have the right information to ensure that the organisation does the right thing.

This does not all fall on the lawyers’ shoulders; indeed, one thing we hear from our in-house lawyer community at Crafty Counsel is that lawyers cannot be expected to be the only “ethical champions” in an organisation, and it’s a serious problem if this is all lumped in the lawyers’ direction.

But for lawyers involved, we must show that curiosity, ask the hard questions, and run towards the problem.

We are there to ask to the hard questions

You simply must listen to Nick Wallis’ podcast on the Post Office sage on the BBC – especially, the most recent episode, “The Reckoning”, which aired on 31 May. Among other new revelations, Wallis includes an anonymised interview with “a senior lawyer close to the process”, evidently someone who is or was an in-house lawyer at the Post Office. Listen to this (from 08.40):

“Everyone in Legal trusted Post Office, and when they said there was nothing wrong with the system, we trusted that to be true… like idiots, we swallowed this rubbish.”

We are there to ask the hard questions. Sometimes, we need to get behind and beyond that answer from “the business”. Because if you don’t, you become part of the problem. To which end…

It’s your integrity, and it’s your problem

The Post Office prosecuted its sub-postmasters at a rate of roughly one a week from 1999 to 2014. We now know (from disclosure in the context of the 2020 Court of Appeal proceedings) that the Post Office received advice from a QC in 2013 that it should have disclosed bugs in the IT system to the sub-postmasters it had prosecuted, that a key prosecution witness was unreliable, and that it had not met its duties as a prosecutor. More on that in Professor Richard Moorhead’s blog post here.

What happened in all the intervening years? The prosecutions slowed and then stopped, but the Post Office continued to defend its past behaviour, in all or part. There was no great voluntary reckoning with the past, that has been forced from the 2019 civil judgement and this year’s Court of Appeal ruling.

It’s a great example of how the cover up is often worse for those involved than the crime itself. I have no doubt that the lawyers involved must have believed that the Post Office’s litigation strategy and refusal to come to terms with what it had done was in the interests of the organisation. We all have a tendency to identify with “our side” and to assume the worst of “the other side”. I’ve been there, in a professional context, in small or big ways.

What do the lawyers at Post Office make of Paula Vennells’ letter to the BEIS Select Committee of 20 June 2020? She was asked: What checks were in place to make sure prosecutions were based on sound evidence?

Paragraph 26: “First, I played no role in investigatory or prosecutorial decisions or in the conduct of prosecutions. There was full separation of powers, with the team responsible for prosecutions reporting to the General Counsel. It would have been inappropriate for me to involve myself in operational decisions made on a case by case basis.”

Paragraph 27: “Second, I am not a lawyer. Post Office relied on lawyers (both internal and external) for advice in relation to criminal matters, and lawyers held the operational responsibility for investigating and prosecuting criminal misconduct. My main role, and the role of the rest of the Board, was to set policy, informed by legal advice.“

Lawyers (internal and external) often rely on the position that we are simply the advisers, and it is the client who makes the decision. If that position gives you comfort, please read the above paragraphs again.

Talk about throwing the lawyers under the bus. Richard Moorhead has more on that in our interview with him below.

Don’t get tainted

I think about the Post Office scandal in the context of all those officials who served in the Trump administration who apparently thought they could moderate and temper what was happening in the interests of the greater good. They could not. Now they have to explain their conduct, their association with the administration, what they enabled.

I can think of many reasons lawyers involved in the Post Office may have concluded that they could help bring things to a better outcome, manage the process, mitigate, and serve the greater good. Now they have to explain their conduct, their association with the administration, what they enabled.

There are many reasons to do the right thing. One is self-preservation.

Being a business partner is necessary but not sufficient

I leave you with this piece from Paul Gilbert.

“I do not see any urgency in the legal profession for General Counsel to assert their primary purpose. Instead, we have legitimised an institutional complacency that seems to put commercial expediency first. We have created environments where we have to be liked in order to thrive. We value relationships over making a difference, and all too often mental fatigue and burnout are an occupational hazard where the quality of decision-making may have been compromised.”

Yes, being a “business partner” is important. We have other purposes also.

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