On 29 May 2024, I attended a public lecture at the University of Strathclyde about The Post Office/Horizon IT Scandal. The guest lecturer was Professor Richard Moorhead of the University of Exeter. His lecture was entitled “The Post Office and their lawyers: an extraordinary orthodoxy”. The text of Richard’s lecture has been made available on his Substack page.
If you don’t read any further in this blog post, I’ll forgive you. The main purpose of my post is to ensure Richard’s work gets a proper airing (albeit I am confident he doesn’t need much help from me in that regard, given his recent media appearances). I would like to offer some of my own thoughts and reflections though.
I think it’s fair to say almost everyone in the UK will know about The Post Office Scandal by now. For completeness, I’ll quickly note that this scandal stemmed from an, eh, problematic IT system that was foisted on subpostmasters and subpostmistresses for their bookkeeping, followed by the zealous pursuit of anyone found to have a resulting and nigh-on uncheckable cash discrepancy through civil law routes and criminal prosecutions. Innocent people and their families had their lives ruined. The issue bubbled away amid continued coverage in publications like Computer Weekly and Private Eye, and the tide noticeably turned with a legal settlement to a class action brought by subpostmasters against The Post Office. Earlier this year, the scandal was catapulted into the public eye by the ITV drama Mr Bates vs The Post Office. Scottish aspects of the scandal were covered in a BBC Disclosure documentary, “Scotland’s Post Office Scandal”. Legislation to exonerate affected individuals has now been passed for Scotland and England, Wales and Northern Ireland. (A legitimate constitutional law critique of legislating away criminal convictions may be made, as recently covered on the UKCLA blog, but the need to address this gross injustice as promptly and effectively as possible has trumped any such concerns.) There is also the Post Office Horizon IT Inquiry under retired judge Sir Wyn Williams, which has been operating on a statutory basis since 2021.
That abridged version barely does the whole sorry saga justice. It also says nothing of the role of lawyers, other than by implication. Lawyers were involved at many points, including civil legal actions and criminal prosecutions, and also through legal advice provided to The Post Office either by external or in-house lawyers. Lawyers were the primary focus of Richard’s lecture.
When it comes to The Post Office Scandal, pretty much all sympathy must go to the innocent parties who had their lives ruined in this sorry affair. I do however feel a smidgen of sympathy, or perhaps empathy, with some of the solicitors who found themselves entangled with the bulldozer that was this incarnation of The Post Office. The almost inevitable question for anyone who is or has been in practice is: would I have done better? Mercifully, I was never in a situation that was quite as consequential as this scandal, and I never faced a moral quandary as huge as, “Should I disclose something to the other side that will completely undermine my client’s position?” – the answer to that seems screamingly obvious now, but those caught up in the current in many cases went with the flow. In confessional mode, I can think of a couple of instances from my own time in practice where for the good of a transaction there were suggestions that corners might be cut. I’m generally happy with how I fared as a trainee/junior lawyer, but it takes a degree of guts to face up to such situations and give people responses that might seem awkward at the time.
Turning now to my current role as an educator, we need to think about how we make our future lawyers moral. The Post Office Scandal will surely form part of future teaching materials in the UK and beyond. For a few years I have taught students involved with the Strathclyde Law Clinic and other LLB students who have chosen a module called “Ethics, Professionalism and Justice”. We teach students about zealous advocacy and neutral partisanship (that is to say, being a “hired gun”), and the perils thereof. We also introduce potentially counterbalancing ideas around paternalism, to stop a solicitor going off on one and forgetting they fundamentally are an agent of the client (assuming they are an external lawyer – the position of in-house lawyers is of course a little different, and not something I’ll explore here). Hearing Richard speak about the zeal, the secrecy, and the approach to truth adopted by lawyers in what he is calling an “extraordinary orthodoxy” in The Post Office Scandal confirmed to me how important teaching this stuff is. To slip into confessional mode once again, this is content that I am quite happy to teach, but I’ve done so whilst picking up materials prepped by current and former colleagues (a hat-tip to Dr Rhonda Wheate and Professor Donald Nicolson must be made here) and perhaps I have been going through the motions a bit. Those motions are mighty important though. The next time I teach this content, I will absolutely be hammering home the importance of it.
Another thing I would like to mention relates to some of the post-lecture discussion. A lot of this pertained to the Scottish aspects of the scandal. At the event, Richard acknowledged Scots law considerations have not been front and centre of the UK-wide Inquiry. Some of those considerations are covered towards the end of Richard’s lecture, and are also covered in a short, standalone Substack post dedicated to Scotland. One potentially troubling question for Scots is, did our approach to prosecution (which involves The Crown Office as a public prosecutor rather than The Post Office acting as private prosecutor) give greater protection to those affected by the scandal and, if not, why not? Relatedly, what of the continuing disclosure duty on prosecutors, especially when (in Richard’s words) “the balloon went up” that the IT system was not as robust as people were claiming? Some of this was also covered in the aforementioned BBC Disclosure programme.
That is all very interesting and indeed important, but now I’m going to make it a bit more personal. There were a couple of moments in the lecture where it seemed the content was weighing on the lecturer; I stress, this seemed genuine rather than performative. Richard’s professional life also seems to be somewhat busier than it was, with media appearances being coupled with his coverage of an ongoing Inquiry, not to mention his day job. This led me to ask him a pointed question along the lines of, how has this affected you? I hope he was grateful for the question, as it did allow him to offer some personal reflections on it all. It also allows me to return to some ethical considerations for lawyers: sure, a lawyer might try to be a neutral partisan, and endeavour not to be an active reagent, but it is naïve to expect any human to not be affected by that which they interact with. Many years ago I watched a play called “Truth in Translation”, about the interpreters who worked in South Africa’s Truth and Reconciliation Commission. It was a challenging and captivating watch, where members of different language communities reacted in different ways to the content they were presented with (and in turn to each other). After Richard’s lecture, I found myself reflecting on that play, and lawyers might face similar challenges. Sure, we don’t want non-lawyers to feel chewed up by the legal system and legal practice, but we also don’t want that to happen to lawyers.
One final personal point from me, drawing on the writing of Dr Andrew Tickell. Andrew is a lecturer at Glasgow Caledonian University and a commentator in the Scottish press. As a commentator, he has offered welcome coverage of The Post Office Scandal. He attended Richard’s lecture and I enjoyed chatting to him afterwards. I’m going to cast back though to something he penned a little while ago, about the guilt that all lawyers might feel regarding the scandal. I know what he means, and I feel a degree of guilt too. Okay, this is not quite something that happened on my watch, but it certainly happened, and I’m not sure me sharing the odd bit of coverage on social media fully assuages me of any strange sense of guilt. I’m not sure this blog post does either. Be that as it may, I hope it might offer a small step towards whatever atonement I might be seeking.
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