THE POST OFFICE SCANDAL – exploring the role of Solicitors.

A question that I frequently ask myself when considering the role of solicitors in the PO Scandal is whether, and if so to what extent, are the lawyers the tail which is wagging the dog? What I mean is this: were the Post Office’s various internal and external solicitors actually driving and determining their client’s policy on the criminal prosecutions and civil claims? I  return to this somewhat vexed question later.

I will just focus on solicitors – as opposed to barristers and judges – because different regulatory and practising guidelines apply to each.

SRA Code of Conduct

Solicitors, whether operating internally or in private practice, are bound by the code of conduct (‘Code’) as set by the Solicitor Regulation Authority (SRA). Solicitors must exercise judgment within the context of their roles, responsibilities, and the nature of their clients, which can include employers and other parties. The Code lays out the professional standards expected of individuals authorised to provide legal services, and mandates solicitors to act with integrity, uphold the rule of law, and ensure the proper administration of justice.

Notably, the SRA’s emphasis on not misleading or being complicit in misleading the court or clients forms a foundational pillar of legal ethics, and crucially, in-house solicitors are bound by the same conduct rules as those in private practice.

On its website, the SRA has the following mission statement about its role, which is to protect the public in two ways:-

• by ensuring that Solicitors meet high standards; and
• by acting when risks are identified.

Looking at the evidence being given by Solicitors at the PO Horizon IT Inquiry, it is unarguable that many are dramatically failing in the first category. Take for example the collective amnesia when giving evidence, or worse still, claiming not to have read emails that exposed the fact that Horizon was bug-ridden and was not fit for purpose from as long ago as 2011. Head of criminal law at the Post Office Solicitor Jarnail Singh described himself as ‘a letterbox’, meaning that he claimed not to have read emails, but simply passed them on to the relevant third party to deal with. Even if he is telling the truth, which is already a considerable stretch, how does that come anywhere near the required ‘high standards’ expected of solicitors?

The SRA’s public position on the second limb is that they are awaiting the results of the Inquiry. As this is likely to be 18 months away, waiting for that period of time would seem to be flying in the face of the requirement to act when risks are identified.

SRA Principles

The SRA also delineates a set of principles that guide the professional conduct of solicitors. These principles underscore the importance of upholding the rule of law, acting with integrity, and maintaining the highest standards of professional behaviour in all legal dealings.

In the context of the Post Office scandal, and to take potentially the most serious issue – namely solicitors giving advice in support of the systematic and widespread non-disclosure of documents  – such behaviour clearly and flagrantly breached these principles and therefore should elicit disciplinary action. But the problem goes far beyond this one example as demonstrated below.

1. Upholding the Rule of Law and Proper Administration of Justice

Lawyers have a fundamental duty to act in a way that upholds the rule of law and the proper administration of justice. Suppressing evidence that could exonerate an accused, as Post Office solicitors have systematically done, directly contravenes this duty. The Code stipulates, ‘Solicitors have a fundamental duty to act in a way that upholds justice.‘

Although the courts were not initially involved when the document suppression occurred, the legal advice that was given undoubtedly impacted upon the course of future legal processes, detrimentally affecting the outcomes for accused individuals, most of whom were innocent.

2. Maintaining Public Trust

Solicitors are entrusted with a duty to conduct themselves in ways that preserve and enhance the trust which the public has in the legal system.

The SRA explicitly states, “Should the Principles come into conflict, those which safeguard the wider public interest, such as the rule of law and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services, take precedence over an individual client’s interests.” This guidance underscores the priority that must be given to maintaining the integrity of the legal system over the narrower interests of any client.

There is overwhelming evidence from the evidence that has come out at the Inquiry that very many solicitors completely ignored this principle, taking the view that it was more important to follow the mandate from PO management of protecting the client and its reputation and brand come what may, at the cost of dereliction of their professional duties.

To take but one example, in the landmark Bates case – which 555 sub-postmasters joined, and which famously resulted in them receiving an average token payment of only £20,000 per head – the solicitors advising the Post Office played too prominent a role in the direction of travel of the case. They adopted the most hostile and aggressive approach that they could in the case with a view not just to defending their client, but to crushing and destroying their opponents in the litigation. The strategy was to: “stretch out the process in the hope that the funder decides it is too costly to pursue the litigation and give up”. That tactic worked a treat and it’s exactly what happened. But was it ethical conduct that would maintain and preserve public trust in the legal system.

5. Acting with Integrity

The SRA mandates that solicitors must uphold the highest standards of integrity in all their professional dealings. This directive forms a core part of a solicitor’s responsibility and is pivotal in safeguarding the fairness and justice of legal proceedings. By advising their client to withhold evidence, the Post Office’s solicitors breached this rule, as the suppression of evidence misled stakeholders and affected parties about the validity of the accusations against the sub-postmasters.

In Solicitors Regulation Authority v Malins [2018] EWCA Civ 366, the Court of Appeal examined issues of integrity and dishonesty among solicitors.  Jackson LJ considered honesty to be “a basic moral quality which is expected of all members of society”, and integrity was “a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members”.

Notwithstanding this basic and fundamental requirement, the Post Office top brass rode roughshod over it. The case of Paula Vennells’ treatment of general counsel Susan Crighton is illustrative.  Unhappy that Crighton was not managing independent IT experts Second Sight, and that their report might damage the Post Office in that it would have let the cat out of the bag about the fact that Horizon didn’t work, she wrote about Crighton that she was: “possibly more loyal to her professional conduct requirements and put her integrity as a lawyer above the interests of the business”.  Difficult though this undoubtedly was for Crighton, she should have held her ground to ensure compliance with the regulatory requirements that she was bound by.

  Acting in Clients’ Best Interests

“While solicitors must prioritise their clients’ interests, these principles also recognise broader considerations, such as maintaining public confidence and ensuring a safe and effective legal service market.”

The point here is that while solicitors must act in the best interests of their clients, they must also balance this with their duties to the court and the wider public interest.

This principle of balancing duties is exemplified in the landmark case of Arthur J S Hall v Simons [2002] 1 AC 615. Lord Hoffman commented on the divided loyalties of lawyers during litigation stating:

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice…Sometimes the performance of these duties to the court may annoy the client”.

These duties basically went out of the window for Post Office solicitors. The default position, across the board, seems to have been to defend their client at all costs.

SRA’s Response to the Post Office Scandal: Enforcement Strategy and Actions

Evidence Gathering and Review

In their latest statement Update on the Solicitors Regulation Authority investigation on the Post Office Horizon IT scandal (19 January 2024) SRA states that “We have been gathering evidence through various means. This includes calling in evidence under our own powers, obtaining a court order requiring the Post Office/Royal Mail Group to provide us with relevant documents, and reviewing the information shared publicly through the statutory inquiry.”  To me, that smacks of talking a good game but it looks and feels very much like a watching brief – as opposed to a strong regulatory position of enforcement against wrongdoers.

Regulatory Actions and Sanctions

In terms of disciplinary actions, the SRA possesses a wide array of powers to enforce standards including imposing fines of up to £25,000 on solicitors and law firms, enacting practice restrictions, and, in cases of severe misconduct, referring matters to the independent Solicitors Disciplinary Tribunal, which can issue unlimited fines and suspend or strike off solicitors.

SRA’s Enforcement and Timing

So although it clearly has the powers, the SRA has stated its intent to wait for the completion of the full inquiry before taking decisive action as they put it ‘to ensure that any measures taken are both appropriate and effective’. I regard this as an unfortunate and wholly unsatisfactory stance.

Conclusions

Lord Chancellor Alex Chalk has stated publicly as recently as 1st May: “I am immensely proud of the reputation that our legal sector has around the world”. I believe the exact opposite is true, and that the Post Office scandal has tarnished the reputation of solicitors (and the entire legal profession) on a massive scale.

As regards the SRA’s waiting game approach, most commentators and the general public think that if clear wrongdoing has been established on the part of any solicitors, why delay matters, as many of those these breaching lawyers are still in practice, plying their trade?

I agree: it is unarguable, from a public perspective, that wrongdoers need to be made an example of, and waiting for the findings of the Inquiry – which will be another 18 months at least – is not going to instil the confidence of members of the public of a profession that has been so terribly (and justifiably) hammered due to the actions (and misconduct) of the army of Post Office solicitors. Following a closer analysis of the relevant sections of the Code and the SRA principles as outlined above, as solicitors – and I am speaking as one – we are also under a higher duty than lay people.

In light of this, sanctions should most definitely follow. Indeed, if they don’t, the usual questions will be asked about whether the rules are fit for purpose, and whether enforcement on the part of the SRA is rigorous enough.

I now return to the question that I posed at the outset.  Is this a case of the tail (the lawyers) wagging the dog (the Post Office Board)? I am firmly of the view that this is indeed the case, and that solicitors (and barristers) were determining and guiding legal strategy to prosecute and defend civil claims from innocent sub-postmasters, the added plus for them being the eye-watering fees that adopting such tactics would garner. If my theory is correct, which I will leave it to the reader to decide, regrettably, lawyers in general – with solicitors leading the charge – are very much in the mix in the category of bad actors who have dragged the Post Office down, and have contributed the lives of thousands of innocent sub-postmasters and their families being destroyed.