Sorry from the professional imaginarium

---

Guest post by Richard Moorhead, professor of law and professional ethics at Exeter University

Moorhead: Lawyers tend to dwell on the failures of others in the Post Office scandal

When, how, and why we say sorry is revealing. As a moment of, or opportunity for, a moment of genuine connection between the wrongdoer and the wronged, it tells us something powerful and important about the person apologising and their attitude to the wrong. Do they make the connection or stumble and fall?

The Post Office inquiry has been littered with apologies, some from lawyers.

There was of course the toe-curling non-apology of Steven Dilley, now a partner at Womble Bond Dickinson.

At the outset of his cross-examination, Julian Blake, counsel to the inquiry, asked Mr Dilley: “Having reflected on the evidence of the inquiry as a whole, is there anything that you would like to say to Mr Castleton or his family?”

Mr Dilley replied: “No there isn’t.”

If you want to understand the context of that, you could do a lot worse than read the human-impact on Lee Castleton’s family of the case Mr Dilley brought.

And there is the ‘I am blameless’ expression of sympathy. Take this example from counsel instructed by Mr Dilley, Richard Morgan, now KC: “Can I also just say one thing? I have tremendous sympathy with what Mr Castleton has gone through, and his family. I can’t say anything more than that, but I quite understand why he’s upset by what’s gone on. I hope that goes some way towards it.”

Literally: I’m sorry you’re upset.

But, compared to Mr Dilley, at least he tried.

And there is a much more genuine attempt to apologise where some personal responsibility is accepted. I have written already about the Warwick Tatford case. His decent first attempt at an apology became even more fulsome when he realised that, actually, he was much more at fault than he had realised.

That last point is interesting because he had all the papers before giving evidence and hadn’t worked out properly what he’d done wrong.

He did this, I believe, because he inhabited his own professional imaginarium.

If you will bear with me using such a pretentious (hello, my friends in academia), Harry Potter-ish (high fives to the inns of court) phrase, allow me to explain.

It’s a well-known psychological trait that all humans think of themselves as better than they really are. And the human brain is adept at finding others to blame for its own misdeeds.

Watch any lawyer currently talking about the Post Office scandal, and they will almost always, with honourable exceptions, dwell on the failings of the Post Office, Fujitsu, the Computer Misuse Act, or the perils of private prosecution.

All of these are important and relevant. What they tend not to do is mention or dwell on the centrality of incompetent or unethical lawyering to the scandal. It’s just not cricket; it’s too painful; there are so many excuses they can think of as to why it might not be the lawyer’s fault, and so on. The professional imaginary also has a professional omertà.

Interestingly, a lawyer not in the public eye ventured forth to offer his own apology for a role in prosecuting sub-postmasters many years ago.

In a self-authored piece, barrister Gareth Roberts noted from “over 10 years ago” a case where the “papers comprised of a number of formal, slightly generic expert statements explaining the way in which the Post Office accounting system was organised” and “an interview in which the sub-postmaster defendant vehemently denied the offence.”

Also, “there was no evidence of what had happened to ‘stolen’ money in the papers, and the defendant was (again from memory) an individual of impeccable character, with a number of years’ experience as a sub-postmaster, with no apparent motive to suddenly take money from the till, I would have read the expert evidence, and accepted on face value the assertion that this individual had dishonestly taken money that didn’t belong to them”.

Notice how he’s imagined his actions and their professional appropriateness. In a related vein, he thinks “that the defendant in my case [probably] entered a plea of guilty”.

“Again, I’m surmising, but this will have been on advice from their own lawyers that the evidence was overwhelming and that a guilty plea would save them from a custodial sentence.

“This is advice I have given to many defendants over the years – and, like every other barrister, it is always delivered with the caveat that an innocent person should never plead guilty if they haven’t done anything wrong, and that I will respect their plea whatever it is.”

He knows that “people usually assume that an innocent person would never plead guilty to an offence they hadn’t committed – but the reality is that faced with the prospect of prison or liberty, many people will hold their nose and accept guilt.

“It’s not something we in the legal profession allow ourselves to dwell on… dwelling too long on the repercussions of our client’s decision or the verdict of the jury would only send you into a spiral of moral confusion.”

The absence of moral confusion gives way to his own grieving: “However, to discover, years later, that you played a part in what is clearly a systemic failure of the criminal justice system, hurts.”

I don’t know about you, but I’m welling up. And Mr Roberts ends his apology with fine words: “The idea that I may have presented evidence before a court of law that was wrong is sickening and I am ashamed of that.”

Apology over, he can indulge rather lengthy passages on ‘what’s wrong with the system’. The blame is very firmly being placed elsewhere.

He has missed the point that often the disclosure failures that he has blamed on the ‘Post Office’ were disclosure failures by barristers and solicitors, some in private practice.

His professional imaginarium is not well served by his lack of knowledge of the facts here. Lawyers failed to disclose. And what’s more, lawyers in private practice and (please sit down at this point if you wear a wig) at least one of these lawyers appears to be a proper barrister who appears to have improperly influenced witness evidence in ways it’s perfectly possible the Post Office knew nothing about.

Blame shifting aside, I wanted everyone to notice in his description above is the very routine nature. People were being processed by a system apparently blind to its own moral confusion.

The failures of the Post Office, he thinks, is not the lawyers’ fault, and he graciously invites victim to the steps of the Royal Courts of Justice to receive the apology that he thinks he will never actually have to make.

“I have no idea of the name of the individual I prosecuted, and will probably never know, but, if I had the chance, I would gladly meet them on the steps of the Royal Courts of Justice and apologise for my own role in this scandal.”

For reasons I can’t quite put my finger on, I’m remembering the hacking enquiry, where Rupert Murdoch issued a very peculiar mea culpa for his newspapers’ hacking misdeeds. And rather than what actually happened, I am picturing Rupert Murdoch inviting Lord Justice Leveson over to News International for Leveson to be told Rupert feels ever so humble.