The Solicitors Regulation Authority (SRA) is going to have to wait until the end of the Post Office inquiry before it can take formal disciplinary action against any lawyers involved in the scandal, it has revealed.
The news comes as the full ‘Clarke advice’ has been published. This now-infamous legal advice told the Post Office back in 2013 that the convictions it had secured may be unsafe but it only came to light in 2020.
Earlier this year, the SRA obtained an order that the Post Office disclose certain documents and then was named a core participant in the ongoing statutory inquiry run by former High Court judge Sir Wyn Williams.
In an update on its work, the SRA said it was considering the judicial findings in the group civil litigation and also “assessing whether individuals we regulate fulfilled their duties and ensured the prosecutions were carried out fairly and information and documents were disclosed when required”.
But the regulator said the inquiry would not hand over any of the evidence it holds unless the SRA provided an undertaking “which restricts our ability to use the information in our processes”.
It went on: “So we anticipate that we will need to wait to the end of the inquiry process before we can take any further formal steps.”
Sir Wyn has divided his inquiry into seven phases, the second of which only began last week. This deals with the procurement, design, pilot, roll out and modifications of the Horizon system.
He will only start to examine the role of lawyers in phase four, a date for which has not yet been set. Phase three is currently scheduled to end on 10 March 2023.
The inquiry website says only that Sir Wyn “is committed to progressing matters as swiftly as he can and hopes to conclude the process of gathering oral evidence during the course of 2023”.
Simon Clarke was a barrister and senior counsel at Cartwright King, which acted for the Post Office on the private prosecutions it brought. In 2013, he was asked to advise the Post Office on the expert evidence being used in the prosecutions.
Writing on LinkedIn, Paul Marshall – the barrister who discovered the existence of the advice – explained that it was only disclosed in November 2020 “in response to an extensive and detailed inquiry made by my solicitors Aria Grace Law on 27 October 2020, my having discovered in late PO disclosure, to my considerable surprise, that the Post Office had notified its insurers of concerns about Gareth Jenkins’s evidence as long ago as August 2013”.
Dr Gareth Jenkins was used as an expert to testify to the operation and integrity of the Horizon system in many of the cases.
Mr Clarke concluded that Dr Jenkins had failed to comply with his duties to the court, prosecution and defence by failing “to disclose material known to him but which undermines his expert opinion” – specifically bugs in the Horizon system. This “fatally undermined” his credibility as an expert witness.
This meant “there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not. Those defendants remain entitled to have disclosure of that material notwithstanding their now convicted status”. There were ongoing cases as well, but no such disclosures were made.
The reasons for this will be explored by the inquiry.
Mr Marshall said it was likely that this advice contributed to the Post Office’s change in approach in 2014, which saw prosecutions tail off.
Nick Gould, the partner at Aria Grace Law who acted for three of the sub-postmasters in the first tranche of overturned convictions and instructed Mr Marshall, wrote on LinkedIn that his “working out the existence of the Clarke advice was absolutely bloody brilliant… and was a complete and utter game changer”.