Working Paper 5: The Perils of Independent Review, The Swift and Knight Review
30 Pages Posted: 2 Nov 2022 Last revised: 15 Nov 2022
Date Written: October 26, 2022
Abstract
This paper analyses an independent review conducted by two public law barristers, one of who was previously the Treasury Devil and is now a High Court judge. It identifies a number of problems with the review: 1. The choice of two public law barristers on what was predominantly, insofar as it was a legal matter at all, a review associated with questions of criminal justice not public law. 2. The limited evidence base and legal framing of the review, leading to a report that was arguably less objective than it might have been. 3. As a particular example, the failure to speak to Sir Anthony Hooper, Chairman of the PO’s Mediation Scheme are worthy of probing. His exclusion is concerning and the reasoning given for it is unconvincing. 4. Particular concerns about the evidence of one of the review’s informants and the apparent identification of potentially misleading evidence by that witness. 5. The ways in which the identification of fundamental problems with the operation of the Horizon system were discussed and handed back to PO for action. 6. The failure to consider the full import of a tainted position on remote access, which had led PO to mislead Parliament and others. 7. A failure to spot conflict of interest and/or independence problems in external lawyers relied upon to conduct and/or supervise criminal prosecution review work.
The paper also identifies: 8. Ways in which the review, if accurate, appears to show the involvement in the review work of 2013-105 (and possibly beyond that) of leading counsel at the Hamilton appeals as more extensive than disclosed to the Court of Appeal. If Swift is accurate, there is the possibility that the Court of Appeal was misled about that involvement. 9. The way the review work was reported to Parliament appears to be, at least arguably, misleading. It suggested there was no systematic problem when the report’s conclusions suggested both specific and systematic problems with the operation of Horizon. The way in which the Review’s findings were reported to Government require investigation. 10. The Chairman, Tim Parker’s, decision not to show the review report to his board is alleged to have been on the advice of PO General Counsel, Jane Macloed. If correct, our view is that this advice was probably either wrong or given in a situation of conflict of interest. 11. The Swift Review revealed to the PO Chairman that secret remote access to Horizon was possible in 2016. The Chairman discussed the review with PO’s General Counsel (Macloed). The Bates litigation, roundly criticised by the High Court judge dealing with it for being misleading, was founded in part, until 2019, on the basis that secret remote access was not possible. Given Macloed and Parker were involved in the litigation, and it appears to have been run on an incorrect basis that was or ought to have been known to them, the extent of that involvement it needs investigation.
Keywords: Lawyers ethics, professional responsibility, corporate investigations, independent investigations, corporate governance
JEL Classification: K20, K41
Suggested Citation: Suggested Citation