Neuberger: Advised on failed recusal application
The Post Office’s use of two former senior judges in its defence of the sub-postmaster prosecutions indicates the need for guidance or regulation on what judges do in retirement, it has been argued.
Professor Richard Moorhead said that, without it, ex-judges were left to try and make “common sense” decisions on whether to lend their credibility to those seeking it.
The professor of law and professional ethics at Exeter University is leading the Post Office scandal project being run by the university’s Evidence-based Justice Lab.
He was speaking at a recent event ahead of publication of a book on judges after retirement authored by Dr Patrick O’Brien of Oxford Brookes University and Dr Ben Yong of Durham University.
Advice former Supreme Court president Lord Neuburger supported an ultimately unsuccessful effort in 2019 to have Mr Justice Fraser recuse himself from presiding over the group litigation that lifted the lid on the Post Office’s conduct of the prosecutions.
In his opening statement last year to the inquiry into the scandal, lead counsel Jason Beer KC said the application caused “significant delay and disruption” to the trial, and in refusing permission to appeal Mr Justice Fraser’s refusal, Lord Justice Coulson said the application “never had any substance”.
Former Court of Appeal judge Sir Anthony Hooper was engaged to chair a complaint and mediation scheme which ran between 2013 and 2015, which Professor Moorhead said the Post Office used to tell Parliament and others that it was investigating complaints about the flawed Horizon IT system thoroughly and properly.
Professor Moorhead said the high intellect and human qualities for which both were known raised the question of whether judges “need assistance, guidance, or regulation when it comes to working post-judicial retirement”.
He went on: “If there was a lesson in the dangers of having judges appointed to chair mediation schemes or to advise an organisation with at best a messaniac belief in its own hollow rhetoric, then this is it.
“Good chaps get things badly wrong, particularly when their own status, influence, and pocketbook are in play. Good character. Experience. Wisdom. No one has enough of it. Not least because it is not their wisdom but how they influence others that is important in situations like this.”
The academic suggested it was “very likely” that Sir Anthony was instructed to give the mediation scheme gravitas, while Lord Neuberger was brought in to ensure the board of the Post Office supported the recusal application.
“Whether they should have forseen the risks is up for debate. But it is very likely indeed that their experience, and also their status, was brought to bear to influence others towards the view that the Post Office was doing the right thing.”
The absence of guidance or regulation in this area meant the pair’s decisions to lend their status and influence to the Post Office “depended on their common sense judgment as to whether to take the gig…
“The lesson from this can be boiled down to one point: The sale of that influence should not depend on the common sense of good chaps, if it should be sold at all.”
In his opening statement, Mr Beer said the inquiry would examine “the role of lawyers, some of them senior, the sufficiency of the information they were given, and the extent to which they were relied on, informing the Post Office’s litigation strategy”.
Professor Moorhead said that while the roles of Lord Neuberger and Sir Anthony were “very likely ones of how they and their former offices were exploited”, but they will become little more than a footnote “in what will be, I think, the biggest professional misconduct scandal of our lifetimes”.
NOTE: Professor Moorhead has since learnt that the Post Office did not appoint Sir Anthony and has apologised to him. See here for more.
Without agreeing with the Post Office in any way, I wonder why retired judges should not be treated as Counsel and expected to present any argument that can be advanced. Occasionally, as a lay arbitrator, I have asked Counsel, “Is that what you believe?” The usual (and correct) answer is, “Those are my instructions.” Very telling!
Perhaps it’s a different matter if retired judges associate themselves in such a way as to tar themselves with the same brush. There may be a thin line between reasoned argument and aiding & abetting! The latter may be an offence, but Lord Neuberger would know better than this lay commentator.