2023v14, Sunday: A little. Late.

It’s nice to see a government at least pretend to take fraud seriously. It’d be nicer for them actually to do so.

Photo by Sigmund on Unsplash

It’s almost 20 years ago that a senior police officer handed me a sheet of paper. On it was a table showing the number of specialist fraud officers in every police force in England and Wales.

Adding up the columns, the total force strength of fraud investigators didn’t even break four figures. Out of 100,000-plus officers, not even a single percentage point.

I remember writing about it for the BBC at the time. And then about the Fraud Act and Fraud Review, two years later. I left the BBC in 2007, but stayed involved in investigating and preventing fraud first at the Financial Services Authority and then in two international banks. And now, of course, as a barrister dealing both with civil and criminal fraud is still part of my daily life.

Throughout those two decades, fraud’s only got bigger. More common. Easier for fraudsters. More damaging for individuals. More prevalent. More endemic. More expensive.

One thing hasn’t changed, though.

We – that is, the UK government – still doesn’t take it seriously.

Grand plans

I’m writing this now a week or so after the very, very long-awaited Fraud Strategy was published.

It talks tough. Several hundred new officers, in a new National Fraud Squad. Making fraud an official policing priority. Using the intelligence community. Leading the world. New reporting mechanisms.

Great. Big stuff.

The scale of it

But let’s put it in context.

Getting on for half of reported crime is fraud.

The latest Economic Crime Survey fraud and corruption review (I’ll resist the urge to comment on the fact that this in fact dates back from 2020 – published this month with no word as to why we’ve had to wait three years, although of course the numbers are starkly embarrassing) says one in five businesses had suffered from fraud in the previous three years – and that’s not counting the hundreds of thousands of individuals who’ve lost sums ranging from small but painful, to life-changing and catastrophic. (The ECS notes that fraud accounted for 41% of recorded crime in the year ending September 2022, with 6% of adults being a victim. UK Finance’s fraud report gives a further small flavour of this.)

Not to mention what is to my mind one of the greatest harms caused by rampant fraud: the wholesale destruction of the trust on which any properly-functioning economy rests. The faith – let’s call it that – that on the whole, when you do business with someone, you don’t have to assume they’re going to try to rip you off.

So even with these new numbers – and ignoring the parlous state of the criminal justice system, which gets no new resources here to enable anyone investigated actually to be successfully prosecuted amid crumbling courts, staff worked to tears, and lawyers often paid less (when you count up the hours and then honestly account for expenses) than minimum wage – we’re still staring at something which barely exceeds that single percentage point. If it exceeds it at all.

This isn’t taking fraud seriously. This is doing the bare minimum. It’s buzzword bingo. Not real solutions.

If not now, then

I’m not saying this isn’t worth doing. It is. Let’s not let the perfect be the enemy of the “at least it’s something”. If the alternative is nothing, I’ll take this.

But it’s astonishingly uncreative. Unambitious. People have been talking, shouting even, about the effective decriminalisation of fraud for two decades. There are lots of ideas, from better prosecution techniques, to public-private partnerships, to incentivising private sector asset recovery, to … well, many more. Lip service is paid in the Strategy, but that’s as far as it goes. There’s scarce sign that anyone’s been listening.

And worst of all: it’s hard to see anything here (other than the stuff about online harms – because, of course, those didn’t exist in the same way in 2004) that couldn’t have been done at any point during these past two decades or so. If only someone had had the will. If only someone had cared.

Had fraud started being taken seriously back then, as it is in many other countries, we’d be in a very different place. Instead, we’ve had inertia, spinning wheels, – no, worse: neglect. While fraudsters have had 20 years to get better. To learn. To evolve.

We’re starting now, perhaps. At long, long last. But from way behind the line.

Who cares?

And that’s deliberate political neglect.

Starting with Labour, to be sure: I remember sitting round a table in the Law Officers’ Department as the Fraud Review was launched, a seat or two along from the great Joshua Rozenberg, as he and I and others hammered away at the abject lack of meaningful resources being offered to confront what, even then, was clearly a grossly metastasizing problem. But the past 13 years of neglect has been the Tories. Ignoring the problem. Even when the crime figures finally showed just how huge it really was.

I don’t know why this has been such an also-ran. It always seemed to me like an open goal, popularity-wise: after all, who doesn’t have a relative, or a friend, or a neighbour, who’s been left with empty pockets, or cleaned-out bank accounts, or a gaping hole in their pension – and, even worse, that mortifying (and I stress wholly unfair) sense that since nobody’s taking it seriously, and since they must have been a mug to get taken in, somehow it must be partly their fault?

So I’ll take what’s on offer. But I’d love to see someone make this an issue when the next election rolls round. Surely it’s a vote-winner?

But then, what do I know. I’m just a lawyer.

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2022vi1, Wednesday: The question that comes too late.

We’ve all kicked ourselves on occasion for missing the chance to ask about the thing that’s really important. Although sometimes the answer is too obvious for words…

Photo by Marcel Strauß on Unsplash

Sometimes it’s a few seconds. Sometimes half an hour. And sometimes it’s not till the following day.

But I can’t be alone – either among reporters (my former trade) or advocates (my current one) – in, far too often, having the lightbulb moment just too late. When an excellent question comes to mind only after you’ve put down the phone, or walked out the door, or watched the witness exit the box.

In the latter case, of course, a well-planned, well-prepped cross-examination should minimise the risk – although it does still happen.  (And as anyone who’s done this will testify, and frankly any barrister who says it’s never happened to them is a liar, the bigger risk is often asking one question too many than one too few.)

In a journalistic environment there’s sometimes a second bite at the cherry. A follow-up call. Or someone else you can talk to.

But it happens.

It’s now a decade and a half since I jacked in journalism, it having lost its remaining lustre for me following the Hutton Inquiry and the BBC’s retreat to pre-emptive, cowardly cringe. (And many too many editorial meetings where senior editors would try to force my desk to run a story which I said was – put as politely as I felt able – complete bollocks, because it had “a great top line”.) I asked a lot of hard questions during my time. But it wasn’t till after I left that I came across the concept of the “pre-mortem”, and realised that all the politicians, and businesspeople, and others that I talked to, as they sold some grand scheme or gold-plated plan, should have been confronted with a really simple question.

“What could go wrong with this?” 


“What are the downsides?”

I know. They’d probably swerve the answer. Or I’d never get offered an interview again.

But it’s a critical question. Anyone planning something new with ramifications for people other than themselves who hasn’t thought, deeply and scarily, about what the downsides are, where the blowback might come from, ought never to be allowed to make decisions affecting anyone else. Ever again. Similarly, anyone who denies that any exist is immediately either a fool or a liar.

Talking about fools and liars… a similar thought has kept striking me as stories about letters to the 1922 Committee proliferated. Letters which say: Boris Johnson is no longer fit to be Prime Minister.

(It’ll be even more pressing once the results of the no-confidence vote hurriedly scheduled for today come in around 9pm or thereabouts.)

I haven’t the time, the energy or the self-loathing to read most of those letters, not in any depth or volume. (Jesse Norman’s being a notable and laudable exception, not least since – as David Allen Green points out – it trespasses into policy failings as well as political quagmires.) So some of them may answer this question.

But I can’t help wanting to ask those writing these more-in-sorrow-than-in-anger missives:

Set aside Partygate. Set aside Sue Gray, and the Met and all the sound and fury. If you’re saying Johnson isn’t fit for the office, that’s not just about what he’s done. It’s about who he is. 

So, simply put: what do you know now about him that you didn’t know when you made him party leader – and backed him for PM? What, really, is new?

Answers on a postcard. Speculating about how big a postcard is required is an exercise left for the reader.

(Incidentally, I know it’s been months since I last wrote. A lot has happened since then. I’m not quite ready to write about it. Nearly. But not quite. Bear with me. Please?)

2022ii6, Sunday: Sheer dishonesty.

Politicians shade the truth. Fact of life. But that’s different from deliberately seeking to mislead. Option one is excusable. Option two isn’t. Kwasi Kwarteng: I’m looking at you.

Lord Agnew, demonstrating what honour in office means: “Given that I’m the minister for counter-fraud, it seems a little dishonest to stay on in that role if I’m incapable of doing it properly, let alone defending our track record.” Screenshot from the House of Lords broadcast of his speech.

Expecting politicians to be wholly straightforward is a mug’s game.

That’s not to parrot the common canard about them “all being the same”, or that “you can’t trust any of them”. I wholly disagree with that. In my experience, it usually comes from someone with a strong affiliation, or at least voting tradition, in favour of one party. If that party causes them disillusion, this is what you tell yourself to justify not even considering voting for someone else.

No. It’s that politics, and in some ways still more government, can’t work if you’re telling the whole truth all the time. I expect my political leaders sometimes to shade things. If you’re negotiating a treaty, you can’t do that in the blaze of sunlight, for instance.

But shading the truth and outright lying, bullshitting or gaslighting are wholly different. Breathtaking intellectual dishonesty and taking the voters for mugs falls firmly in the second category. Politicians who engage in option one can still deserve trust. Those who exploit option two have sacrificed it. Usually for ever. And don’t deserve ever to occupy a public office, ever again.

Kwasi Kwarteng, the Business Secretary, is now firmly in box two.

Why am I being so dismissive of him? Because he’s just said something which is both flagrantly intellectually dishonest, and falls squarely in one of those few areas where I can actually boast some specialist knowledge.

I don’t watch Sunday morning political TV. Life really is too short. But according to Politico, which for its faults is usually accurate in stuff like this, he was asked this morning about the fact that his boss, our embarrassing (at best) and shameful (more likely) PM, had been rebuked by the UK Statistics Authority for misquoting crime stats. Johnson had told the House of Commons that crime was down 14% – but the UKSA pointed out that this was only true if you leave out fraud and cybercrime, which together in fact amount to about a half of recorded crime and had in fact risen 47% in the period in question.

In other words: a bit like saying that violence is down as long as you only count crimes which don’t involve a weapon.

Kwarteng’s response?

“When people talk about crime — I think fraud is really really important — but people are talking particularly about burglaries, about personal injury, about physical crimes, and I think in that context we’re seeing lower crimes.”

Bollocks. Utter bollocks. Kwarteng is a smart person. He must know this is bullshit. Both in the sense that it’s a wholly misleading number to have used (let’s not get into the fact that Johnson too must have known he was lying to the House) and to defend it at all is dishonest; and in the sense that to imply (as I think he did, with explicit intention or not) that fraud is somehow less harmful, less damaging, less serious for its victims than violence or physical theft is not only wrong, but deeply insulting to those victims.

No surprise, of course. As you’ve heard me rant on about probably far too often, the gross under-resourcing of fraud investigation except where it affects the public purse has been shameful for years. Only this past week or two, we’ve seen the minister with responsibility for fraud resign at the dispatch box (seriously, listen to his speech) because of his sense of shame at the government’s counter-fraud ineptitude, in a demonstration of honour and character which both elevates him and shows too many of his former colleagues to be without either; and we’ve seen a report from the Treasury Select Committee which underscores the poverty-stricken mess that is fraud investigation and prosecution in this country.

The point being: fraud affects millions. It doesn’t just rob them of money. It also can do terrible damage to their psyche. Their ability to trust others. And, just as importantly, their confidence in themselves. And the entirely justified impression that there’s no point in reporting it because no-one will lift a finger to help only adds insult to those injuries.

(This story in Wired – although it deals with the US experience – gets absolutely to the heart of what happens to people when they’re taken by a fraudster. It’s wrenching. And, in my experience, it’s bang on the money. Unfortunately, it’s for subscribers only – but if you do subscribe, do read it.)

So it’s for those reasons that, as far as I’m concerned, Kwarteng has just thrown his honour, his character, his credibility and his fitness for public office on the bonfire. I can understand an urge to try to protect one’s boss. Even if that boss is as venal, shameful, shameless, narcissistic and – put simply – an utter disgrace to his office as this one. But to do so in such a demeaning, insulting and downright dishonest way? No. Hell, no.

As I’ve found myself saying far too often about members of this low administration, whose dishonour discredits us all: for shame.

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2022i4, Tuesday: Weight matters.

Weight isn’t just a matter of physics. It’s a matter of heart.

Anyone with a smattering of physics knows there’s a difference between weight and mass.

Mass is how much of something there is. It doesn’t change. A litre of distilled water masses a kilogram. Here, on the moon, in microgravity. Everywhere.

Weight, though, is something different. We routinely talk about that water “weighing” a kilogram, because here, on this Earth, it’s true. Six trillion trillion kg of planet under our feet make sure of it.

But not elsewhere. On the Moon, the same water “weighs” a sixth as much. A human being “weighs” 10 or 15 kilos. And in space? So little it isn’t worth talking about.

In a way, therefore, “weight” is context-dependent. One could almost say it’s subjective.

I know, I know. “Subjective” doesn’t mean that.

But what I’m trying to do here is lead up to the idea that for us humans, weight is about more than just a collection of molecules. How we feel, what we know, what we don’t – all these can imbue objects with a quality which makes them heavier or lighter, even when gravity stays at 1G.

Lift your work bag on two successive days, with the same contents, and it’ll feel different. A meeting you dread or a lunch you’ll love? A task that counts or drudgery that doesn’t? One day: light. The next: leaden.

But sometimes extra weight isn’t a burden. It’s a sign of how much something matters.

For most of us, there are things which define who we are. There are people, of course, thank goodness: those we love, those who love us. But there are things we do. Actions, activities, obsessions. The things which – if they were taken away from us – would leave us only partially there. Robbed. Even bereft.

I know what these are for me, because I spent years without them. No-one’s fault but my own. They weren’t taken away; I let them slip away from me. Told myself I was too busy. Family, work, no time for anything else.

And I paid. I became a smaller, sadder, sorrier person. More tired. More worn. Worst of all, someone with less of myself to give to others.

One is music. Long-term readers will recall I’m a piano player (never a pianist – nowhere near good enough to say that). I didn’t play for years. I don’t play every day now – but most days I do, and I know that I’m the better for having it back in my life.

The other, though, is capoeira. A martial art suffused with music. Born in Brazil, now worldwide. I first tried it almost 25 years ago. Then I played, solidly, for up to five or six hours a week, for several years around the year 2000. I loved it. It fed me. The physicality, the flexibility, the sense of energy and community and communication. Like nothing on earth. I took gradings. Became a senior student, with a blue belt.

Then, for years, I let it slip. Life. Work. Excuses.

Then, after we moved out of London, I discovered our new home had its own capoeira school, Brazilarte. I started training in 2019. Mestre Biscuim and Contra-mestra Sininha, its founders, became friends. They became family. And through the mad months of Covid, capoeira helped keep me sane. Kept me breathing.

In the two years I trained with Brazilarte – not always regularly, as work and family crises sometimes got in the way – I never wore a belt. It didn’t feel right, wearing one from so long ago. And thanks to the pandemic, there was no chance for a batizado (what we call a grading; literally, a “baptism”) at which I could earn one anew.

Not till last November. The Brazilarte Batizado was a celebration: of capoeira, of survival, of community. It was wonderful.

And at the end, Sininha tied this round my waist. A mark of family. Of belonging. Of faith and love. Of my return to capoeira as though I’d never left. Even of a kind of forgiveness for the times I’d let myself walk away.

And of an obligation – it being an instructor’s belt – to share the love with whoever I could.

And just for a moment, my knees sagged. My mind knew the belt massed a couple of hundred grams. My soul knew it weighed far, far more.

Today’s the first training session of 2022. This evening I hope I’ll feel my belt’s true weight. It may not be what I deserve. But I know it’s what I need.

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2022i2, Sunday: details.

The best and worst things in life. They trip you up, if missed. They redeem your soul, if marked.

The view down my Chambers’ stairs. It caught my eye one morning; a welcome moment of delight.

This isn’t a New Year’s resolution. I don’t do them, as a rule.

Nor is it a review of the year, or an anticipation of the one we’re entering. If the past couple of years have shown us anything, it’s that foresight is, for most of us at least, a mug’s game.

No. It’s a very short musing on the one thing that has both screwed me and saved me over the mad months we’ve gone through. And that’s detail.

From a professional perspective, of course, this isn’t news. Central to the work of the professional advocate is a mastery of detail. We’ve all lost cases because the import of some point, spotted by the other side in hundreds or thousands of pages of evidence, somehow passed us by. And equally, we’ve all come across that one critical item (occasionally in a final read-through on the train to court) which puts everything else into a winning context. Not in every case, of course. But more often than one might think.

But personally too. There have been times amid the madness when I’ve found myself pulling in. Closing down my peripheral vision, my proprioception. Letting my natural introversion (and I wonder – prompted by the comments at least half a dozen people close to me – possibly a smidge of being on the spectrum too) overtake me, blotting out little things that others do, or say, or leave undone or unsaid. Missing those critical little details which if spotted would scream, to an actively-listening mind, that someone else’s inner state needs to be attended to.

That way leads to isolation. Sadness for self and others.

Just as bad: when one walks down the road so absorbed in oneself that one misses the tiny details that feed your soul. Winter morning light on the river. A song drifting from a window that you’ve not heard for a decade or two. An innocent smile from a stranger whom you let pass. The things which may only ease your burden by a few grammes – but they add up.

Particularly when the big picture can be so dark, so unpredictable, so damned foolish and selfish much of the time, it seems to me that the details are still more important. Professional. Personal. Environmental.

OK. So maybe a bit of a resolution. Make time for the details. My soul will be the better for it. Perhaps yours will too.

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2021xi4, Thursday: Once upon a time…

Let me tell you a story. I think it’s about corruption. But do decide for yourself.

Once upon a time, there was a man in Harare. His name was Edwin. He was a ZANU-PF member of Zimbabwe’s Senate.

Photo by Josh Appel on Unsplash

Edwin had a friend who ran a business in his constituency. The business sold cars. Edwin’s friend was bidding for a contract to sell cars to the government. Edwin’s friend’s business paid Edwin a consultancy fee. Edwin talked to his colleagues in government, encouraging them to contract with his friend’s business. He didn’t say anything about his relationship with his friend, or that the business in question was owned by his friend, or about the money the friend’s business had given him.

Was Edwin acting corruptly?

I agree.

Oops. I’m sorry. I’ve got the story wrong. Try this one instead.

Edwin wasn’t in Harare at all. He was in Stoke-on-Trent. He was a Labour councillor. (And this is back in the days when 95% of Stoke’s council was Labour – when, as the sneering cynics might have unfairly said, you could get a monkey elected in Stoke if you strategically shaved them, stuck them in a suit and pinned on a red rosette.) Edwin’s friend owned a garage. Edwin’s friend paid Edwin some money to “advise” him on business. The friend wanted to pull down the garage and build flats. That would make him a killing. The friend’s planning application was becalmed in the planning committee. Without telling anyone about his relationship with his friend, or about the money, or about any connection he had with the planning application, Edwin spoke up in favour of the application.

Was Edwin acting corruptly?

I agree.

Damn. I’m really messing this up. Because both stories are true. And in both cases, Edwin got found out.

An independent arbiter, appointed by the assembly each Edwin was part of, and sticking to the rules that the assembly had agreed, investigated Edwin’s conduct. In the time after the conduct in question, each Edwin had lost his wife in tragic circumstances, so the arbiter in each case gave their Edwin every chance to defend himself, extending deadlines and giving him more leeway than would be normal. Each arbiter found their respective Edwin’s defence to be baseless – “stretching credulity”, it said about one of his arguments – and his conduct to have breached the rules of the assembly. In each case a cross-party committee of Edwin’s fellow representatives agreed with the arbiter’s findings, and censured Edwin, suspending him from the assembly.

Hold on a minute, said each Edwin’s party – ZANU-PF in the one case, Labour in the other. This isn’t right. Edwin hasn’t had a fair say. Let’s press pause on this while we reconsider the rules we’d previously agreed were fine. Each of the two parties whipped Edwins’ colleagues to suspend punishment while – for however long it takes – a committee on which that party holds a majority thought again.

Each Edwin, of course, is still sitting. Still unpunished.

In each case, is Edwin’s party acting corruptly?


I recognise I’m not being terribly subtle here.

Obviously I’m not talking about Edwin. And I’m not talking about ZANU-PF or Labour. Although if either of them did this, they’d be just as much in the wrong.

This isn’t about parties. This is about probity. About ethics. About the wholesale abuse of power for private advantage.

About, in other words, corruption.

Owen Patterson’s party (because of course that’s what this is about) whines about a lack of due process from the Standards Commissioner (whose report is here). From a party whose Lord Chancellor and Attorney-General want to make it so ministers found to have acted unlawfully can simply, administratively, change the law to suit their purposes, this is cant. Base hypocrisy.

For shame.

I also recognise that these are strong words. Stronger, I think, than I’d usually use.

A few days ago my old friend Max left a comment on a previous post on LinkedIn. He referred – approvingly, I should note – to my “blogrants”. For a moment I was taken aback. Do I really rant? I hope not.

Notwithstanding that, I realise I may have done so here.

But I haven’t spent most of my working life working against corruption elsewhere to nod and wink when I see it at home.

There’s a point to the story-telling method I’ve adopted above – and not only, as I’ve discussed before, because we humans respond to stories, not to bare recitations of fact.

It’s instructive, particularly in this country where we like to believe we’re cleaner than most, to swap out places like “London” or “the UK” and tell the same story as if it were in Harare. Or Abuja. Or San Salvador. Or Kabul. Or Moscow. Or Beijing. Or Beirut. Or any of the other places that we think we’re better than. It’s also important, if one is to have a shred of decency, to imagine how one would feel if it was – in political terms – the other lot. It’s like steel-manning the issue.

If it’d be corruption elsewhere, it’s corruption here. Not sleaze. Corruption. Names are important.

Call this what it is.

1140: a quick update, having finally got round to reading this morning’s Politico playbook from which the below info was taken. For the record, the following Conservative MPs voted against the party whip. They should be applauded. Some would say: well, they’re only doing what they should; where’s the credit in that? But this is like whistleblowing. They’ve put their careers in jeopardy. This is brave, and right.

Aaron Bell. Jackie Doyle-Price. Richard Fuller. Kate Griffiths. Mark Harper. Simon Hoare. Kevin Hollinrake. Nigel Mills. Jill Mortimer. Holly Mumby-Croft. Matthew Offord. John Stevenson. William Wragg.

19 Tory MPs voted in favour despite having in the past had complaints upheld. Not strictly speaking a conflict, but still fairly grubby. I won’t name them, since I guess they’ve a right to their opinion, however shameless it is.

Not so for the three Tory MPs whose alleged misconduct is still under investigation:

James Cleverly. Daniel Kawczynski. David Warburton.

I can’t put it better than Politico does:

If they can’t see why it’s inappropriate to be voting to effectively get rid of the current standards process then Playbook can’t help them.

Quite. Again: for shame. If only they had any.

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2021×28, Thursday: Words and weasels.

Words change the world. Sometimes they do so as a result of malice aforethought. Maybe, just maybe, there’s a word for that…

Sometimes words are just beautiful, in context, for their own sake. No idea how this street in Birmingham came to this name. But on the day I took this photo, having gone to Birmingham from Essex for a hearing that was called off at the last moment, I couldn’t have asked for a mot more juste.

We lawyers love words.*

It’s an professional deformation. Perhaps particularly (but certainly not exclusively) for us barristers; our working lives consist overwhelmingly of finding precisely le mot juste for every situation our clients face.

But the law is made up of words. And their meaning, especially in the specific context and usage (grammatical, purposive, even cultural and historical) in which they’re deployed, is our stock in trade.

Sometimes it makes us pedants, to lay eyes. And sometimes that’s right. 

But take the simplest of contracts. A few words, between two people. But words which create a promise that binds. That create, in a sense, a new reality.

No surprise, then, that how words are properly to be understood occupies an immense proportion of jurisprudence. 

Just read paragraphs 10-13 of the Supreme Court’s judgment in Wood v Capita – the most recent apex court distillation of how we, in England and Wales, are meant to read a contract. As a judge slightly testily pointed out to me earlier this month, this was in a sense simply the upsum of a string of earlier cases familiar to any commercial hack: Rainy Sky, Arnold, Investors Compensation Scheme. Continuity, not change, as Lord Hodge said in para 15. 

(That claim of consistency is a familiar trope in Supreme Court, and before it House of Lords, writing. After all, a critical element of a top Court’s job in a common law jurisdiction is to take legal situations where precedent has become knotted and cut through it to provide a definitive roadmap. Cloaking that in the idea that “this is what everyone really meant all along” – my favourite example being the “restatement” of Twinsectra’s take on dishonest assistance in Barlow Clowes – is part of the fun.)

In another sense, though, Wood was again words changing the world: setting out, in fewer than 1,000 words, a definitive guide to how words and context should be balanced so as to come to a true understanding.

(* Which means sometimes we love them for their own sake, not because of their world-altering power. Take a recent piece by Helen Lewis, which described automatic cars as “babyfied clutch-free go-karts”. I’m so jealous. But I’m also overjoyed that such a gleefully descriptive combination of words has come into the world.)

The way words change the world came home to me consciously after reading a lovely piece (thanks to the blessed John Naughton for pointing it out) about the word “performative”. The piece has changed my world: it means I’m going to stop deploying that word in its now-usual usage (indicating that someone’s using speech merely as a sign-post to demonstrate their “sincerity”, rather than actually planning to do anything about whatever problem that speech is addressing). Because, so Wilfred M McClay writes, that’s almost a diametrical opposite to its original coinage: which was to denote words which don’t describe, but do. Words which change the world. 

As McClay explains:

Once we’re alerted to this distinction, we begin to see it in many places. When the bride and groom say “I do” in their marriage ceremony, or when the officiant pronounces them man and wife, when promises are made and words of permission are granted, when a will orders the bequest of a precious object, and in fact in nearly all contracts—the language being used is performative in character. It is language that does not merely describe something. It enacts something.

Now, I’m no stickler when it comes to changing meaning. I’m more descriptive than prescriptive. Language evolves, as do we (culturally, if not biologically – or rather, the latter is so many orders of magnitude slower that it’s not relevant in this context). 

But some words are valuable because their “old” meaning has powerful relevance. In our current, riven condition, the word “disinterested” – with its core meaning of “no skin in the game” – seems to me more important than ever, and treating it the same as “uninterested” seems to me not only lazy, but dangerous. 

And as a lawyer, the idea that there’s an adjective which neatly describes the kind of language on which so much rests – and about which we professionally obsess – is a welcome one.

Mind you, perhaps there’s another use for “performative” which elides, to an extent, the two meanings – apparently contradictory though they may seem.

You see, contrary to some popular views, there’s one thing we (and here I’m talking about barristers in particular, in our relationship to courts) just don’t do. Not unless we’re wholly lacking in ethics, and deserve to get thrown out of the profession.

We don’t mislead. Sure, we argue our case. We highlight what helps and downplay what doesn’t. We try to persuade the tribunal that the world is as our client would prefer. That’s our job. And sometimes, I admit, that can come fairly close to the line of eliding what is into what we want it to be.

But we don’t just say black is white. We don’t gaslight. We don’t bamboozle, or trick, or confuse. Partly because we’re not allowed to. Partly because most judges are wise to that kind of thing. Partly because you always get found out in the end, and you’ve only got one reputation to lose. But also – perhaps a little bit – because, deep down, as lovers of words, doing this just feels fundamentally wrong. 

And yet we see it all the time. Weasel words. The truly dirty ones which don’t lie with untruth; instead, they lie with truth, or partial truth, or (still worse) with bullshit. Words like “clearly” – always a flashing red light indicating that someone is papering over cracks in their argument and hoping you won’t notice. 

And in politics, phrases like “enshrined in law” – a deliberately meaningless coinage which, as David Allen Green witheringly explains, seems to indicate decisive action where none actually exists. 

Why are phrases such as these so diabolical? Because they pervert meaning. They send signals intended as cover for inaction at best, or dog-whistles at worst. In the new sense, they’re little more than “performative”. Ouch.

But are they perhaps – also – “performative” in the “proper” sense as well? I think so. Because – as they seek to gaslight us into believing in action where none exists; or, as with recent pronouncements by our learned Attorney General, argue for a “rebalancing” of power to free judges from unwanted political entanglement, when in fact what’s called for is a naked and autocratic executive power-grab – they seek to redefine the world. To tell us: don’t believe your lying eyes. Believe us. 

These are words which try to change reality. They may be malevolent. 

But they’re still performative. And we ignore that at our peril.

2021×18, Monday: Your right to say it.

Three days ago, someone murdered David Amess. We were political poles apart; and yet he strove to be my representative. We owe it to him to remember these are not mutually exclusive.

Sir David Amess, painted by Madmanity at the skate park in Leigh-on-Sea which Sir David opened in 2008.

He was my MP.

And someone murdered him.

I can’t claim any special connection to Sir David Amess. I never voted for him. I didn’t agree with much of his politics, if any. I never met him. I was lucky enough never to need his help.

But he was my MP. And that’s important.

Because someone – honestly, it doesn’t matter who at this point – thought it was OK to stab him. To kill him. To take him away from his family. From his constituents.

I wish his family succour in their grief. I wish Sir David eternal rest and peace. He was a lifelong and dedicated Catholic, so I have no doubt that he had faith his end here on this Earth wouldn’t be the last word. And I pray that he was right.

But it’s his constituents I want to focus on. And only very slightly because I’m one of them. There are 650 MPs in the UK. And the majority of them aren’t ministers or shadow ministers. They might serve on a committee or two. But most see their first job as representing their constituency. Critically: most have it as an article of faith that they’re there not just to represent, but to serve, everyone in that constituency: those who voted for them, and those who never would, alike.

Everything I’ve heard says Sir David was just one such public servant. He seems never to have sought a government post, or to have been at all interested in one. Instead, everyone who’s encountered him – from local businesses and charities to people who needed his voice to speak for them when officialdom was flexing its muscles – seems to have found him absolutely committed to this place in which I live, and (perhaps more importantly) to each person in it.

(Reading this as I write, I recognise that “we can’t break the link with constituents” is an argument often deployed against moving away from first-past-the-post. And I agree: that link is critical. But pure FPTP isn’t the only way that link can be maintained. STV is one way. There are others. And the warping effect of FPTP, leaving many people near-permanently disenfranchised, may contribute to the despair about politics, and the encouragement of division between voters, which I’m abhorring here.) 

And that’s the point. Sir David didn’t engage in “othering” any of his constituents. I doubt – from what I’ve heard – that he would have done so to those with whom he strenuously disagreed politically either. I’m sure he had faults. But I suspect that wasn’t one of them.

But consider how many of his colleagues on all sides of politics don’t do that. Who talk of traitors. Enemies of the people. Scum. Who seek to embed and exploit division. Who look for scapegoats, a “them” whose fault it can be. Whatever “it” happens to be today.

This sets a tone. No-one’s responsible for Sir David’s death other than the person whose hand held the knife. But we’re all accountable for the context in which such atrocities happen. In which MPs routinely face multiple threats of death and violence each week – the more so if they’re anything other than a white male.

Don’t get me wrong. I want us to disagree. Strenuously. No kumbaya here, please. I want us to argue. To debate. To be able to say someone’s ideas are wrong, or harmful, or counterproductive. (And to make the case; not just to say “I’ve a right to my opinion” – because an opinion without a foundation is sometimes little more than a prejudice.) 

And on occasion – if (and only if) merited – to challenge the motivation behind the ideas as well. 

But rarely. Instead, play the ball. Not the person. Most of the time, if someone thinks differently from you, that says nothing about the content of their character. Don’t ever assume that without evidence.

Apparently Voltaire never actually said that while he disagreed with what someone said, he’d “defend to the death your right to say it”. It’s a misattribution – although many judge it an accurate distillation of Voltaire’s views.

I believe Sir David would have agreed with the sentiment. I believe the best honour we can pay him, a servant of the public to the end, is to strive to live by it.

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2021ix11, Saturday: 20 years.

Two decades on from a terrible day, I can’t help remembering – alongside the sick horror – a feeling of professional pride and challenge. Does that make me a monster? I don’t think so.

Oh, fuck.

Thinking back 20 years, to a sunny September afternoon in West London, I’m pretty sure that’s what I thought. And probably for the first and last time in my life, I was sharing a crystal clear thought, in a specific moment, with millions of others.

I was a BBC reporter. I’d been one for two months, working for what was then called BBC News Online – a wonderful little enclave of print hacks feeding copy into the BBC’s news website. I’d been hired following my insistence that there were business stories to be told about white collar crime. In practice, I’d had trouble getting a lot of interest, or traction. It was a little annoying.

And then there I was, sitting in front of one big CRT monitor (yes, it’s that long ago) and two tiny CRT TVs tuned to BBC News 24 and (probably) CNN.

I don’t think I was paying much attention when the first aircraft hit the first tower. I must have seen it. But I was busy. A passing empathetic thought for all those whose lives had been lost in what – I assumed, with so many others – to be an awful accident. (Remember: we were several years past the Troubles in Northern Ireland. Terrorism wasn’t front of mind. The bins may even have been back on the train platforms. What a sweet, brief time that was.) And then back to work.

And then the second plane hit. That terrible sequence that anyone alive that day with access to a TV can instantly remember. I remember it in slow motion: probably the effect of too many playbacks overwriting what, in any case, would have been largely seen in my peripheral vision on those two tiny TVs.

And I, and millions of others, swore. Out loud. 

And then the newsroom – Room 4220 in TV Centre, the BBC’s main economics and business newsroom, normally embroiled in the racket of a hundred hacks on deadline – went silent. 

Only for a few seconds. But it was deathly quiet. 

And then, of course, it was uproar. 

Because I, and probably everyone else in the room, knew this wasn’t an accident any more. Someone had done this unthinkable deed. On purpose. And, as for every other reporter whose beat intersected even vaguely with the attack, I knew it was game on.

That this was the time when I found out whether, in fact, I was any good or not.

I read that now, and I feel slightly sick. More than 3,000 people died that day. Some through impact. Some were crushed. Some were burnt alive. Some (and here it’s the stills I remember) threw themselves from the windows dozens of stories up, because – appallingly – that may have seemed better than the alternative.

And here I am, talking about it like it was a test of professional pride.

Here’s the thing. There are some jobs where you spend your time up to the elbows in others’ trauma. Doctors. Coppers. And, of course hacks of both kinds, reporters and barristers. We see people at their worst and most vulnerable moments. The times when life has kicked them in the teeth, and the horrifying truth is dawning that it can still, somehow, get worse.

I don’t know what it says about me that I started my working life in one such trade, and now – after an 11-year detour through regulation and banking – I’ve ended up in another. 

But this I know. I don’t feel sick about what I just wrote because I was wrong. I wasn’t – either to write it now, or to feel it then. I feel sick because I recognise that for some people it will be the proof that these jobs (perhaps not the cops and quacks, but certainly the hacks) are indeed monsters. Preying on human frailty for profit.

And yes: some do. More the journalists than the barristers, I like to think. Still, some, of each, certainly. 

But not most of us. Police officers I’ve known sometimes talk about the core distinction between them and everyone without a warrant card is they run towards the scream, not away from it. Because it’s the job. Because you get your hands a bit grubby. Because someone has to. And if you’re a halfway decent person, better it’s you than some people you know. 

Same for us hacks, of both kinds (although thankfully, usually at least, without the intense physical risks). People get into trouble. Sometimes all by themselves; sometimes because someone’s done it to them. Ignoring it is a lovely privilege for many. 

But someone has to notice. To write about it. Or fight it out in the courts, if it gets there. To be their voice.

Not without heart, not without feeling. You have to have those. You have to empathise, or else you really are a monster.

But then you have to get on with the job. Work at it. Try to keep getting better.

And find out, again and again, if you’re really any good or not. Every day.

It’s a bloody privilege.

Might as well be me.

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2021ix9, Thursday: the truth behind the lie.

Anyone can lie with statistics. But buried in the numbers backing up the BS, the truth that rebuts it can often be found. And fashioning that into a compelling story can be shockingly effective.

One of the great things about numbers is not that they can be used to lie, although they can.

It’s that even when they’re (mis-)used that way, sometimes the truth still lurks within.

I’m no great mathematician, although my daughter tells me that I light up when I’m working through problems with her to help her study. And it’s a sadness that when I studied maths in school, we focused on mechanics at the expense of statistics and probability.

I’ve picked up a bit of each since, although I’m still very rule-of-thumb. And every so often something comes up that simply delights me.

Benford’s Law was one such. I encountered it as a counter-fraud tool many years ago. For large number sets, it observes, the leading digit – that is, the lefthand-most one, denoting (say) the thousands in a four-digit number or the millions in a seven-digit one – is rarely an even distribution. No: a leading “1” is by far the commonest number, with a sharp drop to “2” and then a logarithmic curve flattening thereafter all the way to “9”.

Why is this useful in counter-fraud? Well, to make a fraud work, you often need to cook the books – to alter financial records. What are financial records but numbers? And when you make up numbers, or generate them randomly, you may well fail to make the statistical distribution of those numbers look right.

So if you’re looking at a data-set whose leading digits are evenly distributed – instead of, as Benford’s Law predicts, having as much as 30% of them start with a “1” – you ought to start getting suspicious.

I mention this having been pointed (by the ever-wonderful Charles Arthur) to a recent takedown of a seminal piece of counter-fraud research. The research, from 2012, posited that a measurable decrease in dishonesty could result from a simple change in how people sign declarations of honesty in documents. You know how at the bottom of a tax return, or form providing details for (say) insurance, you sign to say you’ve given accurate information? The research suggested that simply by putting the declaration at the top – that is, before you provide the information instead of afterwards – people would be significantly more likely to tell the truth.

Classic “nudge” theory at work, you might think. 

Unfortunately, the authors themselves tried and failed to replicate their findings in 2020. They found anomalies in one of their key data sets, which they attributed to a “randomisation failure”. 

No: as the new (and really smart and thoughtful) analysis says – conclusively, to my mind – the data in question was simply faked.

I won’t provide too much detail. The analysis is short, clear, and absolutely worth reading in full. To give just one example, it noted that the data (from a motor insurer) included two sets of mileage figures, both supposedly provided by drivers. But while the first set showed notable spikes in frequency for numbers ending either in “000” or “500” (that is: people roughly rounding their mileage to the nearest half-thousand, as you might well expect them to do), the second set was absolutely flat – as the graph reproduced below shows. 

In other words: the same people were rough-guessing their mileage first time round, but giving it accurate to a single mile thereafter. Consistently. Everyone. Every time.

You’ve met humans. You tell me how plausible that sounds.

If anything, the analysis gets still more fascinating thereafter.

To their credit, all four of the 2012 authors recognise the problem, and have now retracted the 2012 paper. There’s no reason to think any of them were party to what now appears to have been an essentially made-up data set. 

More importantly, they also agree with a core emergent finding of the writers of the new analysis. Research which doesn’t expose its underlying data (unless it’s absolutely impossible, say for personal privacy or safety purposes, to share it), isn’t to be trusted. Because it can’t be checked.

And given the reproducibility crisis, that just isn’t good enough.

I recognise that I seem to be straying a long way from the law, here – my usual stamping grounds.

But this is, to me, objectively interesting. There’s a beauty in the idea that those who lie with statistics may ultimately be found out by them too.

And I think there’s at least a small legal application – or at least a litigation one.

Numbers can be made to lie, sure. But equally, underneath the lying explanation there may be a true story begging to come out.

And – as we’ve discussed ad nauseam – advocacy is about story-telling. Don’t ignore the opportunity you have to use numbers to tell stories. If you can take a wall of impenetrable numbers, and – as the writers here have so lucidly done – use them to fashion a compelling, even shocking, narrative, which grabs the attention and answers the key questions, don’t waste it. 

Not all of us advocates are numerate. Not all of us “get” statistics and probability. Some of us even misuse them – by accident or by design. But more of us should get it, and get it right. I know I’ve mentioned it before, but the Inns of Court College of Advocates guide, created with the help of the Royal Statistical Society, is a pretty good way to start.

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