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?

Hmmm.


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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2021viii19, Thursday: A failure of trust.

A brace of Court of Appeal cases highlight both some fascinating litigation points – and why charitable trustees need to trust themselves, and their friends, a little less.

Like many people who’ve spent time in counter-fraud, I have a firm but nuanced view of fraudsters.

Nuanced, because part of the classic fraud triangle is “rationalisation” – the fraudster’s ability to convince themselves that what they’re doing isn’t really wrong. Not really. Not when looked at from the right angle, in the right light. (Albeit possibly only at 4.13pm on the second wet Thursday in October.) And not often, but sometimes, there’s almost genuine pathos in that rationalisation – particularly when it’s linked to a necessity which is caused less by greed than by some personal or family disaster.

But firm, because when you get down to it fraudsters are still essentially stealing someone else’s stuff, usually by lying to them or otherwise betraying their trust. And screwing with the trust someone places in you is, to my mind, one of the worst betrayals there is.

I could go off on a long tangent here about fiduciary obligations – for the non-lawyers, the term for the duties which arise in special kinds of relationship where you’re obliged to put someone else’s interests before your own, and not simply balance yours against theirs. Directors to their companies. Trustees to their beneficiaries. Solicitors to their clients. And so on. The tangent is tempting, not least because of a long talk with a client recently which I spent trying to convince them why what had been done to them, while patently wrong and immoral, wasn’t a breach of a “fiduciary” duty; and that calling it that would hurt their case, rather than helping it.

(We play with words, we lawyers, and forget sometimes that – as with any jargon – legal cant can seem to be a touchstone to the uninitiated, rather than a vessel of specific meaning.)

But I won’t, because what I’m really interested in here is a particular kind of fiduciary obligation: that of a charitable trustee. 

Because more than once in my career, I’ve seen charitable organisations – or those which, while not actually a charity, are non-profit and trying to do good – get taken. Badly taken. And while my primary visceral hatred is directed at the crooks (and, I admit, occasionally fools) who took them, there’s a small pipette of bile reserved for the idiots who let them.

Yes. Let them.

One example? A religious charity – an independent pentecostal church – whose affairs I investigated a decade or so ago, after they entrusted their money (that is, the money gifted by the faithful) to a friend of the pastor, who said he could produced a 60% annual return.

The return was indeed about 60%. Minus 60%. More than half the money was lost. Because the trusted idiot – and I think he was a fool, rather than a crook – had convinced himself and the pastor that contracts for difference were the right way to gamble with the church’s money. And because he was the pastor’s mate, none of the church elders lifted much of a finger to stop it happening. 

This kind of “we’re religious, so we should trust because our leaders say we should” is dangerous. It’s at the root of affinity fraud, the kind of fraud which rips through a community once the fraudster is inside the circle of trust, and which strikes religious groups particularly hard (but of course isn’t limited to them). And it’s particularly pernicious in the kind of religious groups with charismatic (small-c, I stress) leaders, tithing traditions, and few controls. Yes, ultimately it’s the fraudster’s fault, and yes, perhaps people should caveat the emptor just a bit. But in line with my core belief that certainty is not to be trusted, any leader who gives off a vibe that discourages his (usually his, rather than her) followers from doing their own due diligence is simply dangerous, unprincipled, arrogant and – put simply – in the wrong job.

That particular church case inspired me to put together a one-day course for pastors in training, as part of a ministerial training course run by a friend of mine. I only ran it once, but it centred on the vital importance of audit – and the idea that “trust, but verify” was the exact opposite of unfaithful.

Misplaced trust

All this was a long time ago, but I was reminded of it recently by a brace of Court of Appeal cases involving a genuine financial and legal tragedy. They involved a venerable law firm in Yorkshire, Dixon Coles & Gill, the Bishop and Diocese of Leeds, and four well-known national charities. 

And the former senior partner of the law firm, who over the course of a couple of decades stole millions – yes, millions – from the firm and its clients.

To tl;dr the background: the firm, DCG, had been around some 200 years. It was forced to close in 2016 after its two other partners discovered to their horror that Linda Box, their colleague, had systematically been bleeding funds not only from its client account but also from funds she personally held for several charities (including the Church). Unsurprisingly, the Church and the charities sued. Since the firm was an old-fashioned partnership instead of a more modern LLP, the two other partners – who, it should be said, were wholly innocent of deliberate wrongdoing – were in principle on the hook with unlimited liability.

In fact, the Court of Appeal allowed the remaining partners to benefit from the usual six-year limitation period, overturning a ruling in the High Court in Leeds that they should be found to have been “party or privy” to Mrs Box’s fraud under s21 of the Limitation Act 1980 – but it also dismissed an appeal from that same court’s ruling that the firm’s insurers were liable to pay out on all the claims (if the claimants were successful), rather than being able to limit total liability on the grounds that all the claims essentially arose from a single series of related acts.

They’re fascinating cases: in particular the first, for anyone interested in limitation (and that should include all lawyers involved in contentious litigation).

But I mention them in particular for a startling detail in the first-instance claim. At paragraphs 42 and 43, HHJ Saffman notes that the remaining partners suggest Mrs Box – in handling a substantial proportion of the Diocese’s money – was acting on a personal rather than professional basis. And he points to a 1995 letter where a past Bishop of Leeds seems to have allowed Mrs Box to have sole signing authority on a Church fund – a fund in relation to which he was (as Mrs Box wrote to him in 1995) “under no legal duty to divulge the accounts to anyone“.

I find this shocking, and frankly disgraceful. As some will know, I come from a Church background. My late father was a vicar, then a canon, then a bishop – retiring in 2011 after 15 years as Bishop of Winchester, one of the largest dioceses in the Church of England. I’ve met plenty of priests and bishops who took a pretty autocratic view of their rights, and of how they should be allowed to fulfil their obligations, although my dad – a believer in sunlight as the best guarantor of probity – wasn’t one of them. (Not for him the clergy equivalent of “I find your lack of faith disturbing,” although I’ve seen variants far too often.)

So I’m sure there are plenty of funds held by priests and bishops in the CofE with similarly – ah – opaque oversight structures. 

But to take such a fund, and give a single individual who isn’t even the office-holder the unaudited power invisibly to handle the cash? It’s insane. More than that: given that the funds are charitable, or at least the fruits of faithful labour by many hands and the generosity of many hearts. it’s simply immoral.

This simply shouldn’t be. No more should there be unaudited funds for charities and churches, than that churches should be able to mark their own homework when it comes to safeguarding. 

Not because churchpeople are uniquely bad. They’re not. Most are genuinely trying to do the right thing. 

But because they’re people. And in my view, it simply isn’t fair to put people in a position where – if they find themselves at risk of yielding to temptation – there’s nothing in place to hold them back.

Trust, but verify. It’s only sensible. But far more importantly, at least for people of faith like me: it’s un-Christian to do otherwise.


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2021viii10, Tuesday: When 1≠1.

A judge makes the point I’ve been dying for someone to make about bundle page numbering: make the numbers match. Or suffer the (cost) consequences.

Thank goodness.

There are many bundling crimes which we’ve now become tediously used to since, in March last year, the world caught up with those of us at the Bar who’d already gone paperless.

Now a judge in Manchester – may he be blessed! – has tackled one of the more aggravating ones head on.

It’s page numbering. Yes, I know. Boring. Pernickety. The usual head-of-pin barrister small-mindedness.

If you think this, you’re wrong. Ask yourself how many hearings you’ve been through uttering the litany: “That’s page 47 on paper, my Lady, but page 54 in the PDF.” And waiting while someone, unerringly but understandably, goes to the wrong page. Over. And over. Again.

Thing is, it isn’t hard to get the numbering to match up. As long as there aren’t any last-minute additions, in fact it’s child’s play. In Adobe Acrobat, you can easily make (say) the index pages – and yes, the biggest single crime is forgetting to number the index pages as i-ii-iii, kicking off the actual substantive bundle at page 1. (Open the page thumbnails sidebar down the left hand side of the main window. Click on the menu icon just below the words “Page thumbnails”. Choose “Page labels…”. Pick your page range, select roman instead of arabic numerals, and you’re done.)

In PDF Expert, that isn’t an option – but instead, why not simply start page 1 with the first page of the index, instead of having it in a separate document? (On which subject: separate indexes are the spawn of Satan themselves. One document, please. Including the index. Just the one.)

I won’t go into online bundling services, but frankly if they don’t do this already, they should do. Pronto. (I’ve come to love Casedo, but its page number doesn’t have the option to include its own self-generated table of contents. It really should.)

Even adding pages isn’t too hard (eg “280a, 280b” etc). At least in Acrobat – you can do exactly the same thing. Add the extra pages. Then choose them in the range. Make the starting page the prefix (so “280” in this example). Choose “a, b, c…” from the dropdown. Away you go. Done.

So as HHJ Pearce says in Hodgson v Creation Consumer Finance Ltd, there really isn’t any excuse. The courts – from the Supreme Court down – have said for some time in guidance that this is how they want pagination to work. 

And yet I can’t offhand remember a single bundle I’ve been sent by an opposing party (I do my best to work with my solicitors to get it right) that has complied.

The next time, I might be tempted to take a point on it. Using the following from HHJ Pearce at [14]:

Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.

Costs argument here I come. And I doubt I’ll be the only one.


I mentioned other electronic bundle crimes. 

The biggest, of course, is the failure to make the text searchable. ReadIris or Acrobat will usually solve that, but not always.

A close second is the delivery of documents in multiple emails, with further nested emails, instead of in a single PDF bundle: I’ve now taken to including time for putting that together into my fee estimates. 

There are myriad others. But honestly: as HHJ Pearce says, we’ve been at this a while now. If a single paper bundle was doable in the past, a single properly-prepared PDF bundle should be doable now. I don’t really think, for professional court users, that there are any excuses left.


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2021vii31, Saturday: Ours, theirs, and attribution.

Our minds play tricks on us. All the time. One trick is particularly pernicious – but recognising it can change the world.

I’ve just ordered another of these, for my room in Chambers. Everyone needs reminding. Lawyers perhaps more than most. Link in the paragraph below.

I’ve long been fascinated by cognitive biases and logical fallacies: the tricks our minds play on us, driven deep within our psyches like paths trodden across hillsides over centuries of traversing feet. I have posters on my home office wall listing many of the most common ones. And when I was at StanChart, I built them into a class for new graduate trainees.

In some ways, the fallacies are more fun, not least because some of the names are evocative as hell. The no true Scotsman fallacy. (“That lad in the paper who did the murder. Must’ve been English. No Scotsman would do that.” “No – says here he was from Falkirk.” “Ah – well, no true Scotsman would do that.”) The Texas sharpshooter fallacy. (Just because some set of data makes a neat group, don’t assume a connection. It’s possible the set may have been chosen – deliberately or unconsciously – to fit the hypothesis, like someone shooting at a wall and then drawing the target in afterwards to fit the grouping.) And one that us barristers may be particularly vulnerable to, the fallacy fallacy. (Don’t dismiss a claim just because it’s been poorly argued, or because the explanation for it includes a fallacy. In other words: the best skeleton argument, the best advocacy, is sometimes going to fail if the other side’s underlying case is – well – just better. Not always, thank goodness, otherwise we’d be out of a job. But sometimes.)

But the cognitive biases are more pernicious. And one in particular has a devastating effect – not only on us as individuals, but on us as groups. It’s the attribution effect. It was identified by a man named Lee Ross, many years ago. Ross died recently, and I was reminded of this critical bias by a thoughtful and thought-provoking piece of writing about him, about the error, but mostly about just how fundamental it is to understanding where we’re going wrong – and what we can, each of us, do about it.

OK. That was a bit cheeky there, using the word “fundamental”. Because when Ross first identified this, he called it the “fundamental attribution error”. As originally formulated, it referred to our tendency to look at others’ conduct and take it as arising from their character, not their situation. “So that woman over there who didn’t let me into slow-moving traffic? She must be SO selfish. Dread to think what it’d be like to work with her.”

Yes, I know, that’s a simplistic example. But it’s enough to shine a light on what I’m talking about. How often do we look at others, see a snapshot of their behaviour, and take it as a synecdoche of who they really are? And how often do we consider that it might instead just be a moment of thoughtlessness or inattention brought on by a really bad day? A sick relative? An angry boss? An unexpected bill?

Then there’s the flip side, which we customarily apply to ourselves. So we snapped at a waiter. But that’s not us. That’s because he took too long to bring the bill. Or because we have to work this weekend. Or because of that blasted woman who made us late to the restaurant because she wouldn’t let us into traffic.

(There’s another similar bias, the self-serving bias: the tendency to see our errors as down to circumstance or dumb mischance and our successes as entirely down to our own greatness and hard work. I’m sure none of us recognise that one. No. Of course not…)

In psychological terms, this is the difference between dispositional attribution – something that arises from who we are – and situational attribution, which is driven by external circumstance.

I imagine we all recognise it now. It probably feels like just one of those things that make us human. So why am I saying it’s so important, and so pernicious?

Because in a world which seems more and more divided into us and them, in-group and out-group (for me, this will always be the Japanese terms “uchi” and “soto”, which carry huge emotional resonance for any Japanophile), attribution is deadly. We see it all the time: the easy justification of what “our” people do as necessary, external forced upon us by the times, by the circumstances… or of by course the other lot. Whose actions are driven by malice, or by political beliefs which are selfish or evil or at best just plain incomprehensible to real people (however defined). Real people like us.

Meaning that whatever we do, we do reluctantly and in good faith, and with the best of intentions. And whatever they do, they do because they’re just that kind of awful people.

Tell me you don’t see it. Every day. Now tell me you don’t do it. I wish I could. I can’t.

For students of cognitive bias, there are some clear crossovers here, indicating that an uchi/soto split seems to drive large chunks of our psychic plumbing. There’s the halo and horns effect, which means things done by those who’ve made a good impression on you in the past will seem good, whereas things done by those you’ve had reason (perhaps?) to despise will seem bad – irrespective of what either is actually doing. There’s the availability heuristic, where things that are recent, close or present seem more relevant to decision-making, more prevalent, than more distant things – and, of course, those in your immediate group as as close as it gets. And then there’s the old favourite, confirmation bias, where you overweight evidence that confirms your existing beliefs and downgrade evidence that opposes it.

So maybe we’re hardwired to attribution when it comes to our group and theirs. Not surprising, perhaps. But as the writer of the piece I linked to points out, as we atomise more and more, this tendency will burrow deep and destroy us – unless, as with all cognitive biases, we do our best to see it happening in ourselves, rather than just letting it rip.

This is one reason I have so little patience with dog-whistle labels and straw-manning, from whichever side of the political spectrum they arise. The label triggers the attribution: I can stop thinking about that lot, it says, seductively. I know their sort. And I know their motives. Not like us righteous types over here.

Can we stop ourselves doing this? Of course we can’t. Can we strive to mitigate it? Yes. Should we? You’ll need your own answer to that. I know mine.


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