Author: JSJ

I'm a barrister at Outer Temple Chambers in London. I live by the sea in Essex. I play jazz piano... for a certain value of "play". And I try to believe we're better than we suspect. It's a struggle, sometimes. But it's worth it.

2021viii19, Thursday: A failure of trust.

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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.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021viii10, Tuesday: When 1≠1.

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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.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

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

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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.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021vii26, Monday: now read this.

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Not my stuff, obviously. But the piece I’m linking to – entitled “I just learned I only have months to live. This is what I want to say” – is breathtaking. Do yourself a favour. Please.

Someone is so, so right on the internet: Another short one. I’d say I’m making up for lost time, but that would sound – given the content of this scribble – as though I was trying to be ironic. And I’m really not.

Someone I love has recently had the kind of diagnosis which can fill you with despair. Make you scream at the universe for its uncaring cruelty. Stage 4 cancer. Damnation.

And yet, I won’t scream or gesticulate. I refuse to. Because they’re not. They’re marvelling at the blessing of a life well lived, that they’re still living well, and refusing to take this as anything but a thing that happens.

It helps that they have faith. That they’re sure, quietly but firmly, that it’s not the end of the road. Only the end of this one.

But that aside, the resolute acceptance, and the ongoing love for all those around them, is an example before which I’m humbled. I’ll honour it by reflecting it as best I can.

I mention this not for sympathy (I don’t need it, since this person doesn’t), but as a lead-in to a truly breathtaking piece of journalism to which John Naughton (bless the man) linked in his daily newsletter this morning. (He got it via Helen Lewis, whose newsletter is also a blessing.)

John called it his “Long Read, not just of the Day, or even the Year, but perhaps of a lifetime”.

I might not go that far. But I’m close. It’s stellar.

And it’s strange. I was sure I cleaned my glasses last night. Yet they’re all misty again.

Update: Nigel Morris-Cotterill, one of the foremost experts around on money laundering, shared his experiences with losing his father on LinkedIn after reading this. He wrote a book after his father’s death, entitled “Ten Things You Need to Know about Dealing with Death” (Amazon page here; Nigel’s piece on LinkedIn about it here). I’ve only skimmed the list of the ten things, rather than the book itself, but I agree with them all. 

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021vii25, Sunday: Take me home.

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I spent my Saturday lost in music. Oh sweet Jesus. It was… wonderful.

I’ll make this brief.

Go to the cinema. Watch Summer of Soul. Soon as you can.

For those without the privilege to have encountered this superlative movie, the short version: in the summer of 1969, as hippies and drop-outs were converging on Woodstock in upstate New York, tens of thousands of New York’s Black folk were gathering in Mount Morris Park in Harlem (now Marcus Garvey Park) for the Harlem Cultural Festival. Six days, over six weekends, of the best of soul, jazz and gospel music. It was filmed. No-one wanted to use the footage. And it languished in a basement for half a century – until Questlove, from The Roots, rescued it and cut the best bits together into a documentary.

And oh, sweet Lord, it’s stunning. Sure, it was lovely to be back in the Barbican cinema to see it – a favourite place of our family, where we haven’t set foot in the best part of two years. But the true glory was to be lifted up by music that filled us all with joy wholly unconfined.

Now, soul music per se may mean nothing to you. (Although I just can’t imagine how that could be. Lord, what a life…)

But live footage, at the height of their powers, of Sly and the Family Stone? Stevie Wonder? Max Roach and Abbey Lincoln? Mahalia Jackson? Mavis Staples? (Hearing Sister Mahalia take the mic from Mavis and let raw emotion ride in Dr King’s favourite hymn, Precious Lord, Take Me Home… wow.) The Fifth Dimension? Gladys Knight and the Pips? Ray Barretto? Mongo Santamaria? And – with a performance of Backlash Blues that practically raised the roof of the cinema – Miss Nina Simone herself? All of this put in the context of 1969, at the end of the decade which saw so many lives taken, famous (think Dr King, Malcolm, the Kennedy brothers) and unknown alike – and Black Power find its voice?

Come on, people. It’s beyond glorious. If music does anything to you, if it even remotely has that trick of showing you parts of your heart that just don’t come out any other way, be kind to yourself. See this.

We’re already planning to see it again.

(Update: it’s on Disney+. Glory be. The big screen is best, but this is great news too.)

The only thing that hurt was thinking of all the hours of other footage still unseen. Just imagine if it could be digitised, put online. Oh my. What a dream that would be…

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021vii8, Thursday: Passive, aggressive.

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Apologies for the long gap. I may be pedantic, but some words have old meanings that carry genuine value – the more so because of the state we’re in.

I’m torn when it comes to language. 

On the one hand, I’m absolutely alongside the idea of seeing linguistic evolution on a prescriptive rather than normative basis. Language changes with usage. It always has. And one of the joys of English is how – generally – receptive it’s been to incoming influence. 

On the other, there are some usages that are on my “die in a ditch for this, even if it’s a hopeless cause” list.*

I know. These two stances are potentially mutually contradictory. But there’s sense in it, I think, so long as one limits the second stance to a few areas where there’s a genuine, practical justification. 

So, for example, I limit my reaction to “literally” meaning “figuratively” to a mild internal flinch, although I flatly refuse to use it that way myself.

But “disinterested” used in place of “uninterested”? Hell, no. Particularly in our polarised world ([cough]Hancock and others in government giving jobs to their mates [/cough]), the secondary meaning of “interested” – that is, not something which fascinates you, but something you have a stake in – is more important than ever. Finding someone genuinely disinterested – that is, someone who can stand apart from a dispute and see it dispassionately (another great word), or at least someone with sufficient humility and wisdom to seek that position – has huge value. I don’t know another word which captures it quite as effectively. “Neutral”? “Objective”? “Unbiased”? Nope. They don’t mean the same. 

So yes: that one I’ll keep fighting for.

Slightly differently, but on a similar note, misplaced passives drive me nuts. This isn’t just parroting the Strunk & White-style simplism (ooh, that’s another word to defend) that actives are better than passives – not least because of the number of times things that aren’t actually the passive mood are quoted in defence of the position. Grrr. Not least because sometimes a passive is right: when you want to place the stress on the victim of an action, the passive can help keep the focus where it belongs. 

But far too often, there’s the “mistakes were made, lessons were learned” usage: what I call the “institutional passive aggressive mood”. The usage that obscures the fact that people did things that were wrong. That people need to learn and change. And that accountability, as opposed to blame, is important. And, if anything, makes it look like it’s your fault, not theirs, if you’ve got any further problem with them.

You know what? Don’t just listen to me on this. Go to this link, where the near-unparalleled US satirical website McSweeney’s (second only to The Onion, which published the best story in the world on Steve Jobs’ death a decade ago) does a bang-up job putting this very special linguistic usage precisely in the context it demands, with some nice animation to boot. Read it. Enjoy it. Make sure you get to the end. And see how you feel about the institutional passive aggressive then.

*As for whoever wrote the advert on the side of a double-decker bus I saw earlier this week, which used the American spelling “labeled”: well, I’m not the one who should be dying in a ditch for that.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021vi28, Monday: Interest.

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Accountability starts with keeping track of conflicts of interest. Fail to do that, and corruption comes next. As the Matt Hancock saga shows all too clearly.

Back in my banking days, part of my job – frankly, one of the less fun parts – was to help people understand not only what restrictions and controls applied to what they did, but why.

This was always, to my mind, critical. People might not agree with the “why”. Often, they didn’t. But you owe it to them to explain them. There’s a reason why “Because those are the rules” is on a list of “Things never to say to anyone, ever” in one of the most helpful books on interpersonal communication I ever read.* 

Often I could understand people’s questions. Not least because banking systems and controls frequently appeared to be designed by people who’d never, actually, met people before. Which broke Scott-Joynt’s First Rule of Policies and Procedures: don’t ever expect human beings not to behave like human beings; so design your systems with the grain of how people tick.

(The second rule, of course, is that policies are either written for people to use, or written to cover the organisation’s backside. Those written for the first purpose can often also achieve the second. Those written for the second, usually by lawyers like me, can never achieve the first. This is also the difference between focusing on risk and focusing on compliance; but that’s another discussion.)

But one set of questions always baffled me: those about conflicts of interest, and why they needed to be declared. Banker after angry banker would wave the form at me demanding why on earth the bank needed to know about the relationships they had and the businesses they were connected to. “None of this is relevant,” they’d grouch. “I haven’t done anything wrong.”

They were probably right. And it didn’t matter. Because the whole point of conflicts checks and declarations – whether general ones, or requirements to declare an interest if you’re involved in a decision which could benefit someone or something close to you – is preventative, not detective. It’s to put transparency in place before it’s needed, so that conflicts never actually arise. Which is why the broad declarations are needed: to avoid situations where there might appear to be a conflict, and thus the risk – yes, you guessed it – of corruption.

It doesn’t work that way, of course. People don’t declare. Often it’s relatively innocent, in a way: people think they’re not the kind of person who’d act improperly, to act partially, so therefore they don’t need to declare anything. Only dishonest people need to do that. And they’re not.

Balderdash. Most of us have immense blind spots when it comes to favouring those in our circle. Because we’re human. Because that’s how humans tick. So it’s not a matter of trusting honesty. It’s a matter of building in solutions where problems might arise, shining a great big spotlight on them, verifying connections, and thus obviating the problem as far as possible.

Why has this sprung to mind? It’s fairly obvious, I think: the Hancock Half-Hour of shame. The embarrassing clinch and the shameful do-as-I-say, not-as-I-do in re social distancing regulations and guidance is bad enough. Certainly enough reason for anyone with the slightest integrity to have resigned instantly, or (when it comes to his boss) to have sacked him on the spot. As is the hypocrisy of having demanded the head of Neil Ferguson, and then going on to do even worse yourself. 

But the conflicts are to my mind far more serious. There’s the obvious one, and the less obvious one. 

  • The first: the fact that Hancock appears to have given a job to a woman he was having an affair with, in secret, as well as sending work to members of her family. All while – so it’s reported – keeping comms relevant to this kind of thing out of government systems and on a private Gmail account. When the job or the contract came up, the only ethical thing to do would have been to declare an interest. He didn’t. Draw your own conclusions. 
  • The second: the fact that the only person with the power to decide whether his actions were acceptable or not is the PM. Someone not only with ethics that make Hancock look honourable, but with an immense vested interest in the outcome. 

Conflicts matter. Because being accountable matters. (Not just paper accountability; real accountability, in the sense of submission to those whose interests are not aligned with yours, and who have authority separate from your own.) Because transparency matters. And without it, you have corruption, self-dealing and disgrace.

Always. 

*The book’s called “Verbal Judo”. Setting aside the unfortunate fact that the co-(ghost?) writer seems to be the bloke who later co-wrote the ghastly “Left Behind” series of apocalyptic cod-Christian guff, it’s excellent. Written from a police officer’s point of view, but with much wider application. If I mention that other phrases on that list include “you always/you never”, “come here”, “be reasonable”, and my personal favourite, “calm down”, I hope you’ll agree there’s some smart and thoughtful stuff there.

Note: what with the family stuff that’s going on, I’m going to experiment with just having a single item for each post. That should (a) allow me to post more regularly, by not feeling obliged to have multiple things each day and thus ending up not getting stuff out; (b) make it easier to link to specific pieces. Hope that’s OK. If not, let me know.

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2021vi23, Wednesday: “Important.”

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Qualified good news about open justice – but with a significant sting in the tail. And a fascinating update on corruption definitions from an old friend.

Short thought: For anyone relatively new to the law (by which I mean the past half-dozen years or so) the idea of a life before BAILII is just incomprehensible. 

Seriously? No public access to judgments? Court decisions – which in our common law world define much of the law, and are absolutely critical to anyone resorting to it – only available at vast cost, or to the tiny minority of practitioners? Madness. Worse; injustice. 

(A good description of why this matters is in the case of R (Unison) v the Lord Chancellor. I’ll take any excuse to point to paras 65-73 because it’s one of the paradigm examples of judicial disdain, cloaked in perfect and elegant courtesy. In this case, the Supreme Court saying to the government minister in charge of the legal system: just sit down and shut up, while we explain your job to you. With pictures. And short, easy words. But the key paras for this purpose are 69-70, where the critical role of case law in our common law system is concisely and superbly outlined. With a sarcastic sting in the tail.)

So the fact that we have this resource, with vast numbers (if by no means all) of judgments from the Tribunals, via the High Court and Court of Appeal, to the Supreme Court, freely available, and searchable, is not just desirable. It’s necessary.

Having “grown up” in the law with BAILII, I find the existence in the US of PACER both staggering and an outrage. A public database of federal court decisions – great. But not only is it charged for – but the charge is $0.10 a page! As any trial lawyer will tell you, researching a case often means looking at loads of authorities, many of which will prove ultimately to be useless or even counter-productive. Most are dozens of pages long. Some are hundreds. This is just as much an obstruction of justice as were the Employment Tribunal fees that the Unison case ultimately, and rightly, defeated.

All this said, it’s worth remembering that BAILII isn’t a public enterprise. It gets about a quarter of its £230,000-odd budget from the Ministry of Justice, but it’s a charity.

Some may see this as an anomaly. And change is on the way. The MoJ has just this week announced that the National Archives will from next year host an openly-available archive of “important” court and tribunal judgments, including “Judicial Review rulings, European case law, commercial judgments and many more cases of legal significance from the High Court, Upper Tier Tribunal, and the Court of Appeal”.

I’m not going to be a curmudgeon about this – at least, not immediately. This is an advance. It’s absolutely worth having. And putting it in the hands of the National Archives, rather than the MoJ, is the right move.

But there is a problem. The words “important” and “of legal significance” do a lot of heavy lifting. Again, any trial lawyer will tell you that it’s not always the obvious cases that are worth having. Sometimes, the “legal significance” won’t emerge for some time, till various authorities and competing bits of jurisprudence settle out over time. This could leave huge gaps. And I want to know: who gets to decide what’s “important”? 

I’m not alone in this. Smarter and better minds – such as Paul McGrath and Natalie Byrom – have beaten me to it.

The counter to which could be: BAILII will still be there. Well, yes… but as part of this new deal, the MoJ will stop its funding to BAILII from next year. That’s a huge slice of budget. I’m really worried about its future. And its loss would be a loss to us all.

Someone is right on the internet: As anyone foolish enough to expose their thinking online (but not irretrievably arrogant) will tell you, one of the greatest joys of this game is when something you write prompts someone smart to help you expand your mind.

Tristram Hicks, former Detective Superintendent of the Metropolitan Police, has been kind enough to do that. Tristram, whom I’ve known on and off for a good long while, specialised during his policing career in economic crime: fraud, asset recovery, money laundering – and corruption. 

He’s reminded me firstly that I got the standard corruption definition wrong in my piece on Monday. I should have said: “abuse of entrusted power for private gain”. That’s “private”, not “personal” as I had it. 

In the context in which I used it, I’m not sure there’s a great difference; “private” in the sense of “for the sake of the organisation itself, not for the sake of its mission” works better than my explanation, but perhaps not materially.

But Tristram points me to a piece he wrote for Sussex University’s Centre for the Study of Corruption, which I commend to any reader of these pages as an excellent use of 10 minutes of their time. (It’s not long – less than 10 sides of A4.) Entitled “Why are there so few domestic corruption cases in the UK?”, it explores some of the familiar (no resources; no incentives; no measures) reasons why domestic corruption goes largely uninvestigated, unprotected and thus unpunished – but also some more unfamiliar ones. 

(He doesn’t mention my particularly caustic and cynical take: that successive governments are so wedded to the UK’s image as a “clean” place that except in certain specific locations, such as prisons and border control, there’s simply no incentive to lift the rocks and look underneath. In case we find anything…)

But alongside this, Tristram also points out that my mistaken definition is the one the Government adopted for its 2017-22 Anti-Corruption Strategy, although it wrongly attributed its wording to Transparency International (the source of the “private gain” one). And then it added a further gloss: the corruption, by the Government’s definition, had to “benefit a third party – an individual, business or other organisation”. Like Tristram, I don’t believe this is right. At its most basic level, the additional condition might be interpreted as ruling out people within the organisation in question – particularly those running it, whose motives might well be mixed up with or attributed to the organisation itself. And even if that’s not the case, this definition carefully exempts the kind of “institutional corruption” we were discussing on Monday.

Not good enough. We’re not as clean as we think we are. Narrowing the definitions to exclude some of the ways in which that manifests itself only makes things worse. Thanks, but no.

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2021vi21, Monday: It doesn’t have to be “personal” to be corruption.

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Organisations can be corrupt, not just people. As a new report shows. And without an public duty to be transparent, that will be the rule, not the exception.

Short thought: There are a million definitions of corruption. It’s one of those “know it when you see it” kinds of words, and an exact definition is probably unhelpful. 

(Put up with me here. I’m going to wander off into a bit of a discursion. But I promise: it’ll come back to something current, and important. Something that ought to make you pretty angry. It did me.)

You can see this in one of the most common ones, which boils down to “the abuse of entrusted power for personal gain”. It’s not bad, so far as it goes. But there’s a lot of freight in those words, and in each of them – and that can lead us in unfortunate directions.

(One useful omission is any reference to “dishonesty”. For years, there’s been legal argument about whether dishonesty was an essential element in corruption. In the UK, it’s now pretty settled that it doesn’t – and that’s a good thing. “Corrupt” and “dishonest” are overlapping circles: you can be either without the other, although often they co-exist. Think, for instance, of blatant, balls-out abuse of power where someone simply takes advantage of their position without even bothering to hide what they’re doing. Not uncommon, and not in the slightest dishonest. But corrupt all the same.)

So what do I mean by “freight” in the words? This is where I behave like the stereotypical barrister: picking apart the language. But there’s a point, as I hope you’ll see. Taking it a step at a time:

  • “Abuse”. Not all uses of power for personal gain are necessarily corrupt. A decision on behalf of your organisation might make you better off, but also be in the organisation’s best interests – and those of its stakeholders. No abuse there. No corruption.
  • “Entrusted power”. An essential element in how law in England defined corruption used to be that an agency relationship needed to exist. This is still there in civil matters, to an extent: it’s trite law now (following FHB) that if someone acting for you takes a bribe, the law sees their gain as in fact yours, and which that agent (holding it in trust for you) therefore can’t lawfully use for themselves. As recently as 15 years ago, amid arguments over what ultimately became the Bribery Act 2010, many pushed for explicit inclusion of an agency requirement in the proposed new statute. Ultimately that idea died; but we still have the essential idea that bribery, at least (and corruption more generally) is about what you do with authority that you’ve been given and which you wield on others’ behalf.
  • “Gain”. This is often misinterpreted as something strictly financial. In the UK, at least, that’s not the case, at least so long as bribery is concerned: the offences in the Bribery Act are committed for the gift or receipt of “financial or other advantage” (see for instance s1(2)(a) and s2(2)). Unlike in the Fraud Act 2006 s5, where “gain” has to be in property or something financial, an intangible advantage will qualify. Such as, for example, the preservation of a reputation, or the burying of bad news.
  • “Personal”. This, I’d suggest, is also a dangerous one. It gives the impression that corruption is solely and always about individuals – whether acting in their own favour or for (for instance) their families or friends. 

Now we’re at the point. Sorry it took this long. The reason for this textual exegesis is the Daniel Morgan Independent Panel, whose report (all 1,200-odd pages of it) was finally released last week. For the uninitiated, it tells a thoroughly grubby tale of the grossly-incompetent investigation, over decades, by the Metropolitan Police of a 1980s murder of a journalist.

But worse than the incompetence is what the Panel’s report says is the Met’s “institutional corruption”. Partly because of the prevailing suspicion that Met officers were far too close to crooks for comfort, as they were with private investigators who hovered in the hinterland between the two. 

But mostly because of what appears to be an eight-year effort by the Met to obstruct the Inquiry, whether by failing to produce evidence, blocking access to systems, or otherwise. The Panel doesn’t mince words:

In failing to acknowledge its many failings over the 34 years since the murder of Daniel Morgan, the Metropolitan Police’s first objective was to protect itself. In so doing it compounded the suffering and trauma of the family.

…The lack of leadership, the reluctance to confront serious issues and the refusal to be publicly and internally candid about failings and deficiencies within the organisation, in this case and others, engenders distrust among the community served by the Metropolitan Police and within the organisation itself. The support of that community, and the confidence of good police officers in the organisation which they serve, is vital to the delivery of effective efficient policing. It is to be hoped that the findings and recommendations contained in this report will lead to a change of culture and ethos throughout the police service.

One could say that “institutional corruption” is a misuse of language. Is it really corruption for an organisation to drag its feet just to try to stifle criticism and keep its incompetence under wraps? That’s not “personal gain”, is it?

Wrong. What we’re talking about is, I think undoubtedly, the abuse of entrusted power. And it may not necessarily be for the individual gain of those making the decisions, but it’s definitely to aid the organisation at the cost of those it serves. Perhaps “personal” isn’t the right word; but to the extent that we’re talking about placing its own interests above the demands of its assigned duties and obligations, it fits. 

Another criticism might be: well, isn’t self-preservation an inevitable habit of any large institution? Of course it is. But there’s still a dividing line. We’re back to the “know it when you see it”. There’s vigorous PR. And then there’s this. They’re not the same. It’s facile, and I think foolish or in some cases dishonest, to suggest otherwise. 

The Morgan report is huge. Few will read it. But the summary is less than 20 pages. It tells an entirely unedifying story. And, to anyone concerned that those who protect us can be trusted not to privilege their own concerns over ours, it’s in my view essential reading.

Someone is right on the internet: A key recommendation in the Morgan report is the imposing of a “duty of candour” for public servants and public institutions. In other words, they would have a responsibility to be proactive in informing the people they claim to serve about what they’re doing and how.

This topic is picked up by David Allen Green in the latest of a set of posts concerning what he believes is a prerequisite for meaningful public service reform. David points out, perhaps slightly caustically, that calls for such reform are frequent (and the person voicing them is “usually Michael Gove”), but are rarely accompanied by any acknowledgement that without an imposition of transparency – that is, the obligation to disclose information they don’t want anyone to see – such calls are essentially meaningless. They are, he says, 

Nothing but sophistry and illusion.

I think he’s right. Governments (and public bodies) in general are loathe to let sunlight into what they do, but I don’t think it’s an exaggeration to say our current administration takes this to an extreme: whether it’s changes to judicial review, or a backstairs bit of the Cabinet Office making sure freedom of information requests are hobbled, or an apparently academic disquisition on whether judges are trespassing on the rule of law in cases concerning (also) freedom of information, the trend is to lock down, not open up. To avoid scrutiny. To obscure transparency.

In a nutshell: to be unaccountable.

This cannot be right. Particularly in our majoritarian polity, where the combination of first-past-the-post elections and parliamentary supremacy puts immense power in the hands of the government of the day, trammelled only by conventions which this administration doesn’t seem to recognise, transparency is critical if those running the show are to be held to account. 

Mind you, I’d be saying the same thing were another party to be in power. Power corrupts. When it’s wielded without accountability, in the dark, its abuse is practically inevitable. 

Ah, you might say. But you’re forgetting Hanlon’s Razor: that wonderful (and I’ve always believed accurate) warning against assuming malice where something can just as easily be explained by incompetence. (More pithily put as: “Cock-up is far more common than conspiracy.”)

No. I haven’t. If anything, that’s still more important. Errors, mistakes and negligence only get learned from if they’re recognised. Institutional pressure to sweep cock-ups under the carpet is always intense: yes, partly for legal reasons, but as often simply to save face. Without transparency, the same errors happen. Over and over again. 

And we all pay.

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2021vi16, Wednesday: Domestication.

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Pets deserve eulogies; cats especially so, given that it’s the junior partner in the relationship who’s writing them. And an example of the fake “war on woke”. From a silk, no less. For shame.

Someone is right on the internet: The relationship between cats and people is a nuanced one. That may be one of the reasons I’m more a cat person than a dog one. I recognise the beautiful straightforwardness of the dog-human connection: at its best, an honest mutual loyalty (albeit with a clear hierarchy as well). But the more mercurial, less owner/pet way that cats and the humans they cohabit with interact is more to my taste.

John Naughton captures that in a lovely elegy to Zoombini, one of his cats, who died last week. Should pets get eulogies? I can’t imagine why not. We may anthropomorphise shamelessly as a species, but we do so because – I think – we have an inbuilt need for relationships. And you can’t have a relationship with something unless you imbue it with some sort of self – even if it’s a partially imaginary, reflective one.

John writes:

She was a remarkable animal — the most intelligent cat I’ve ever known. She was wily, perceptive, affectionate, needy and could be imperious, so much so that we used to joke that she conformed to PG Wodehouse’s explanation of why cats are different from dogs — they know that the ancient Egyptians worshipped them as gods. She could never understood why we — her servants — never rose at daybreak, and made her displeasure vocally plain. Although we had a perfectly good cat-flap, she would on occasion sit outside the back door yowling insistently — and of course I would eventually cave in and open the door, at which point she would strut in, purring ostentatiously at the triumph of the feline will.

This is instantly familiar to those of us with cats. Our own, Iroh (the name comes from here) who’s not quite a year old and has been with us for little more than seven months, is now wholly a member of the family. To lose her, even now, would leave a gap of significant proportions. For John and his family, with almost two decades of intimately shared existence, the gap will be huge. I feel for him.

John also observes – a day or two later – what appears to be a sense of deep loss in Zoombini’s sibling. I have no trouble in believing that there’s more to what he describes than mere instinct, or habit. A cat’s inner life is likely to be wildly different from our own. But I’m confident it’s there. And it’s definitely independent of us two-legs who give them house room. 

Much of John’s description of Zoombini maps directly onto Iroh – particularly her insistence, at sun-up, that the world should rise with her. And, of course, his insight about the direction of the cat-human relationship. As I’m not the first to notice, it’s clear to any thinking cat “owner” (such an inapposite term!) who, in fact, domesticated whom. 

I think it was Pratchett who observed that cats only tolerate us, amusedly, until someone invents a tin opener that can be operated by paw. That’s overdoing it: there’s definitely affection in the relationship, albeit perhaps the indulgent affection of a supreme monarch for minions she’s rather fond of. But Iroh, as the picture shows, is clearly a frustrated biped – and her frequent attempts to manipulate keys and door (and window) handles indicate that if anyone were ever to give her opposable thumbs, we’d be in deep trouble…

Someone is wrong on the internet: OK, OK. I promised myself I’d try not to do this – do a “SIWOTI”. But it’s so closely linked to what I wrote about on Monday concerning the weaponisation of culture wars for malign political ends that it feels obligatory.

The nutshell version, thanks to Joshua Rozenberg:

  1. Hardwicke Chambers, a long-standing commercial set of very high repute, announced yesterday that it was changing its name to Gatehouse. A year ago, it had come to recognise that Lord Hardwicke – after whom it was named – was the co-author of a 18th-century legal opinion which had played a significant role in buttressing the survival of slavery for many years. It decided it was time for a change.
  2. So far, so good. Until Lord Wolfson, a commercial silk himself and now – importantly, for this purpose – a justice minister, decided to wade in. In a series of tweets, he implied that this was a distraction from “the important business” of fighting racism and improving diversity – asking whether because Lincoln’s and Gray’s Inns (two of the four Inns of Court, to one of which all of us barristers must belong) were named after advisors to Edward I, and he’d expelled Jews from England in 1290, they should be renamed too.

There’s simply no meaningful comparison to be drawn between these two things. Lord Wolfson’s prowess as an advocate is not in doubt, so why he’s making such a snide, weak and tendentious argument is beyond me – unless, of course, he’s simply looking (or has been instructed) to score cheap and deliberately divisive political points in the name of the “war on woke”. 

For shame.

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