2021v19, Wednesday: Thingification.

The first of a series about what happens when we make things out of stuff (and ideas) that we shouldn’t. And: why grift isn’t good.

Short thought: I’m not always a fan of neologising. (Is there a word, akin to onomatopoeia, for “doing the thing you’re just criticising”, since I’m not convinced that there’s actually a verb that derives from the noun “neologism”? Oh. Yeah. Hypocrisy. Oops.) 

But a pair of posts (first one heresecond one here) – neither terribly new, but fascinating – do the job beautifully. 

The word? “Thingifying”. 

They’re all about the process by which we tend, as humans, to treat all that we see and experience as objects: specific, manipulable, concrete. How that obscures ideas and concepts. How it shrinks actions and processes to snapshots.

And perhaps most importantly, how it can obscure – often deliberately – agency.

The example in the second of the two pieces, which I won’t spoil more than this sentence, is “umbrellas are non-refundable” – as if this is not so much a choice, albeit probably an entirely fair and sensible one, by a store-owner faced with people returning umbrellas once it stops raining as though they were just for rental, but instead some intrinsic quality of umbrella-ness.

But think beyond this. “The situation is regrettable.” By whom? Why? Is that just how it is, or has someone done something dumb, damaging or malicious to bring the situation into being? Echoes there of “mistakes were made”, or “unfortunate circumstances”. Ouch.

Just reading these two pieces has sparked half a dozen lines of thought into thingification – some arising from my own experience, some from things I’ve read, and one or two which even relate to law and advocacy (honest). Over the next few pieces, I’ll try to break it down a bit. 

If this sounds turgid beyond belief, I’m genuinely sorry. (This is not a non-apology “sorry if you’re thin-skinned enough to feel offended” quasi-insult; honestly, I apologise that the next few pieces might not work for you, but this is an itch I feel really compelled to scratch, and I’ll try to spread the net wide enough so there’s something for everyone.)

I genuinely think there’s something interesting going on here, with significant ramifications. Stay with me. Let’s see where it goes.


Someone is right on the internet: While we’re mulling that one, as usual (this one’s a sorry-not-sorry, I have to admit) my thoughts stray to fraud.

Or rather to grift. An excellent piece of writing by Can Duruk highlights the key distinction between fraud and grift. And there are interesting and uncomfortable parallels to the distinction between lies and bullshit. Can points out that a true modern grift…

…is not run behind closed doors. Instead, you do it fully out in the open, screaming about it from the mountaintops. While greed is about focus, grift is about shamelessness. With greed, the game is to find the path between the rules with the most profit. Grift, on the other hand, ignores the rules altogether, armed with the knowledge that with shamelessness comes zero social costs, and with absent enforcement, no real legal risk.

One of his examples is Elon Musk, in which context he points to what amounts to a pump-and-dump scheme of publicly backing Bitcoin, riding the resulting surge as a bunch of techbros who hang on his every word jump aboard the HODL train, then selling a chunk of Tesla’s BTC holding before declaring that oh, yes, actually it’s an environmental nightmare not entirely in keeping with the noble business of making electric cars. Nice.

Or, as Can puts it:

Look, I am struggling to string together words into legible sentences here. Just like there’s no real person that thinks Bannon deserves his accolades as a wellness warrior, no one who doesn’t put laser eyes in Twitter bio thinks that Elon Musk didn’t know about the environmental horrors of Bitcoin. Or that he could not get away with a pump and dump scheme as blatantly run as this one. I know we are all amused by his antics, and as a car-guy who doesn’t even drive, I have somewhat of a soft spot in my heart for the Model S. But the grift here is so, so obvious and run so transparently that it becomes borderline paralyzing. I do wonder if I am not getting something here?

This also sparks thoughts about the Online Harms bill which the UK government published last week. In amongst the publicity was a comment that the bill would include: 

Further provisions to tackle prolific online scams such as romance fraud, which have seen people manipulated into sending money to fake identities on dating apps.

Well, lovely. Three big problems, though:

  1. The bill only deals with user-generated content. So anyone running a scam and willing to pay for it to be advertised is just fine. Rather missing the point, therefore.
  2. I’ve been through the bill, and I can see precisely nothing that deals expressly with any kind of fraud or scam. At best, it might be in clause 41, which defines “illegal content” to include content amounting to a “relevant offence” – further defining that as either an offence whose intended victim is an individual (although not one which concerns “the performance of a service by a person not qualified to perform it”) or one which is defined in further regulation. Honestly, I’m baffled. What have I missed?

That’s only two problems. The third is too big for a numbered paragraph. And it’s the old favourite: fraud is a huge problem. It hurts huge numbers of people, terribly. And yet, as always, no-one’s actually coughing up to resource dealing with it properly. 

To be fair, the Online Harms publicity does promise a “Fraud Action plan after the 2021 spending review”. And apparently the DDCMS is going to consult on “online advertising, including the role it can play in enabling online fraud, later this year”.

Reassured? Me neither.


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2021v17, Monday: It’s not just about you.

Why an apolitical workplace is a luxury only the comfortable can afford. And a cut-out-and-keep caustic guide to AI ethics.

Short thought: One of the more interesting “little firms that could” in the online services space has long been the outfit currently known as Basecamp. Its founder, Jason Fried, has been voluble – and thoughtful and interesting – about how to do good work remotely, long before the past year made that a necessity.

But now he and David Henmeier Hanson, known as “DHH” (together the senior management of Basecamp), have solidly put their feet in it. I won’t rehearse the background in detail, because others have done it far better. The tl;dr version (and this is a really thin summary of a big story):

  • Basecamp employees – a sizeable chunk of the 60-odd staff base – started to work on diversity and inclusion issues. Management blessed this.
  • In the process, the fact that for many years the firm’s internal systems had hosted a list of “funny customer names” – many of which, inevitably, were those of people of colour – came in for understandable criticism.
  • Initially, management were onside with this criticism; indeed, they owned their part in the list’s maintenance over the years.
  • But then it got ugly. A number of staff saw the list in the context of ongoing institutional discrimination – not just or even not mainly at Basecamp, to be clear, but societally. Management (Jason and DHH) pushed back against what they seemed to see as an over-reaction.
  • Jason and DHH announced that political discussion was now to be off-limits. (They later amended this – albeit apparently without making it clear that there was an amendment – to it being off-limits only on Basecamp’s own chat and comms systems.) They also said they would withdraw benefits, instead simply paying the cash value thereof, so as not to be “paternalist”.
  • This caused uproar. An all-staff meeting saw one senior and long-time executive play the “if you call this racism, you’re the racist”, “no such thing as white supremacy” card; he resigned shortly afterwards. As many as a third of the staff have now also taken redundancy.
  • This might seem like a tempest in a teacup. Small tech firm has row; news at 11.

But it’s not. Tech is still overwhelmingly white and overwhelmingly male, particularly at its senior levels. (It may not escape your notice that the Bar isn’t much better.) Which means its leadership often misses the key point, which is this: when you’re not rich and comfortable, when your life has incorporated a lot of moments where you don’t get to expect everything will go smoothly, when you don’t have that much of a safety net, when large numbers of people at all levels of power get to mess you about just because they can, without you having much recourse, just about everything is political.

Healthcare is political, if its availability and quality vary depending on where you live and what you look like. (Don’t doubt this: I’ve seen healthcare professionals, who I’m certain would be genuinely horrified by conscious prejudice, treat Black women with breathtaking disdain compared with how they talk to people like me.) Pay is political. Work is political, because expectations and yardsticks vary unless we pay honest attention to how they’re generated and applied.

Put simply: cutting political and social issues out of the workplace is a luxury only comfortable people can afford. A luxury which exacerbates, rather than diminishes, the power imbalance built into to workplaces by the sheer fact of people’s dependence on a paycheque. (This, by the way, is why in the UK and Europe we say people can’t consent to the use of their data in the workplace. If the alternative to consent is “find another job”, that isn’t free consent for anyone without a private income.)

For Jason and DHH to take this approach is to forget that the only people for whom politics doesn’t relate to business are those who get to dictate the terms of what goes and what doesn’t. The blindness appears to dismal effect in a post by DHH on “Basecamp’s new etiquette at work”:

Just don’t bring it into the internal communication platforms we use for work, unless it directly relates to our business. I’m applying that same standard to myself, and Jason is too.

Well, that’s nice. Reminds of that line about the right of the rich to sleep under bridges. I wonder why.


Someone is right on the internet: On a somewhat related topic, issues of ethics in AI are big news, at least among geeks. Which is as it should be: the more AI or quasi-AI comes to control, dictate or direct our lives, the more concern we should have about whether the black boxes in question are exacerbating structural or other unfairness or inequality. It’s not good enough to just blame – for instance – algorithms that can’t recognise Black people on “computer says no”. People make decisions, and they must be accountable.

(This, of course, is why Article 22 of the GDPR prohibits “solely automated processing, including profiling” – although it’s by no means impossible to get round this by inserting a human into the final stage of the process, or by making statutory arrangements to allow for it.)

Big Tech isn’t that comfortable about this, so it seems – as shown by Google’s removal (whether it’s officially sacking or not isn’t wholly clear, but it’s effectively an ejection anyway) of two senior women working on AI issues.

So MIT Technology Review’s caustic A-Z of how to talk about AI ethics is horrifically on the nose. A couple of examples will suffice, I hope, to encourage you to go and read it:

ethics principles – A set of truisms used to signal your good intentions. Keep it high-level. The vaguer the language, the better. See responsible AI.

human in the loop – Any person that is part of an AI system. Responsibilities range from faking the system’s capabilities to warding off accusations of automation.

privacy trade-off – The noble sacrifice of individual control over personal information for group benefits like AI-driven health-care advancements, which also happen to be highly profitable.

And the best one comes first:

accountability – The act of holding someone else responsible for the consequences when your AI system fails.

Ouch. But yes.


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2021v12, Wednesday: Loss.

Short thought: I’m sorry. This is going to be far shorter a thought than usual.

My fellow member of Chambers, Tim Nesbitt QC, died suddenly a few days ago. It hurts.

I didn’t know Tim particularly well. I’ve worked with him I think three times.

But he leaves a huge hole. 

I can’t remember a conversation with him where I came away feeling anything other than better. I can’t remember him ever having been less than helpful, warm, funny. And most importantly, kind.

He was also a fabulous advocate. That must be said. But fine advocacy (and the razor-sharp mind behind it) and generous humanity don’t necessarily go hand in hand at the Bar. (Although it’s more common than some might cynically suspect.)

Tim exemplified this tendency, of brilliance coupled with kindness. Perhaps even the one feeding the other, and vice versa.

We miss him. We can honour him by following his lead. We’ll fail. Of course we will – that’s part of being human. But we can make it a priority. And that’s most of the battle.

Bye, Tim. God bless.


2021v10, Monday: Put yourself in the picture.

No-one gets elected unless they can tell a story enough people want to be part of. Will Labour ever learn that lesson again?

Short thought: Those bored to tears with me banging on about stories should look away now. Because in the wake of last week’s local elections in the UK, here we go again.

I don’t know what a Labour-run country would look like. They haven’t told me. Or if they have, I’ve missed it. And I’m really not oblivious enough to news to have overlooked it.

I know what the Tories want me to think a Tory-run country (which is what we currently have) looks like. I don’t believe they’re either willing or (more importantly) capable of producing the levelled-up, non-London-centric future they’re describing. I think an administration based on flagrant lying, gaslighting and corruption will probably get found out one day.*

But I at least see the picture they’re painting. And I can understand, particularly in areas which have been so much at the back of the queue for decades that the front is only visible with a telescope (and having grown up partly in Stoke-on-Trent, this isn’t just theoretical to me), how it seems far better than any alternative.

That’s the thing. Yes, there’s the vaccine bounce. Yes, there’s the relief of re-opening – and incumbents (let’s not forget that many Labour and other incumbent administrations actually did quite well) almost always benefit when there’s an economic or social upswing.

But political parties are social engines. They’re powered by human attention and (to some extent) trust. And trust and attention are – yes, here we go again – narrative-driven.

Put simply: you vote for someone when they tell a story that enough people feel they either want, or need, to be a part of. And to do that, you need to act, not just react; and you need to find ways of telling your own story, on your own turf; not the turf the other parties define.

Labour has forgotten this. It forgot in 2010-2015, when it allowed the “Labour spent all the money, so austerity is inevitable” lie to take root. It forgot between 2015 and 2019, when Corbynmania had a story of sorts – but one which seemed explicitly to discard or disdain large numbers of people whose votes, to be frank, Labour needed if it was to win power.

And national Labour, at least, seems to have forgotten it now. It focuses on the stories it tells itself (bring back Corbynism! No, Blairism for the win!) instead of the stories it needs to tell the rest of us. And that’s disastrous.

I want to know how we free up the country outside London. I want to know how a post-pandemic UK could find ways of making sure a kid growing up in Southend, or Wigan, or Warwick, or their Scots or Welsh equivalents, doesn’t have to move to London to have the life they deserve, keeping their cash local and their community thriving. I want to know how workers can be protected and their employers encouraged and incentivised to avoid zero-sum games. I want to know how we can integrate facing down the climate threat into this new model. I want to know how despite all this London can remain the thriving, bubbling, economic and social wonder that it is – but not at the cost of elsewhere. (Other countries manage to be truly multi-centred nations; why not us?) I want to know how we can see the rest of the world and its peoples as opportunities, not threats, and love difference as the vital ingredient of life that it is, without using it as a weapon. How we can stop using the EU as a bogeyman, stop pretending that other trade arrangements will wholly replace the ones we’ve shut the door on, and start making Britain after Brexit work without constantly lying about it.

(For the climate in particular: I warmly recommend Kim Stanley Robinson’s Ministry for the Future, a new book telling – as if in retrospect – one story of how the world dealt with impending climate catastrophe. It’s fiction, sure; but it’s an example of how to paint a word picture that one wants to climb into. As Todd Tucker puts it: it should be “required reading for anyone that writes white papers for a living”.)

All this can fit into a grand narrative. One which is doable, so long as you’re in power. And almost none of this is going to come from this government, which prefers pork-barrel to policy.

Here’s a picture I want to paint myself into. A story I want to be a character in. A future I’d like to believe in.

But I’m not hearing it. Not from anyone. And that makes me cry.

*Although I always bear in mind the investing dictum that the market can stay irrational longer than you can stay solvent. The same can apply to the electability of incompetent narcissist populists, I fear.


Someone is right on the internet: I’ve been sleeping appallingly recently. Insomnia’s been a plague for years, but the past few months? Worse than I can remember. It’s left me often incapable of functioning after about 4pm. And then I wake up before 4 the following morning… and the cycle continues.

There are things I can and should do. Meditate more. Eat better. Talk things through. Exercise. Read rather than rely on devices. I’ll be working on them all.

And on the subject of reading, having something thought-provoking about sleep may not help, but it sure feels as though it might. So this, from Wired on how octopuses seem to dream, is perfect.

The answer appears to be: they have REM sleep, but only for a fraction of the period that we do. Could it be because, as they seem to dream, it affects their skin colouration – normally an expression of mood and a defensive tool for camouflage? Is the evolutionary risk of a long REM period just too high?

No idea. But it’s great to think about. And in any case: sleep study and cephalopods, all in one. Two absorbing interests covered at the same time. What’s not to like?


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2021v7, Friday: Finding family.

Why I welcome the fact that I ache. And a quick link to a writeup of one of the most interesting Supreme Court cases around: Lloyd v Google.

Short thought: “I ache, therefore I am,” as Marvin once put it. “Or perhaps I am, therefore I ache.”

I ache. And I’m happy that I do. Because it’s 48 hours or so since I went back to capoeira for the first time in months.

It’s not the exercise that I’ve missed – from time to time I’ve stopped mid-run and trained a little, solo, in the park.

No. It’s that even for an introvert like me, the community of training with others in this most organic and communicative of martial arts has been a painful thing to lose. That feeling as your mind, soul and body ease into the ginga, the music wraps itself around you, and techniques start to flow the one into the next. As you smile, full of malandro, at the person you’re playing with. As the physical conversation between you ducks and weaves, slow, fast, slow.

God, it’s glorious. Although God, it hurts a couple of days after. I’m 50. I don’t bend as well as once I did.

But every ache is a benção, a blessing.

Because I’m back with family. Or rather, back with one of them.

Here’s the thing. We all have multiple families, which sometimes – but not always – overlap. If we’re fortunate (and my heart breaks for all those for whom this is tragically, painfully, sometimes dangerously not true) our first is with blood.

Another comes from the person we choose to bond our life with: spouse, partner, name them what you will. (My good fortune on this front is boundless; a wife and daughter who are both beyond compare.)

And then there are all the other communities which you find. Or which find you. Some of which will themselves wrap you in love and care, and so will become found families in themselves.

For all but the most wholly solitary among us, these multiple families are the earth from which our lifelong learning, growth, evolution, even our ongoing ability to be human, springs.

My capoeira family is one such. I’m blessed to have so many families. Blessed.

So, yes. I ache. Therefore, I am. Thank goodness.


Someone is right on the internet: Despite my best intentions, I wholly failed to make time to watch the submissions in Lloyd v Google, which sees the Supreme Court wrestle with some fundamental ideas in privacy and data protection.

I’ll try to make the time, then I’ll probably write something. (A radical idea: digest the source material before opining. Good lord.) As usual, the SC has the video of the hearing up on its website at the above link. Open justice for the win.

In the meantime, the UKSC Blog does a great job of summarising the submissions: a preview here, then a rundown of Day 1 and Day 2.

If privacy is at all important to you, and goodness knows it ought to be – it (along with worker status) seems to me to be the critical question of how individual rights interact with contract law and business for the next few years – the upsums richly repay a read.


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2021v5, Wednesday: Stories.

On learning advocacy from story-telling, across genres and styles. With a plug for Carly Simon, John le Carré, and a recent opponent of mine.

Short thought: I can bore for Britain on the subject of story-telling. Indeed, I already have, several times.

But this is because it’s important. For us all as human beings, for whom stories help us understand who we are and – as critically – who others are. (And sometimes, more malignantly, paint others in ways which traduce them.)

And particularly for us advocates. As I’ve said before, a big part of advocacy is in crafting the narrative that makes the facts sing, which simply makes more sense than the other side. It’s not the only thing. But it’s a big thing.

Most of us advocates, unsurprisingly, therefore love language. And we owe it to ourselves to learn from its usage, not only in our own world, but in others.

Songs, for instance. Sure, a good lyric is a million miles away from what you can put before the High Court. But the greatest song-writing is often a peerless exercise in narrative concision. A few verses to relate a whole tale.

A fabulous, fabulous example of this is an old favourite of mine: You’re So Vain, by Carly Simon. Putting aside the frankly tedious argument about whether it was Warren Beatty or someone else who inspired it, it’s essentially a story told – stripping out repetitions of the chorus – in fewer than 200 words.

And what words! I could choose any line, but this one stands out for packing the maximum meaning into only five words:

“And your horse naturally won.”

That adverb does so much work. In context, it’s practically a story all of its own.

Seriously. Listen to it. See how the story builds. See how every word works. And learn.

Fiction, of course, is the same. This is one reason I love audiobooks. When read by a good narrator, in circumstances where you can pay just enough attention, the words of great writers sing out to you and leave you breathless.

Again, an old favourite. While running recently, I’ve been re-listening to an unabridged reading of Tinker Tailor Soldier Spy, John le Carré’s peerless classic of loss, regret and espionage – although frankly the espionage, as with much of le Carré’s work, was the canvas rather than the paint. The first few chapters kept hitting me with phrase after phrase, each more perfectly formed than the last, each with every word working.

Will I use it directly? Of course not. But will I reflect on the usage, the choices underlying it, and seek to learn? Without a doubt.

The lesson here for me: narrative is everywhere. Much of it is dross. Some of it is breathtaking. The latter is a masterclass for those, like me, who tell stories for a living. And we ignore it at our, and our clients’, peril.

(As a sidenote here: I heard a wonderful piece of narrative advocacy yesterday, from my opponent in an employment tribunal hearing. I’ll say nothing about the content of the hearing, on which judgment has been reserved. But that doesn’t have to stop me from saying that Rad Kohanzad, of 42 Bedford Row, told his client’s story beautifully, simply and effectively, weaving his submissions naturally into the tale as he spun it. Not too effectively, I hope; obviously, I want to win! And, albeit in a different metre, I think my story-telling was pretty sound too. But credit where it’s due.)


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2021v3, Monday: Miscellany.

It’s a bank holiday. I have to work. So I’m afraid a linkfest will have to do. With a quick shout about sleaze at the end.

Incidentally: do subscribe at http://remoteaccessbar.substack.com if you fancy getting this automatically. Now, advert over. Let’s get on.

Someones are right on the internet: It’s the early May bank holiday, and I’ve got a hearing tomorrow at 10 for which the papers only arrived late last week. Life at the Bar… so I fear this will have to be a brief canter through some stuff worth (I think) reading:

  • First up, a rather nice discussion of why an absence of good faith doesn’t equal bad faith, relating to a 2019 case, by someone I’m up against in an ET case soon. Scouting out your upcoming opponents is always a good idea. Not least because, as here, you can always learn something.
  • Next, an absolutely stellar piece of writing from one of the UK’s foremost experts on constitutional law, Professor Mark Elliott. He reviews the Government’s apparent intention to legislate on judicial review (going far beyond what its own review advised), and identifies the view of the constitution which seems to underpin it. Which is, to say the least, a rather heterodox and – to these untutored eyes – deeply untrustworthy one.
  • And finally, the wonderful Separated by a Common Language (a site which looks at different usages in English, particularly but not exclusively across the Atlantic), examines the word sleaze. As I may have mentioned before, I hate the word as it’s used here in the UK. Far too often it’s a synonym for corruption, and thus a way of avoiding having to face up to just how bent parts (not all, thank goodness, but critical parts) of our polity actually are.

Short thought: I wasn’t going to editorialise beyond the links, but I have to mention something here. Out walking back from the pub (an actual pub! Wow) with a mate, he commented on how much of a time-waste it felt like the whole “Boris’s flat” thing felt like, given everything else around. I can empathise with his view. But the point of the “flat thing”, and indeed all the rest of the miasma of misconduct, arrogance and downright crookedness that envelops Johnson is not that it’s a one-off, but that it’s symptomatic. Symptomatic of incompetence. Of greed. Of a rules-don’t-apply-to-me mentality which disdains accountability, in favour of a kind of 21st century droit de seigneur. Of an almost feudal sense of right, without any of the balancing obligations which underpinned, at least in theory, every feudal system which has ever survived more than a handful of years, and belies Johnson’s claim to be any kind of real historian.

And why is that important? Because all of the critical stuff that my friend, justifiably, wants to hear about – and still more wants those in charge to get on with, and get right – needs competence, and transparency, and accountability, if it’s to be done at all well. More than ever, in the wake of the past hateful year, we need people for whom the public interest means something beyond “what makes me win the next election” or “what owns the libs”.

That’s why the flat thing matters. That’s why the Arcuri affair matters. That’s why the refusal to take misconduct (Patel) or incompetence (Williamson) seriously matters. That’s why the “VIP lane” for Covid kit matters. That’s why the utterly unserious approach to what would be called “corruption” if it happened in a country at the bottom of the Transparency International CPI index matters.

Because they all point to an administration to whom you, and I, and anyone else outside the charmed circle of mates and muckers, don’t matter – except on voting day. And even then, not often.

That’s not how to solve our huge problems. It’s how to make them worse.

(By the way: it’ll come as no surprise to anyone reading this that I’m not exactly a fan of the current government. Right now, though, I don’t care about Labour vs Conservative. Even though I’m something of a leftie, I’d take a competent, relatively honest Conservative government over an incompetent, dishonest Labour one, because we’ve got work to do. But our current administration is neither competent nor honest. And shows no signs of ever being either.)


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2021v1, Saturday: What’s measured matters.

When measures become targets, they’re useless as measures. But when something isn’t measured at all, it’s invisible…

Short thought: a rare day off yesterday with spouse. So nothing written. Catching up today, I spotted one of the terrifying number of tabs I currently have open and awaiting attention, which dealt with Goodhart’s law. And that took my mind to fraud.

Yes, I know: for me, that’s a fairly short leap from practically anywhere. But bear with me for a moment. Goodhart’s Law, named after economist Charles Goodhart, holds that “Any observed statistical regularity will tend to collapse once pressure is placed upon it for control purposes.” Or, more simply and pithily: measures become useless as measures once you start using them as targets.

Why is this? Because measures are diagnostic: things that help you understand a situation. They’re therefore only any use as long as they’re objective. And as soon as people start being graded according to that measure, it will be gamed. Think hospital waiting lists, or A&E waiting times, or paying teachers (or funding schools) by kids’ school grades. Or stack ranking in workplaces.

Which means I have mixed feelings about this story in the Times (£, sorry). It talks of six metrics by which police forces will be ranked. None of them, predictably, explicitly deals with fraud – the single largest crime problem the UK faces, yet the one with probably the least amount of focused resource and attention.

This brings back memories. In 2007-8 I spent a short amount of time working with people at what was then the (short-lived) National Fraud Strategic Authority. One thing that passed across the NFSA’s desk was a proposed set of police performance indicates. There were 147 of them, I recall – and not a single one dealt with fraud. Most were obviously chosen because they were things that were easy to count, rather than things that would genuinely make a difference in the effectiveness of policing.

So on the one hand, having just six – and high-level at that (homicide, serious violence, drug supply, neighbourhood violence, cybercrime and “victim satisfaction”) – is a step up. As is a Home Office source’s comment that “I wouldn’t classify them as targets.”

So not a Goodhart problem, then?

Hardly. Because the next sentence is: “It’s about tracking progress — we’re giving forces extra officers and now we want to see outcomes.”

So it’s directly a Goodhart problem. As has been the case before, forces will game their resource spend to make sure the Home Office is happy.

And fraud, as ever, will be forgotten. As will its millions of victims. Because, to be cynical, their problems cost too much to fix.

(Yes, yes. “Cybercrime” could be interpreted to include a lot of fraud. But it’s not the same thing. And how is “dealing with cybercrime” to be measured? I have no idea, and I’m pretty sure the Home Office doesn’t either.)


Someone is right on the internet: This is the third piece in a row in which I’ve mentioned the Horizon scandal. I won’t apologise. This is disgraceful, and it deserves a lot of noise.

So today I’ll simply point to someone who, if we had Pulitzers in this country, would deserve one for his coverage of this: Nick Wallis. This piece by him in Private Eye describes the scandal in great detail. Read every word. And then get very angry. And then decide how the issues that arise herein might arise elsewhere – and start thinking about who should be held to account for not making this a priority.

One quick sideline: I should have mentioned when writing about Horizon that the Post Office – shortly before Mr Justice Fraser tore Horizon to shreds – agreed to a £58m settlement of many postmasters’ claims. You can make your own mind up as to whether sociopathy on this level can be satisfied by that, or whether individuals should also be held to account.


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2021iv28, Wednesday: “A bloody computer system killed my brother.”

More on the Horizon scandal. And yes, it’s a scandal.

Someone is right on the internet: A very short hit. Because Dan Hon, an excellent writer on tech, has hit the nail on the head with an important backstory to the Post Office Horizon scandal in which dozens of honest sub-postmasters were prosecuted and convicted because the software running their accounting went horribly wrong – and no-one was willing to admit it.

His take is very much on how Horizon went so badly wrong, from a software and services project management perspective. That makes it sound boring. It really isn’t. It’s critical to understanding how organisations go so far off the rails that they do truly sociopathic things like what the sub-postmasters experienced.

Not least because as is almost always the case, it’s not actually a case of “computer says no”. Instead, it’s a story of human decision-making, and decision-ducking, and arse-covering. With utterly tragic and – quite possibly – criminal results.

Read the whole thing, but this ending is bang on the money. Under the heading “The Biggest Lesson”, Dan writes:

The sister of the former post office worker who committed suicide said: “a bloody faulty computer system killed my brother”. [The Evening Standard, April 12 2021]

My heart goes out to Jayne Caveen. And I hate to do this: a computer system did not kill her brother. Horrible people in management killed her brother, and it’s easiest to blame it on a computer system.

People, people in management, people in positions of trust people running one of the most trusted institutions in England made those decisions to double down and to persecute and prosecute people knowing that the evidence wasn’t reliable and concealing that evidence wasn’t reliable. Intentionally not investigating reports for fear of what might be found, because it might affect public perception of trust, or because it might be discoverable and admissable in court. Cowardice, fear and a lack of integrity is what happened. Pride and boastfulness in a system that could never do what it could. Using technology was and is an excuse. Not taking responsibility is what happened.

Technology is for people and made by people and this is what happens when the people running it don’t realize that.

Amen.


Short thought: Incidentally, the Court of Appeal judgment was unstinting in its criticism of the prosecution. And utterly unyielding in its position that the convictions were not only unsafe, but an affront to justice.

But it didn’t say, in terms that the victims – and victims they were – of this injustice were innocent. That wasn’t its job.

And that’s a problem.

Because ever since 2014, victims of miscarriages of justice – even those who may have had their lives destroyed, spent years in jail, and gone broke trying to defend themselves (see the Secret Barrister’s first book for details of this “innocence tax) – have faced an intimidating bar for getting compensation.

Intimidating? Make that well-nigh unclearable.

Look at it this way. People should only be convicted if a magistrate or jury is confident beyond reasonable doubt that they did what they’re accused of doing. “Beyond reasonable doubt” is now generally seen as not clear enough; judges now direct juries that they need to be “sure”.

This is rightly a high bar (or should be). A criminal conviction is a very big deal.

But under s133(1ZA) of the Criminal Justice Act, as amended by the then Conservative-led government in 2014, this is the test for miscarriage-of-justice compensation:

…there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales… if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence and references in the rest of this Part to a miscarriage of justice are to be construed accordingly).

In other words: you get banged up. You shouldn’t have. Your life is ruined.

But you have to prove your own innocence to the same standard as proof of guilt. Not “more likely than not” innocent. Not “all the evidence points towards someone else” innocent. No: “can’t possibly have been you, under any reasonable circumstances” innocent.

No-one pays to help you do this. No account taken of the fact you might have been seriously psychologically damaged by your ordeal. And if you don’t do all this and submit your application within two years of your conviction being quashed, then by s133(2) you’re out of luck anyway.

I very much doubt the sub-postmasters can reasonably surpass this hurdle. Even though they’ve obviously been subject to the most appallingly inhumane and unjust treatment.

I don’t often say this. But this provision is wholly unjust. It makes a mockery of the need to correct injustices. It needs to go. Although I can’t imagine this government – or any other government which relies on the hang-and-flog vote – doing anything about it.


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2021iv26, Monday: An affront to justice.

Firstly – sorry for being off-schedule. Exhaustion, I’m afraid. Back to work, with a few words about the wholly shameful tale of the Horizon prosecutions.

Preface: I apologise. Last week was insane, to the point where I fell asleep before 9 on Friday night and (unusually for me) slept for more than 8 hours without interruption. The combination of general exhaustion and a hearing on Thursday for which the papers arrived very late, together with a family need to drive into central London and back on Wednesday (which meant losing about 6 hours of the working day) means I’ve wholly failed to keep up the schedule.

With readers’ permission, I’m going to forgive myself the lapse, and simply try to get back on schedule.

With that in mind…


Short thought: There are probably more egregious examples of shameless people doing shameful things than the one highlighted in the acquittal on appeal of 39 sub-postmasters in the Horizon affair. But offhand, it’s very hard to think of any.

The tale is told, with clarity, in the Court of Appeal’s judgment. For those few who don’t know:

  • A Post Office accounting system, called Horizon, found significant errors and omissions in the accounting of a number of post offices.
  • The Post Office said, and continued to say, that Horizon’s numbers were unquestionably accurate, and that the only explanation was fraud by the sub-postmasters running the post offices in question.
  • It prosecuted dozens of them. For many, the Horizon data was the primary basis for the prosecution. Many were found guilty. Others pled guilty because they weren’t given access to underlying data and – in effect – had to prove their own innocence without the tools to do so.
  • But – as it later transpired – Horizon was fatally flawed. Its data was unreliable, as an earlier civil court case demonstrated in a superb judgment from Fraser J, one of a series of such exemplary pieces of jurisprudence.
  • And the Post Office knew it, but despite advice from a barrister who does credit to my profession (see paras 81-90 of the Court of Appeal judgment), refused to disclose it so as to avoid embarrassment.

A number of sub-postmasters appealed their convictions. And now, for all but three of them where there was other evidence, their convictions have been quashed.

I’m not sure “quashed” is a strong enough word. The judicial distaste, bordering on real anger, for the way the Post Office conducted the matter (as a private prosecutor) rings out throughout the 447 paragraphs of the Court of Appeal’s judgment.

Honestly, I can’t do justice to it. It’s a long read. But this is one of the great scandals of English criminal law: the conviction of dozens of people whom the Court of Appeal says were subject to prosecutions which amounted to “an affront to justice”.

These are not idle words. What the Court is saying is that in effect the system of criminal justice was abused by the Post Office, in its deliberate failure properly to investigate, and then to disclose matters which it had been clearly warned it had a legal duty to share with those it was prosecuting.

The depth of dissatisfaction is clear at paragraph 133:

POL’s [Post Office Ltd] failings of disclosure and investigation… ‘directly implicate the courts’. If the full picture had been disclosed, as it should have been, none of these prosecutions would have taken the course it did before the Crown Court. No judge would have been placed in the unhappy position of learning – as some judges (or retired judges) will do if they read this judgment – that they unwittingly sentenced a person who had been prevented by the prosecutor from having a fair trial.

To be clear: the Court of Appeal isn’t just feeling sorry for its sibling judges. Far from it. From the previous paragraph:

It is important here to state that many of these appellants went to prison; those that did not suffered other penalties imposed by the courts; all would have experienced the anxiety associated with what they went through; all suffered financial losses, in some cases resulting in bankruptcy; some suffered breakdowns in family relationships; some were unable to find or retain work as a result of their convictions – causing further financial and emotional burdens; some suffered breakdowns in health; all suffered the shame and humiliation of being reduced from a respected local figure to a convicted criminal; and three – all “Horizon cases” – have gone to their graves carrying that burden. Inevitably, the families of the SPMs have also suffered. In each of the “Horizon cases” it is now rightly conceded that those human costs and consequences were suffered after the denial by POL of a fair trial.

POL’s conduct was beyond shameful. It betrayed the trust of trusted, loyal employees. It condemned them to ignominy and poverty on false information, covering its own back along the way.

POL and those responsible for making the relevant decisions showed absolute contempt for the court. I can’t help wondering whether the court might, in turn, wish to take more formal notice of this. There’d be some justice in it, for sure.


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