18th June 2021
Techies have a phrase for it: ‘garbage in, garbage out’.
Or GIGO, for short.
What this means, of course, is that the quality of the outputs of any given process are determined by the quality of the inputs.
This basic, rather obvious point is often missed by those who demand ‘inquiries’ into all sorts of apparent state failures.
The emphasis is often placed on it being ‘judge-led’ or whatnot – that is, the form that the inquiry should take.
But this is to prioritise form over substance.
And this is because any inquiry – and indeed any formal decision-making process such as a trial – is only as good as the information to which it has access.
If you control the flow of information to an inquiry (or trial) you then have significant control over the outcome.
In particular, if you control what information the inquiry does not get – even though that information is relevant and available – then you, in effect, neuter the inquiry.
This is why any duty of disclosure is a crucial element in respect of any inquiry.
If the police (in the examples of the Hillsborough inquiry and the Daniel Morgan independent panel) or the post office (in respect of the horizon scandal) deny documents exist, or refuse to give access to information, or simply refuse to disclose incriminating or embarrassing evidence, then the inquiry will be undermined.
And this is regardless of the qualities of the judges or other heads of the inquiry, or the scope and eloquence of the terms of reference, or the public interest in the matter.
GIGO.
And any entity that faces criticism or embarrassment – or even criminal liability – will not willingly disclose evidence which can be used against it.
Nor will the individuals that comprise those entities.
They will hire specialist lawyers, skilled and experienced in ‘managing’ disclosure – who will ensure the interests of their clients are protected without any law being actually broken.
All of this should not be any surprise.
And so why the obligations of disclosure are perhaps the most important thing to get right if you want any inquiry to be of any use.
Not who is the judge or on the panel, or what the terms of reference are, and so on.
Let the inquiry get the evidence that matters.
Otherwise: GIGO.
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Controlling information flow – without stopping it entirely – is a good weapon too.
Deny the right of anyone to record / take notes of a particular public meeting and then consistently put out the minutes of the last public meeting only days before the next one is due … and watch how difficult it is for your critics to hold you to account!
This approach also pays dividends when accurate minutes aren’t in your best interests. Who can quarrel with the public record when they’ve only their own memories of what was said to back up their view the minutes aren’t accurate?
Surely the first order of business for any meeting should be to agree the minutes of the last meeting.
If there is any issue with those minutes, then those issues should be addressed before they are agreed.
But if:-
– the minutes of the last meeting AREN’T put into the public domain until they appear in the meeting papers for the next meeting (shortly before that meeting takes place); and
– the public (who are the most likely of all attendees to challenge the incorrect minutes) are only allowed to ask questions relating to the current meeting’s agenda
… then it’s almost impossible to correct manipulatively drafted minutes.
The only recourse is to email the author of the minutes and ask for them to be corrected before the next meeting. Such emails are normally not replied to – nor are reminder ones – and the minutes remain uncorrected.
Attendees of the meeting can make a fuss, and insist that their dissent is put on the record.
The press might like report on a fuss such as that.
Also, if the minutes are falsified, that is quite likely to be a criminal offence of some sort.
Of course, if nothing comes in then at most hot air can come out
If you are the Government or other public authority, once you have got the control of information sorted out the next step is control the investigator’s budget, gently so as to minimise any fuss. This will slow down the work in the hope that by the time any report is produced most people will have forgotten what went on or will be bored by the matter. Luckily Daniel Morgan had family who ensured this did not happen: his soul goes marching on.
As did the Hillsborough families!
The obligations of disclosure are only as binding as the sanctions for breach of those obligations.
Creating sanctions that work against the Met or govt. bodies is key. Making sanctions effective is tricky when the body has no intention of being held to account.
Misconduct in public office is an offence at common law.
https://www.cps.gov.uk/legal-guidance/misconduct-public-office#_Toc519523916
What is a public inquiry other than a court examining the facts of the case?
How does this differ from a court looking at the facts of a case in a civil claim or a criminal prosecution?
Do the issues that people are calling for public inquiries about not have victims with arguable legal claims against the government, or officers of it?
If they were to come together to make a claim, how would that be different from a public enquiry, other than that the primary input would be decided first by the victims…
Just suppose the law made an absolute requirement to tell the entire truth up front. Why, there would be no point in hiring defence lawyers – just fess up and stop wasting time. Except to demolish the prosecution case. That would spoil the entire game, hardly any money in it – provided that the law really could find out a lie or an obfuscation or not-quite-the-truth. How many (non mad) defendants genuinely believe they are completely innocent? There is no advantage to society to allowing lying – so make it impossibly and personally expensive to try.
Equally prosecutors may be mistaken, badly informed or malign. We used to punish them through heavy costs awards – not entirely satisfactory when a sophisticated defendant can hide the facts, but a useful deterrent.
It seems to me that the powerful and the daring might very well seek to hide the ‘truth’ and worse still ‘the law’ might seek not to look too hard at the doings of the powerful. Worse still if ‘the law’ allows those whom one might reasonably believe to be lying or obfuscating to walk scot free. The game is worth the candle – defence lawyers are back in business.
So be tougher and more cynical (or less cynical for those who believe the system is rigged). Require without argument or question the immediate delivery of the whole truth. The words ‘nothing but the truth’ have a slight tinge of qualification to them, a bit of wiggle room – cut out wiggle room.
Perhaps the assurance of 20 years in solitary for holding back information might discourage bad behaviour. Make the accused more frightened of the prosecutor than of the Home Secretary or his/her mates. Let us hear the sentencing go thus ‘6 months suspended for falsifying documents, 10 years immediately for lying about it, and 20 years for your boss’.
In the motorcycling world, we use the phrase “shit in, shit out”. If you enter a bend too fast…
Thank you for your blog. It is a rudder of stability in a world drifting into chaos.
Good article! Here in the Philippines they’re always abusing the control of information because they don’t want to be exposed of the corruption they’re doing. And whoever discloses any evidences of corruption they would immediately assassinated.