Category: Courts and the administration of justice

Understanding the government’s judicial review of the Covid Inquiry

2nd June 2023

The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.

In the words of the Covid Inquiry spokesperson yesterday:

“At 16:00 today the Chair of the UK Covid-19 Public Inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the Chair’s Ruling of 22 May 2023.”

 

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This is an unusual judicial review.

Usually judicial reviews are brought against the government, and not by the government.

This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.

Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.

Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:

 

But that said, this judicial review is still unusual.

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What is this judicial review about?

From a legal perspective, it is about one word: jurisdiction.

To understand this we need to dig into some of the legal background.

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First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.

What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.

An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.

An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.

And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.

Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.

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Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.

This Notice is the main target of this judicial review.

This Notice is what the government is primarily asking the High Court to quash.

This judicial review is not the first attempt of the government to dislodge the Notice.

The first attempt was an Application dated 15 May 2023.

This Application was made under a provision of the Inquiries Act which provides:

“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”

But.

This Application was problematic.

You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.

No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.

As the Application stated:

“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”

And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):

“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.

“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.

“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”

“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“

The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.

The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.

A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.

Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.

And the Application did get the Inquiry to set out its legal position explicitly.

But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.

Now it is.

And here is the government’s statement of facts and grounds.

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What are the merits of the judicial review – that is, will the government win?

To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.

This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.

But.

There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.

Here we need to go back to the Inquiry being a creature of statute.

This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.

The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.

The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.

If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.

If the government can show this, then the Covid Inquiry loses – and the Notice falls away.

But.

The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.

In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.

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Finally, let us consider the greased piglet.

The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.

He appears to want to single-handedly sabotage the government’s legal case:

On this, let us be careful.

There is industrial-scale misdirection afoot.

Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.

And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged  “relevant” – and also note who he is proposing to conduct this all-important search.

We should not get too excited at such claims.

But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.

This is such an unusual judicial review – and in more than one way.

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Disclosure: I am a former central government lawyer.

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The commercialisation of private prosecutions

19th May 2023

In the Financial Times magazine this weekend – and on their website (though behind a paywall) – is a fascinating and detailed article on the commercialisation of private prosecutions – especially in respect of shoplifting and online counterfeiting.

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By way of background: usually one way of explaining the difference between criminal law and civil law is that in the former a person is prosecuted by the state, while in the latter a person is sued by another person.

But with private prosecutions, a person can bring criminal prosecutions against another person.

It is an example of the private enforcement of public power.

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Of course, the hope (if not expectation) is that any abuse of these prosecutions would be dealt with by an impartial and independent court looking out for the public interest.

But such prosecutions are outside of the processes the police have of dealing with incidents, and also outside of the processes of the Crown Prosecution Service have in determining whether a prosecution should be brought.

Yes, it is possible for the Crown Prosecution Service to step in and terminate a private prosecution, but that is exceptional.

So what we have are defendants – whose cases would have been dealt with differently had the police or the Crown Prosecution Service – facing harsher sanctions at the criminal courts.

And this is done as a business, as the Financial Times spells out, for those bringing these prosecutions only get paid if they can apply for public funds at the end of a successful prosecution.

It seems the various shops and businesses which are affected by the criminality in question do not contribute to the costs of the prosecution.

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The article points to both a justice gap and to a failure to properly fill that gap.

Many of the shops and businesses nod-along with the private prosecutions because they have no confidence in the police and the Crown Prosecution Service, who in turn are not properly resourced.

And as several of those caught up in the private prosecutions have drugs problems, it can even be contended that some of the prosecutions make no real overall difference to the crime levels, just diverting crime elsewhere from the protected shops and businesses.

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The Financial Times piece is an interesting sideways snapshot of the criminal justice system.

And if you cannot afford to buy the Financial Times tomorrow, and so decide to read it inside the newsagents instead, please do remember not to walk out without paying for the newspaper.

The article will tell you why.

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Somebody should copyright “flawed music copyright cases” so as to avoid future abuses

4th May 2023

Another flawed musical copyright case.

The news from the Manhattan court is that Ed Sheeran has won the latest case.

These cases are not about piracy and bootleg copies being made for sale.

These case are also not even about samples being lifted.

They are about mere chord progressions.

As Sheeran’s lawyer avers: “the letters of the alphabet of music”.

These are the cases that bring discredit on media and copyright law – and also perhaps show a misunderstanding of how music is composed and how music develops.

We should just wish that the very notion of bringing such flawed cases could themselves be subjected to the law of intellectual property.

And then potential plaintiffs could just be sent a “cease and desist” letter – and so be stopped immediately in their, ahem, tracks.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Hurrah for this latest move towards transparency of the UK Supreme Court

27th April 2023

The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.

This means that, by defintion, the appeals are of wider interest than to the parties themselves.

It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.

As such, all cases before the Supreme Court should be as transparent as possible.

But.

There is nominal transparency, and there is real transparency.

Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.

You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.

Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.

Only then do you have real transparency.

And so the latest news, as reported by Legal Futures, is welcome.

The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.

This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.

A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.

There are few better ways than to grasp the nature of practical law and to understand how cases work.

There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.

There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.

But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.

And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.

Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.

Of course: pretty soon many people would get bored by the novelty of such access.

But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.

And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.

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How Prince Harry’s legal case shows how the phone hacking story has returned to the start of a circle

26th April 2023

The news about the royals and hacking, well summarised and analysed by Joshua Rozenberg at his Substack, brings us back to the start of a circle.

For the phone hacking story only came about because of the royals.

The story came about because the Fleet Street press of the time – with their well-connected links with the Metropolitan police and the private investigation mini-industry, and unchecked by fearful politicians – sought access to information from the voicemails of the royal household.

Because the royal household became involved, the matter was passed to different police officers at the Metropolitan Police, who then raided and took compelling evidence from private investigators.

And in Scotland Yard that evidence was stored, and it became relevant to civil claims some years later, and then suddenly the scope and extent of tabloid phone hacking became apparent.

But without the royal household connection, the crucial evidence would not ever have been seized and stored, and without that evidence being available for later litigation, the hacking story may never have emerged.

What happened shows the practical importance of the monarchy to our politics, regardless of constitutional theory and conventional wisdom.

It seems only the monarchy has any autonomous power when the police and the media and the politicians collude.

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Such crude phone hacking now seems from another age – technologically, culturally, politically, legally.

After the current crop of cases it may well be that the phone hacking litigation comes to an end.

Prince Harry’s various cases will then perhaps be the other bookend to that provided by the original hacking of the royal household telephones.

But as the parties attend hearings at the Royal Courts of Justice in the Strand, the sophisticated surveillance and data retention by the state and technology companies continues at an unimaginable scale, again unchecked by either politicians or the media.

The phone hacking of a media generation ago seems like a garden shed affair compared with a huge urban conurbation of the exercise of “investigatory powers”.

Any abuses and misuses (or even uses) of the current technology will, in turn, probably never come to light so as to horrify.

Unless, of course, the abuses and misuses (and uses) affect the royal household.

And only then, maybe, will we ever get to hear about it.

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A look at why Fox and Dominion settled

19th April 2023

Almost all civil litigation ends before a trial takes place.

Civil litigation – where one party sues another person in respect of a legal wrong – is distinct from criminal litigation and much public law litigation where it is expected that some court hearing takes place.

In civil litigation, weak cases tend to be withdrawn at an early stage, while stronger cases tend to get settled.

Indeed, civil litigation is often a structured form of deal-making, providing a hard procedural framework for negotiations and compromise.

This is because of two things.

First, it is usually plain at an early stage if the claimant actually has any sound claim at law, or a defendant a sound defence.

Second, before any trial, it is also then usually plain how strong the evidence is – witness evidence, expert evidence, documentary evidence, exhibits – for both parties.

Of course, dramatic things can happen at a trial – some stunning exercise in cross-examination, or some unfortunate admission – that can make a difference to a case.

But usually, any competent litigator (or, in the United States, trial lawyer) will be able to advise weeks before any trial on the likelihood of success or failure.

Pre-trial stage is where the most significant litigation work takes place – not in the theatrical, rhetorical flourishes of counsel in the courtroom.

But in the methodical grunt-work of getting a case prepared for trial.

For the litigation paradox is this: you are more likely to get a satisfactory result before trial by preparing to go for trial.

And you are less likely to get a satisfactory result before trial if it is obvious you are not willing or able to go for trial.

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There are exceptions to the general rule that almost all civil litigation ends before a trial takes place.

Sometimes there is an area of law that is genuinely unclear, and so neither party can be sure which way a court will go, and so a judgment is needed.

Sometimes there is a need for a property or other legal right to be judicially and publicly determined.

Sometimes you have a party who simply wants their day in court, regardless of legal advice to settle.

And sometimes, a party may have got itself into such an awful legal costs tangle that it has to, in effect, bet on the outcome of a trial as the least bad outcome.

But these (and some other) exceptions aside: almost all civil litigation ends before a trial takes place.

The only questions are when and how the litigation ends.

And this may surprise some outsiders, for whom litigation is about what happens in a courtroom.

But like battles and wars which are won and lost before any confrontation takes place, so is most civil litigation.

This is, in a way, the art of law.

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None of the above will be news to long-term readers of this blog.

But the latest application of the truth that almost all civil litigation ends before a trial takes place is the settlement in the United States of the Dominion lawsuit against Fox.

The settlement was in the days before a trial was scheduled to take place.

On the face of it, this is not a case that should have got as far as it did.

In particular, it would appear that the evidence was strongly on the side of Dominion – especially the disclosures about those at Fox knowingly broadcasting untruths.

But.

The lateness of the settlement indicates two things.

First, either party – or both parties – were playing hard.

And this would not be a surprise given the amounts – and reputations – at stake.

Dominion, in particular, conveyed an impression that it wanted public vindication – and so would be committed to go to court if there was not a public apology.

As it happens, there seems not to have been a public apology – but Dominion’s demand for one no doubt led to Fox having to settle for a higher amount than it would have done otherwise.

Both sides knew that a public admission of wrongdoing was Fox’s weak point – in a way that, in the United Kingdom, News International has been careful not to admit whether certain newspapers were involved in phone hacking.

On the other hand, Dominion had its own weak point.

And this was possibly the second reason for the lateness of the settlement.

To win at court, Dominion had to go beyond showing that Fox were aware that it was broadcasting untruths.

Dominion had to show “malice” – which in the United States, as in England, is a high and difficult threshold to meet.

Malice is a state of mind, like dishonesty in a fraud case.

And short of an admission, malice has to be somehow shown by inference from the available evidence.

That is often not easy regardless of an abundance of evidence of wrongdoing – and thereby there is an element of uncertainty for both sides: will they, won’t they, etc.

And both sides knew about this uncertainty too.

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Fox and Dominion were in a litigation struggle.

Fox wanted to avoid any public acknowledgment of wrongdoing, but the courtroom clock was ticking louder and louder, and in turn Dominion realised their case was not an easy win because of the requirement to show malice.

But Dominion seemed to have convinced Fox that it was committed to getting public vindication.

And so Fox settled, for an extraordinarily high amount.

As such it has deprived some from the spectacle of a courtroom drama and possible public humiliation for individuals connected with Fox.

But for connoisseurs of civil litigation – who know trials are unlikely – the pre-trial litigation struggle was spectacle enough.

And it was well-played by Dominion.

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Easter

Maundy Thursday 2023

The story of the trial of Jesus of Nazareth has always fascinated me.

I happen to be a non-militant atheist but that hardly matters, for the gospels’ narrative(s) of the arrest, trial and punishment of Jesus of Nazareth is(/are) set out in largely secular terms.

Nothing – or almost nothing – depends on any miracle or divine intervention.

(This contrasts with the narrative(s) before Palm Sunday and after the crucifixion.)

It is essentially a human story – about what humans did to to someone who they saw as human.

Of course, it is difficult to make sense of some of the narrative(s) – not least about how someone accused of those crimes ended up being executed by the imperial power by means of crucifixion.

One day, perhaps, I will set out more thoughts about this trial process – and in a way which is satisfactory (I hope) to those (of you) who have faith as well as to those (of us) who do not.

But in the meantime, I mention this to show that even where there are fundamental differences there can be common ground.

And it is always good to find it if you can.

Happy Easter, or Passover, or holidays, to all my followers – and I will return to the blog on Tuesday.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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