How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice

The Post Office Horizon scandal is both simple and complex, straightforward but also difficult to grasp in all its interconnected detail.

The essence of the scandal is, of course, how groups of identifiable individuals within the Post Office – executives, lawyers and investigators – inflicted criminal legal liability and other horrors on unfortunate sub-postmasters and sub-postmistresses between 2000 and 2014, even though those executives, lawyers and investigators knew (or should have known) that the computer system on which they relied was flawed.

And when it became increasingly plain that there had been mass miscarriages of justice, groups of identifiable individuals within the Post Office and their external legal advisers sought to evade accountability and to cover-up what had happened, even employing extraordinarily aggressive litigation tactics.

But a saddening thing is that if it were not those particular identifiable individuals who were culpable (and they certainly should be held to account) then it would have been other individuals doing the same things. And this is because of legal and corporate contexts that facilitated this wrongdoing.

This is not to say that the guilty people can themselves blame the system – the culpable individuals could and should have done different things, at each and every step. Indeed, exceptional individuals could have stopped the nonsense and the cruelty.

But these were not exceptional individuals – they were individuals doing what they (wrongly) believed to be their job or performing what they (wrongly) believed to be their function or protecting what they (wrongly) saw to be legitimate interests.

As such it is not enough to identify and vilify villains, it also important to identify system failures that enabled such people to ruin the lives of so many innocent people.

Like the proverbial poor, the likes of Paula Vennells are always with us and will always somehow obtain senior positions. The question is what circumstances enabled this person and others to cause the consequences that they did.

This post set out the faults of the legal system.

Indeed, like Marley being dead in A Christmas Carol, an understanding that the legal system being at fault is the basis of the story of the Post Office scandal.

Without the legal system being constituted as it was, then the Post Office could never have done what it did.

The first legal fault is a rule of evidence: computer records must be presumed to be accurate unless shown to be otherwise.

Note that this is a presumption, not an absolute rule.

(And technically speaking the rule goes to admissibility of records as evidence, rather than the weight to be placed on them, but the practical effect is that once admitted the evidence is accepted for what it says.)

If computer records can be shown to be inaccurate, the presumption is rebutted.

The origin of this rule is from before the computer age: the days of mechanical instruments such as watches and then, more recently, speed cameras and breathalysers. The courts would presume such instruments were accurate and would allow prosecutions to rely on the evidence of such devices.

Such a rule of evidence makes sort-of-sense with such elementary contraptions, but it was (and is) woefully unrealistic with computer-generated data.

Indeed, software systems of any complexity are unlikely to be bug-free: the best one can hope for is that the bugs are not disruptive in any non-trivial way.

From 1984 to 1999 this rule of evidence had the presumption pointing the other way: it was for the prosecution to show the soundness of the computer evidence, and not the defendant. But this was repealed following a clumsy and ill-considered Law Commission proposal. The pre-1984 legal regime was reinstated.

If it were for the prosecution to show that the evidence was sound – with, say, certification on pain of perjury and full disclosure of error logs, and so on – then it is unlikely that many of the Post Office prosecutions could have taken place. It is certainly the presumption on which the Post Office relied upon in many prosecutions and in respect of which the Post Office resisted adverse disclosure.

In this way a mere rule of evidence created the conditions for horrendous miscarriages of justice.

There is no good reason for this presumption to remain. Prosecutions should only be able to rely on computer-generated records if (at least) on pain of perjury a director or similar figure certifies that there has been full disclosure of all relevant material to the defendant for the evidence to be properly tested.

No longer should any defendant be in the position of “computer says guilty”.

Now we come to the next legal problem: disclosure.

Disclosure is a lawyer’s word for the process of one party providing another party with access to material evidence.

In general terms, it is the step in a legal case – either criminal or civil – when a case is won or lost. It is easy to assert a case based only evidence in one’s possession or control; it is only when the evidence is seen in the round that the merits of the parties’ respective positions can be keenly seen.

In civil cases, parties disclose their evidence to each other; but in criminal cases it is usually the prosecution that has the disclosure obligation. And the prosecution – rightly – has the obligation to disclose all evidence – even (especially!) the evidence that assists the defendant.

Prosecution disclosure of all material evidence to a defendant is thereby fundamental to the notion of a fair trial.

This is particularly so when a defendant has a presumption against them, such as those facing computer evidence.

For the only real chance a defendant has to rebut the accuracy of computer evidence – especially that evidence relied upon by a large organisation – is to have access to internal information held by that organisation. Unless internal information is disclosed the defendant is a lamb to the slaughter.

In the Horizon cases, the Post Office refused and resisted disclosure of the internal error logs that would have shown the system was unreliable.

It is not yet clear whether this was a deliberate and dishonest failing, or whether those with disclosure obligations simply did not know of information held elsewhere in the Post Office. Perhaps it was a mixture of both.

What is clear is that in at least some cases, the Post Office adopted tactics that meant that the Horizon system would not be called into doubt for other cases.

Whatever the true reason for this non-disclosure, its effect was stark. Defendants who would have had a defence had no defence; charges were brought which otherwise would not have been brought; lives were ruined needlessly.

The public efficacy of any criminal prosecution is only as good as the performance of key obligations by the prosecution, else (to use a techie term) it is garbage in, garbage out (or GIGO).

By not disclosing evidence as to the unreliability of the Horizon system, while benefitting from the presumption in favour of the soundness of the system, this meant that the Post Office had it both ways. Attempts by defendants to obtain disclosure were opposed by the Post Office and rejected by the courts.

The Post Office did what it did, because it could get away with it.

And here we come to another glaring hole in the legal system: the use by the Post Office of private prosecutions.

The Post Office actually does not have any special standing to bring prosecutions; it has the same right to bring a private prosecution as any other person.

But the Post Office was prosecution-happy, with investigators boasting of holding interviews under the Police and Criminal Evidence Act.

Instead of prosecutions being a rare and extraordinary events, there were dozens, sometimes hundreds, a year after 2000, until they came to an abrupt halt in 2014.

The sub-postmasters and sub-postmistresses running post offices in their shops suddenly became a major criminal demographic.

When this happened perhaps senior managers at the Post Office would have thought that this grand explosion in larceny indicated that the evidence base may be faulty. But no.

Prosecute, prosecute, prosecute!

And because these were private prosecutions, there was no direct involvement by the Crown Prosecution Service and thereby no independent appraisal of the prosecution decision. Did the evidence available make out the offence? Was there a realistic prospect of a conviction on the evidence and the applicable law? Was a prosecution in the public interest? On these key questions, the Post Office prosecutors made their own, unchecked decisions, secure in the knowledge that the court would presume that computer records would be accepted as good evidence and that there would not be any disclosure otherwise.

In some cases – disgustingly – the Post Office ‘over’ charged with an offence of theft, even though there was insufficient evidence to show that the defendants were thieves, so that the (frankly) terrified defendants would plead guilty to the lesser offence of false accounting, which would normally avoid both a custodial sentence and the added stigma of a conviction for theft.

The Post Office simply got carried away with its role as an investigator and (private) prosecutor, and the convictions were easy because of the rule of evidence and the lack of disclosure.

Perhaps someone should have seen the convictions piling up and wondered what really was going on. But nobody cared. The computer said guilty, and the defendants had to be prosecuted, because they could be.

Because of the magnificent stand made by Alan Bates and his fellow victims of miscarriages of justice (and because of the outstanding blogging of Nick Wallis), there was a possibility that the legal tide could turn – that the legal system that had treated the defendants so badly could maybe give them belated justice.

But the legal system did not make it easy for the victims; the legal system made it hard.

Bates and others launched civil claims against the Post Office – civil claims which the Post Office did everything to oppose.

These civil claims were likely to have got nowhere, had it not been for two strokes of legal luck – neither of which were inevitable.

The first stroke of luck was that the claimants were able to get the court to agree to a ‘group litigation order’ – in effect, a class action. These orders are rare and far harder to obtain than they should be.

And these orders are not ideal. To bring such a class action – even in a straightforward case – means a great deal of lawyery work and often needs funders who will put the money up for this work in return for the possibility of a return if the case is successful.

But when faced with the extreme legal tactics of the Post Office, however, this meant extensive work which would need to be funded.

A group litigation order made it possible for Bates and others to meaningfully take on the Post Office – but it also meant that any returns would be subjected to the need to pay funders and lawyers.

It was not an ideal litigation device – but it was the only one that would mean the claimants could take on the might of the Post Office.

Yet even a group litigation order did not mean success – and, given the Post Office’s aggressive litigation manner, the civil claims may have ended in defeat.

And then there was the second, game-changing stroke of luck.

The case was allocated to a High Court judge called Sir Peter Fraser.

This is not a sweary blog, and so forgive the following characterisation.

Mr Justice Fraser was not going to take any of the Post Office’s shit.

In a sequence of judgments, Fraser skilfully and painstakingly dismantled the Post Office’s legal and technical case.

(It is difficult to imagine many, if any, other High Court judges with the technical understanding and confidence to do this – and it is scarily easy to imagine many High Court judges instead nodding-along with Post Office counsel.)

In two judgments in particular – “common issues” and “Horizon issues”, both of which are forensic masterpieces – Fraser showed that the Horizon system was flawed and that the Post Office knew that the Horizon system was flawed.

During these hearings the Post Office took fright.

They instructed perhaps the most expensive barrister in the land to ambush the litigation mid-hearing with a sudden application to have Fraser recused for “bias”. They also sought (and presumably paid for) advice from a former President of the Supreme Court on how the cases before Fraser could be derailed.

There has never been a civil litigation ploy quite like it: it was as odd as it was desperate. It was, at best, a nuclear option. At worst, it was improper.

And it failed.

The Court of Appeal put the Post Office and its eminent legal counsel back in their post box.

Fraser could carry on.

And he did.

His judgment on the “Horizon issues” is lengthy, but it should be read by anyone interested in the law and/or the technical side of the case.

The Post Office now had nowhere to hide.

Following on from the Fraser judgments, the Post Office position effectively collapsed.

The Court of Appeal began to overturn the convictions of those wrongly convicted – though because of an under-resourced and overly legalistic Criminal Convictions Review Commission, cases were only referred if the commission was certain they would succeed, rather than letting the Court of Appeal do its job.

The Post Office begrudgingly agreed to a settlement which, because of the nature of a group litigation order, meant considerable amounts went to the lawyers and funders of the claims, rather than to the claimants.

You would have thought that was it, but no.

The innocent victims continued to campaign, slowly getting more and more press interest.

(And the then-head of the Post Office, who oversaw many of the wrongs, was at this point awarded a CBE and appointed by the current government to the Cabinet Office.)

The government set up an inquiry under a retired senior judge, so as to get to the bottom of the affair. Few noticed or cared.

And pretty soon the Post Office was back to its old non-disclosure and other evasive tricks. Just as the Post Office failed in its disclosure obligations in the original criminal cases, it began routinely to fail in its disclosure obligations to the new inquiry.

GIGO.

And this is where the position was until a few weeks ago: claimants under-compensated; the wrongly convicted waiting endlessly for acquittals; the Post Office playing its usual non-disclosure games.

Then, this happened:

It is remarkable what difference a television programme can make.

Suddenly politicians urgently told each other (and voters) that something must be done, despite there being no new material facts since the Fraser judgments.

Perhaps the wrongs can be righted – at least for those victims who are still with us.

Perhaps the culpable individuals at the Post Office can be vilified.

But in all this noise, there is another issue.

What can be done about a legal system that makes it very easy for entities such as the Post Office to destroy lives but also makes it very difficult for those injustices to be corrected?

There were many individual failures – but there were systems failures too.

And until and unless those systems failures are addressed then further injustices will occur again, only with different culpable individuals.

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This is a re-written and extended version of an article at Prospect magazine.

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“Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly

This is first in a series of posts on the Post Office Horizon prosecutions scandal

The Post Office prosecutions scandal is the United Kingdom’s greatest mass miscarriage of justice of our times.

The scandal, however, is also difficult to write about.

Partly this is because many of the personal and systemic failures in the scandal are so maddening that any attempt at objective explanation and detached commentary can quickly become a rant.

And it is partly because the matter is so complex that very few will have mastery of all the legal and other documents and evidence. For example, the key 2019 judgment of Mr Justice Fraser – a judgment which also happens to be one of the greatest forensic exercises undertaken by any modern judge – is over a thousand paragraphs long, even without its appendices.

Nonetheless, there have been some outstanding accounts and analyses of this sorry situation. In particular, the journalist Nick Wallis has produced a book which should be read widely on the mess. There is also now a statutory inquiry which is seeking to get to the bottom of what happened, and why it happened, and how it should not happen again.

The focus of many of the accounts and much of the commentary has, rightly, been on the numerous personal and systemic failures – especially those of the Post Office management and their lawyers, and those of the software provider Fujitsu.

Those personal and systemic failures are central to what happened: none of the miscarriages of justice would have occurred without decisions by individuals (and groups of individuals) which could and should have been made differently.

And some of those decisions are such that the individuals involved should themselves be prosecuted.

But this post – and the posts which will follow this, as part of a series – is on another failure which was part of the mix.

This is the failure of the law itself and of the procedures of the courts.

And if anything, this failure of the law itself and of the procedures of the courts makes the individual decision-makers more culpable – for they knew (or should have known) how harsh the applicable law and procedure would be on the defendants, but the defendants would be prosecuted anyway.

Nothing in an account and explanation of the applicable law and procedure should be taken to limit the culpability of the Post Office management and their lawyers, and of those at the software provider Fujitsu.

In this first post let us start with what lawyers called a “presumption”.

The classic statement of this presumption is as follows:

“In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time”.

Here “mechanical instruments” include computers.

So, in other words, computers are presumed to be operating correctly, unless there is evidence to the contrary.

As a “presumption” this does not mean that the court will take this view each and every time, regardless of circumstance.

It is instead a starting-point which can be rebutted.

It is what the court will take to be the state of affairs, unless it is satisfied by evidence that it is not the state of affairs.

There is nothing inherently wrong about a court using presumptions: indeed, without presumptions, the courts could not properly operate.

Presumptions keep almost all legal cases manageable. For example, a contract will be presumed not to be a fraudulent instrument, unless it is shown to be a fake; or a defendant may be presumed not to be insane, unless shown to be insane; and so on.

Presumptions tell us what will be taken to be the state of affairs – and which party has the onus of showing whether that state of affairs is not correct.

The problems with any presumption are in what it presumes, and in what is needed to rebut it.

If the presumption is unrealistic in and of itself, or if rebuttal is unrealistic, then the presumption converts from being something that assists the course of justice to something that causes miscarriages of justice.

The presumption that computers are presumed to be operating correctly, unless there is evidence to the contrary is what lawyers call “a presumption of evidence”.

This means that a court can be satisfied that a relevant fact can be established just by computer records, unless there is evidence that the computer is not working properly.

And so when the computer record shows, for instance, a financial shortfall by postmaster or postmistress, the court will accept that as evidence of an actual shortfall – unless the defendant can show that the computer was not operating correctly.

In short, when the computer record is the essence of a prosecution case: computer says guilty.

This evidential presumption has not always been part of English law.

In 1984 a law was passed which pointed this presumption in the opposite direction.

Section 69 of the Police and Criminal Evidence Act 1984 provided:

This provision pointed the presumption in the other direction: it was for the prosecution to show that the computer was operating correctly, and not for the defendant to show that computer was not operating correctly.

This section 69 replaced the old common law position where, as stated above, in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.

Had section 69 still been part of the law when the Post Office brought its prosecutions of post-masters and post-mistresses then the course of those cases may well have been different.

Section 69, however, was repealed in 1999:

The effect of this repeal was that the old common law presumption returned, meaning that is was again for the defendant to show that a computer was not operating correctly, rather than for the prosecutor to show that the computer was operating correctly.

How this repeal came about, and whether the reasons for that repeal were sound, will be the subject of the next post in this series.

Sources

Considerable assistance for this series of posts has come from the following articles:

The Law Commission presumption concerning the dependability of computer evidence (2020)

Recommendations for the probity of computer evidence (2021)

The legal rule that computers are presumed to be operating correctly – unforeseen and unjust consequences (2022)

Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences

(Source)

The court system is inherently about performance: about justice being seen to be done.

And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do.

So taking these two things together, performative justice and coercion, both of which are deeply fixed in our culture, it is difficult for many to understand why a convicted defendant cannot simply be coerced to attend a courtroom to hear the sentencing remarks of the judge.

The many have a point: it does seem an odd gap in the practice of criminal law, a lacuna in the world of courts and coercive force.

But.

There are genuine practical problems about having this particular form of coercion.

What happens if the defendant refuses to perform their allotted role and disrupts the court? Ordering back to their cells rather defeats the point of obliging them to be present.

And how do you meaningfully punish someone for non-compliance when they already face a life sentence?

There are also important points about placing at risk those court workers who would be expected to enforce the requirement against an unwilling defendant.

Like many things in criminal justice, and in the law generally, there are not easy answers to what seem easy questions: no deft solution to those who clamour that something must be done.

There is, however, perhaps another way of thinking about this.

And this is to focus on the sentence of the court being the actual punishment.

That sentence may include incarceration and other things.

But the sentence is the thing.

It is the sentence which provides (or is supposed to provide) the output of justice – the sanction which the court holds to be the proportionate and, well, just response to the offence that has been found to have been committed.

Anything in addition to the sentence, even things which seem must be done, is separate from the sentence.

We should be wary about adding performative elements in addition to the sentence handed down by the court – especially elements intended to show further retribution.

Of course, part of a criminal sentence often serves the purpose of retribution.

But even in the most extreme cases, the purpose of retribution has to be balanced by other elements by a court.

The further we go from the sentence being the punishment, because of a clamour for there to be even more dramatic performative elements, the less the sentence itself can be regarded as the product of the justice system.

Perhaps attendance orders for certain convicted defendants can be built into the court process, or even be made part formally of the sentence.

After all, as said above, there is already plenty of performative and coercive elements in criminal justice system. One more will not make that much difference.

But until such orders are properly integrated into the process, the concern should be that such elements are not made substitutes and supplements for the actual sentence.

The sentence is the thing, and it should always be the thing.

And even when the scales of justice are lopsided with the weight of the most awful of crimes, they nonetheless remain scales.

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A note of caution for those clapping and cheering at the latest indictment of Donald Trump

8th August 2023

(Picture credit.)

The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.

No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.

But.

Taking this seriously also should also mean that those looking on should not give way to elation and celebration.

And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.

It is too early to be clapping and cheering.

Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.

Imagine that the case against Trump could not be framed better and could not be put before the court better.

Imagine a dream prosecution, one where everything goes right.

Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.

This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.

And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.

There is a non-trivial possibility that Trump may be found not guilty.

What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.

It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.

The consequences of such a vindication will be profound and lasting.

Of course, this possibility does not mean that the prosecution should not go ahead.

Nothing in this post should be taken to mean that the prosecution should be aborted.

The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.

The point of this post is to counter the jubilation at the indictment.

This is high-stakes litigation, in a case which may (as they say) make law.

Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.

But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.

A great deal rides on this case, and the outcome is not certain.

Brace, brace.

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“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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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.

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.

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.

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.

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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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.

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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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.

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.

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.

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.

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 Donald Trump and the Art of the Process

31st March 2023

Another “-ment’.

Following his two impeach-ments, former President Donald Trump now has an indict-ment.

(There is a pleasing parallel to this, as impeachment was the quasi-judicial process which our ancestors provided for dealing with errant politicians instead of having trials on an indictment.)

But just as a cover is not the book, an indictment is not a conviction.

It is instead the start of another process – and Trump has spent a good part of his life gaming and otherwise manipulating processes, both formal and informal.

This is the essence of the book ghost-written in his name, The Art of the Deal.

In that book, the title’s artfulness is about how negotiation processes can be exploited, how leverages can be gained, how opportunities and advantages are created and taken.

It is almost as if all his career Trump has merely been preparing for dealing with an indictment in the state of New York.

But.

Some sports are more dangerous than others, and some sports are very dangerous indeed.

And so are some processes, and if Trump puts a foot wrong in his engagement with this process then he faces a criminal record and incarceration.

Of course: Trump may, in turn, game and exploit that eventuality, and appeal to his constituency as a victim and so will emerge somehow as a winner from all this.

The criminal process will take place within a wider political-social-media game which Trump will seek to play.

I am not an American lawyer, and the actual charges for Trump are not yet clear, but it seems that they will be in respect of false accounting.

If so, the offence will not be the payment of any hush money directly, but how that payment was accounted for in the books.

And if this offence requires proof of intent, as well as the facts of the misleading or incorrect accounts, then it may not be straightforward to prove.

Absent a confession or a blatantly false statement, it is often difficult to prove fraud in respect of record-keeping.

Trump will know this, and so will his lawyers – and so will the prosecutors.

For just as Trump will be careful not to put a foot wrong, so will the prosecutors.

And as this is a criminal matter, due process and fundamental rights are on the side of Trump.

(If only all criminal defendants could be as lawyered-up and protected.)

So, yes, the indictment is novel and significant – but so were the two impeachments.

The result of this process is therefore not a foregone conclusion – for either Trump or the prosecutors.

And so both sides now will face their hardest tests.

***

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What the judge said and did not say at the Just Stop Oil hearing, and what the judge should and should not have said

22nd February 2023

The from-court sensation last week was not about something in the High Court, the Old Bailey or any of the other august courts of the English capital, but about what happened at a hearing at Wolverhampton Magistrates’ Court.

It was a legal case that involved no great issue of law, and indeed there seems no dispute about the applicable law or even its application.

The sensation was not the result of sensational news reporting from an intrepid news reporter, for there seems to have been no media present at the hearing.

And there does not seem to have been any miscarriage of justice, and the findings of guilt and acquittals seem not to have been wrong on the available facts.

But there was a sensation, all the same.

Tweets went viral, with one tweet on the hearing recording 1.4 million views.

The case was taken up by the national press, and pundits were emphatic in their support or opposition to what happened.

A former home secretary said this:

And, from the opposing perspective, a well-known Canadian campaigner said this:

And all this for case in a local magistrates’ court, with no great issue of law, no obvious miscarriages of justice, and it seems no news reporters present to record what happened.

Regardless of the substance of what happened, it is an example of what happens when the legal system and modern social media (and after a lag, mainstream media) meet.

So what did happen at that hearing at Wolverhampton Magistrates’ Court?

The straight answer is that we perhaps cannot be certain absolutely what happened, as accounts differ, and there seems to have been no recording of the hearing.

But what we can work out is as follows.

We are told there were nine defendants.

(There is a reason for the “We are told” choice-of-words, as will become apparent.)

We are also told the offence was aggravated trespass, which is an offence under section 68 of the Criminal Justice and Public Order Act 1994:

The Crown Prosecution Service guidance on the offence is as follows:

The prosecutions were in respect of this incident from April 2022, as reported by the local news Express & Star:

According to that news report:

“Around 30 protesters from the Just Stop Oil coalition, including two on the roof of a petrol tanker, blocked the exit and entrance to the Esso fuel terminal in Wood Lane, Tyburn, Birmingham.

“Members of the group called Just Stop Oil said it had blocked a number of “key oil” terminals, including the site in Tyburn, Birmingham.

“Police warned of delays as ExxonMobil UK, one of the country’s largest privately-owned underground oil pipeline distribution networks, confirmed demonstrations were under way at some of its sites. It said it had shut down three of its sites.”

The Birmingham Evening Mail reported:

“A protester was carried away by five police officers during a new blockade at a Birmingham fuel terminal.

“Activists from Just Stop Oil again blocked access to the Esso site in Tyburn today, Sunday, April 3, despite more than 100 arrests across the country this week. A police cordon was in place in Wood Lane, where officers had been stationed since 7.30am. West Midlands Fire Service was also in attendance.”

Two days before, the Birmingham Evening Mail reported:

“A Just Stop Oil protester glued his hands and bare feet to the road during a nine-hour protest in Birmingham. Others have glued themselves to each other.

“Up to 45 protesters have been disrupting oil tankers heading in and out of the Esso Fuel Terminal on Wood Lane, Tyburn, near Erdington, since 4am today, Friday, April 1.”

The “Just Stop Oil” group behind the protests published this release at the time:

“For the third day in a row, supporters of Just Stop Oil have disrupted oil supplies from 7 critical oil facilities near London and Birmingham in support of their demand to the UK government to end new oil and gas projects in the UK.

“Early this morning people climbed on and blocked oil tankers at 5 critical oil terminals. A few have entered the loading bay at Buncefield oil terminal in Hertfordshire and are standing on oil tankers holding banners.

“At Kingsbury, Midlands and Esso terminals in Birmingham oil tankers have been prevented from leaving by people sitting in the road.”

From the contemporaneous news reports and the contemporaneous Just Stop Oil press release there can be no doubt that (a) disruption was caused and (b) disruption was intended to be caused.

As such, anyone who caused the disruption and intended to cause the disruption could have no serious defence to a charge of causing and intending to cause the disruption.

And so from the protest last April, a prosecution was brought this month at Wolverhampton Magistrates’ Court.

We are told that that the hearing involved cross-examination, and that evidence was put in by the defendants.

This would mean that notwithstanding the openly expressed intention by Just Stop Oil to cause disruption, and the evidence of the disruption caused, the defendants pleaded not guilty. This would also accord with two of the defendants being acquitted.

Seven of the defendants were however found guilty.

The judge – District Judge Wilkinson – said some things.

And this is when things become less certain.

A judge can say various things during a hearing – indeed, no one is usually in a position to tell them to shut up.

A judge making any significant decision will usually give reasons.

A judge imposing a sentence will give what are called “sentencing remarks” – which, in some national-profile cases are collected and published by the Judicial Office (previous examples are here).

But when a judge acquits they may also give reasons.

And sometimes what a judge says is set out in a prepared script, sometimes it is based on notes, and sometimes a judge may speak without notes.

After the hearing, the Just Stop Oil published a press release:

This was quite the headline, given that there were seven defendants found guilty.

The press release also contained what it called a “summation” – which is not a legal term for anything a judge says – and this “summation” is quoted as if it was verbatim:

“It’s abundantly clear that you are all good people. You are intelligent, articulate and a pleasure to deal with. It’s unarguable that man-made global warming is real and we are facing a climate emergency. Your aims are admirable and it is accepted by me and the Crown Prosecution Service that your views are reasonable and genuinely held. Your fears are ably and genuinely articulated and are supported by the science.

“When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”

It was the screenshot of this “summation” that went viral.

And, as you can see, it is the last of the paragraphs quoted which provided the headline to the press release.

The impression of that last paragraph (given the “you” in the prior “… I have to convict you…”) is that the judge’s remark that “You should feel guilty for nothing” is addressed to all the defendants.

But that final remark is no more striking than the rest of the quoted text.

Did a judge really say all these things to defendants in a criminal case?

When I saw the viral tweets I did nothing to promote or amplify them.

In fifteen years of legal commentary I have learned that when a judge is reported to have said something sensational – especially if it accords with your world-view – it is better to wait for it to be verified before congratulating or castigating the legal system.

But pretty soon these viral judicial remarks prompted an equal and opposite reaction. The Daily Telegraph reported:

The news report continued:

“But on Friday afternoon, the Judicial Office, which represents judges, admonished the group for “misquoting” the judge. […]

“In a rare intervention, the body accused them of taking a phrase “out of context” and issued an almost entirely different account, saying it was “what the judge actually said”

“[…] the Judicial Office said: “It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter.”

(The judge’s statement was also posted on the Crimeline site, though inadvertently incorrectly titled as “full” sentencing remarks.)

An “almost entirely different account”?

This was becoming fascinating.

So far in this post I have relied on the Just Stop Oil press release for the from-court facts – hence the “We are told” formulation above – but the facts stated above – charges, number of defendants, disposals – do not seem to be controversial, or indeed controverted.

But now we have an alternative version of what happened.

The Judicial Office had contacted the judge, who provided his own note of what was said.

The judge’s note was:

“As a judge my overriding duty is always to uphold the law without fear or favour.

“This is not a court of morals it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.

“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.

“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self appointed sheriff if I acted in such a way.

“It is abundantly clear that you are all good people, intelligent and articulate and you have been a pleasure throughout to deal with. It is unarguable that man made global warming is real and that we are facing a climate crisis. That is accepted and recognised by the scientific community and most governments (including our own).

“Your aims are to slow or even stop the advance of global warming and therefore to preserve the planet not just for generations to come but for existing generations. No one can therefore criticize your motivations and indeed each of you has spoken individually about your own personal experiences, motivations and actions.

“Many of your explanations for your actions were deeply emotive and I am sure all listening were moved by them, I know I was. In simple terms you are good people with admirable aims.

“However if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

The Judicial Office also told reporters by email on Friday last week:

“The judge in the case pointed out that Just Stop Oil have have misquoted him and put in words he never spoke. He has sent [us] the text of what he actually said below.

“They have also quoted the line, “You should feel guilty for nothing” out of context. It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter. It was not in the context that the seven convicted should feel guilty for nothing which would make no sense at all in the context of the judge having convicted them.”

I asked the Judicial Office whether the judge’s note was read out verbatum in court – or it it was just the basis of what was said in court. I also asked for confirmation that the note was not prepared after the hearing.

I was told the following:

“[these] were words that the judge had prepared before sentencing and were said verbatim. He made some other comments as part of his sentencing but these were based on notes he made in advance but were not delivered verbatim. As there is no recording or transcript made of proceedings in the magistrate court and in the absence of fully written sentencing remarks, this was the best [we] could provide at short notice in terms of what the judge had said in his own words.”

If you compare and contrast the two statements – what Just Stop Oil said and what the judge said through the Judicial Office – there are three main points of comparison and contrast.

The first part of the judge’s comments are not in the Just Stop Oil press release, and they are a statement of general principle. As my fellow legal blogger Matthew Scott avers, “As an abstract statement of principle that could not have been put better.”

But as Scott also correctly observes, these remarks expressly introduce a tension between “politically or morally motivated decisions” and “established legal principles”.

As such, these prefatory remarks do not really help the judge against criticism – and they do not really change the framing of what then follows.

Yes, these general remarks provide a context – but they do not render what then follows as out of context.

If we now jump to the end of the comments, and to the Judicial Office email, the judge, however, has a good point.

The “you should feel guilty for nothing” remark appears not to have been directed at all the defendants, but to only one and in a specific situation.

Just Stop Oil accepted this, and they amended part of their press release accordingly – though this was too late for the viral tweets.

Just Stop Oil, however, have not amended the sensational title of their press release, which still gives the impression that the statement was said to all the defendants:

As for the middle part of the text, there is little substantial difference between the two accounts.

Other than the paragraph “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.” – which seems an unlikely frolic for a judge to have gone on in sentencing remarks – all the other comments attributed to him seem to have counterparts in the Just Stop Oil account.

In my view, the differences can be accounted for by brief notes being reconstructed after the event into prose.

Of course, Just Stop Oil should not have presented such reconstructed comments as being verbatim. But it is a strain to say that their version of what was said is an “entirely different account”.

Indeed, had it matched the judge’s own notes exactly, it would look as if they had secretly recorded the judge.

I asked Just Stop Oil to explain how they put their version together. They said:

“We have notes from a defendant in court who cross checked them with others that were there and also notes from the defence lawyer […] who acted for one of the defendants.

“We corrected the press release when we became aware via Crimeline that one of the remarks was said to an individual defendant and we had taken it out of context.

“We have not received any communication from the judicial office and there appears to be nothing on the website so we’re slightly bemused by the framing in some of the media articles that suggests that we had some kind of official rebuke.

“We have not seen the information that was given to the press in its entirety but it is obvious that the Crimeline account stops short before the remarks around sentencing (since it contains no information about the sentences that were handed down).

“From looking at [lawyer’s] notes we can see that several of the remarks we have reported were made after sentences were pronounced.”

So it does appear the supposed verbatim press release was reconstructed – and that the statements were not said all at the same time.

Which leaves the final question: was it right for the judge to say such things – regardless of the reported sequencing?

Here, we should rely on the judge’s own account of what he said.

Judges’ comments when sentencing are not a bad thing.

Every court day, up and down the country, criminal judges will say things in what are immediate situations that exhort the defendant to do better in future or admonish the guilty.

At worst, such statements are harmless or futile, and at best, such statements may be beneficial to those being exhorted or admonished, and thereby to society.

Not all sentencing remarks can or should be as impeccable as the ones published on the national judicial website.

But.

Judges can and do say things they should not say.

Here a judge was addressing protesters in respect of a highly publicised incident organised by a highly publicised pressure group.

It was entirely foreseeable that what he said would be publicised.

And even it was not foreseeable, and it was an otherwise unexceptional courtroom on a cold and routine day in Wolverhampton Magistrates’ Court, it was inappropriate for a judge to express such general political sentiments, either in sentencing remarks or otherwise.

As it happens, as someone with politics broadly as green as my surname, the sentiments expressed by the judge would be ones I would like to see expressed more often by politicians.

But imagine a latter-day Judge Pickles or Judge Argyle type judge expressing sentiments in support of what illiberal right-wing protesters had done on some other demonstration.

That would be wrong, and would call the administration of justice into question, and so what the judge in Wolverhampton said was wrong too.

So, in (ahem) summation: Just Stop Oil erred in the title and content of their press release, and the judge erred more seriously in making the comments in the first place, even accepting his own version of his remarks.

And the real problem, as this blog averred recently, is with the refusal by the courts to provide or allow recordings of what judges say in open court.

There is no good reason for this prohibition, and scarcely even a bad reason – it is just unthinking conservatism.

Perhaps there should be a protest organised against it.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.