One of the ugliest aspects of modern culture is the glamourisation – and monetisation – of serial killers.
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In From Hell by Alan Moore and Eddie Campbell, about the Whitechapel murders, an opportunistic salesman sets up stall after the body of Catherine Eddowes is found in Mitre Square:
We then go to the reaction of the investigator Detective Abberline:
And then, in Moore’s footnotes to the story:
Quite.
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The best thing, of course, to read on those killings is Hallie Rubenhold’s The Five.
Here Rubenhold pulls together the extant information about the lives of each of the victims for a sequence of compelling social histories.
Rubenhold explains how the victim’s social and economic predicaments – especially the then-common outdoor sleeping of the Victorian poor – made them easy to kill.
And also how social prejudices about (supposed) prostitution meant the murders were not taken seriously.
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In The Collectors episode of The Sandman, Neil Gaiman and Mike Dringenberg depict a convention of serial killers, with all their braggy self-importance.
But at the end of the convention these proud killers are stripped of their glamours:
And they disperse as pathetic losers.
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It is not just comics.
The serial killer as a figure whose ‘mind’ we are supposed to ‘enter’ is a staple of modern fiction – and modern non-fiction.
Take the pseudo-science of ‘profiling’.
It certainly makes great film and television:
But profiling is mainly woo-woo – at least to the extent to which it is based on individual subjective assessments rather than broad statistical analysis.
And the glamourisation – and monetisation – of serial killers continues.
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So it was against this background when I stumbled on the following YouTube video.
I was expecting more of the same Cracker and Mindhunter tish-tosh.
How wrong I was.
Instead of the usual pseudo-science, Professor David Wilson takes us on a refreshingly sensible and unimpressed guided tour of well-known and less well-known depictions of serial killers.
This is Wilson on Lecter:
“I have encountered serial killers who have tried to scare me, but I wouldn’t be scared by Anthony Hopkins.
“I’d have laughed, frankly, if you’d told me about fava beans and a nice Chianti.”
The video is worth watching from beginning to end – and the end is brilliant (here is the video at 27:54):
Wilson refers to the “trope that we see in a lot of Hollywood movies, that people like me would try and enter the mind of a serial killer.”
He then concludes the video:
“I am not interested in what motivates a serial killer.
“I am much more interested in who it is the serial killer is able to kill.
“If we concentrated our attention on the groups that serial killers constantly target, we would do a lot more to reduce the incidence of serial murder in our cultures, as opposed to any number of offender profilers who claim that they can ‘enter the mind of a serial killer’.
“If you really want to do something to reduce the incidence of serial murder in our culture, let’s challenge homophobia, let’s have a grownup debate about how we police those young men and young women who sell sexual services, and above all, let’s try and work out why the elderly are so vulnerable in our culture because they don’t have a voice and have no power.”
Quite.
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The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.
Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.
All they were doing was advising on the law, and that is what is lawyers do.
I was being unfair, the response averred.
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Such a protest is, in my view, to confuse positive and normative statements.
The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.
This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.
And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.
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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post
There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.
Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.
But even taking such normative points at their highest, there remains the positive and undeniable fact.
That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.
And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.
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This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.
One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).
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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.
An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.
That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.
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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.
Either such practices will not be prohibited or such practices will be positively facilitated.
In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.
And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.
Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.
And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.
A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.
None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.
Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.
And such liberal and progressive laws and lawyers should be celebrated.
But.
It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.
And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.
All that liberal and progressive laws and lawyers are taking away are what other laws and lawyers provided in the first place.
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Ten years ago I went along to the south London shopping centre expecting to report on a riot.
At the time I was legal correspondent for the New Statesman, and all that day I had seen on Twitter that, among other places, there would be disorder in Bromley – and I was interested in what the reaction of the police and the courts would be.
The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ, and certainly the only one that has ever been published that has been taken by me.
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Elsewhere, however, there were riots.
Following the riots, there were speedy arrests and speedy prosecutions.
And, in turn, there were speedy convictions – and, I recall, very harsh sentences.
At the time the sentences seemed disproportionate and were meant to be disproportionate.
Today, ten years later, it is reported that a prosecutor from the time had/has doubts as to the severity of the sentences.
But at the time, few if any cared – the defendants ‘should have known better’ and they ‘got what they deserved’.
My view at the time was that it would have been better to prosecute and convict on a normal basis – to show that the legal system was not easily shaken into exceptional behaviour.
To, in a way, normalise things.
But those who supported the harsh sentences would point to the (relative) lack of riots since – as if there was a simple monocausal relationship between sentences and riots.
As it happens, many of the preconditions for the 2011 riots still seem present – and, indeed, they are always present.
And one wonders whether the harsh sentences (and decisions to prosecute) ten years ago have done more damage socially in how they have affected the lives of those, as the Guardian piece describes them, were ‘caught up’ in the riots.
Such injustices never are warranted – even as a deterring example to others.
An injustice is always still an injustice.
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Like historians who say the middle class is always rising and the gentry always declining, crime policy is always getting ‘tougher’.
How can anybody involved in formulating and promoting this ‘policy’ keep a straight face?
Even the details of the policy are risible.
Pure ‘law and order’ theatre.
Convicts in high-vis jackets – for show.
A police officer with contact details – for show.
Stop-and-search policies without the need for suspicion – for ‘confidence’.
No thought, no substance – no thinking about rehabilitation, no thinking about a sensible and proportionate drugs policy.
And none of this new.
It is a staple for home secretaries of both main parties to want to introduce -in effect – the public humiliation of chain gangs.
As if that would have any beneficial effect for anyone.
There is already a police officer designated in charge of a case.
And indiscriminate stop-and-search creates tensions and conflicts in communities – and leads to the lack of confidence in the police.
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All shallow-showy or counter-productive stuff.
Nothing serious, even from a ‘small-c’ conservative perspective, let alone from a sensible liberal perspective.
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What we need is not a stop-and-search policy but a stop-and-think policy.
But – as this blog has previously averred – we have politicians more interested in ‘Law and Order!’ – complete with capitals and an exclamation mark – than actual law and order.
This is newspaper column material – but without even a reasonable suspicion of serious policy.
Appropriately, the best response was from cobblers:
Instead of making offenders wear high viz jackets in chain gangs, how about helping them get a real job instead? In my shops we employ lots of ex offenders and they wear a shirt and tie. Same people, different approach, a much better outcome.
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A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.
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We are shocked and saddened to report some of our volunteer crew were verbally assaulted due to their role when reporting for duty tonight. This behaviour will not be tolerated. Thank you @metpoliceuk for your support.
Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.
Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.
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Those who defend such abuse may seek to say that it is only ‘freedom of speech’.
But no society has absolute free speech.
An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.
And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.
But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.
Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.
And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.
The ultimate issue here is not a public order problem with a neat legal solution.
The issue is cultural and political and social – and so only looking to the law would be an error.
There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.
Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.
Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.
Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.
But such prosecutions would not make the problem go away.
Something deeper and more disturbing is afoot.
Brace, brace.
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The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.
The concern primarily used to be about what could be done by means of espionage.
And this generally made sense, as the means of publication and broadcast were in the hands of the few.
Now the bigger threat is mass-publication to the world.
This is a particularly striking passage (which I have broken into paragraphs):
“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.
“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.
“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”
Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.
And there is already an offence in respect of unauthorised disclosure by third parties.
But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.
A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.
So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.
What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.
But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.
In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.
The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.
Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.
Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.
Journalism does not go away, just because you do not mention it and pretend it is not there.
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In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
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‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
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‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
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‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
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‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
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Having set out what the Daniel Morgan independent panel meant by ‘institutional corruption’ in my last post, and having done a Financial Times video on how the panel applied that definition to the metropolitan police, the obvious next questions is whether any other public bodies would also come within this definition.
Or is it a term that can only apply to the metropolitan police in respect of specific matter over a specific period?
If the term ‘institutional corruption’ is to have any import, it must presumably be capable of being applied to other institutions and in respect of other corruption.
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To remind ourselves, this is how the panel defined corruption in its report:
‘The Panel has adopted a broad definition of corruption for the purposes of its work.
‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:
‘The improper behaviour by action or omission:
‘i. by a person or persons in a position of power or exercising powers, such as police officers;
‘ii. acting individually or collectively;
‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :
‘iv. of the individual(s) involved; or
‘v. for a cause or organisation valued by them; or
‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.
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More succinctly, the test for corruption can be set out in four stages:
(1) WHAT – acts and/or omissions constituting the improper behaviour;
(2) WHO – by a person or persons in a position of power or exercising powers (and this may involve other people too);
(3) WHY – for the direct or indirect benefit of the person(s), their organisation or other people; and
(4) REASONABLENESS – a reasonable person would not expect that WHAT to be done(or not done) by WHO for that WHY reason.
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The panel saw the following failings by senior managers as fulfilling the WHAT + WHO + WHY + UNREASONABLE requirements:
‘i. failing to identify corruption;
‘ii. failing to confront corruption;
‘iii. failing to manage investigations and ensure proper oversight;
‘iv. failing to take a fresh look at past mistakes and failures;
‘v. failing to learn from past mistakes and failures;
‘vi. failing to admit past mistakes and failures promptly and specifically;
‘vii. giving unjustified assurances;
‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’
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Such corruption would be ‘institutional corruption’ according to the panel as follows:
‘when […] failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption”
The key term here is ‘dishonesty for the benefit of the organisation’.
Accordingly the full test for ‘institutional corruption’ appears to be:
WHAT + WHO + WHY + UNREASONABLE + BENEFIT OF ORGANISATION
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The recent scandal of the post office prosecutions comes to mind as another situation that would meet this definition – especially the knowing non-disclosure and attempts to mislead the court.
The panel themselves mentioned ‘the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.’
And I am sure some of you can think of others.
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The independent panel report on Daniel Morgan found that the Metropolitan police was – and is – institutionally corrupt.
To dispute this finding – let alone to attempt to repudiate or refute it – requires you to do one (or both) of two things.
Either you have to challenge the facts on which the finding is based – and this is difficult in respect of the Daniel Morgan report, which is comprehensively sourced and footnoted (and all the report’s critical findings would also have been put to those criticised for their response as part of the preparation of the report).
Or you have to challenge the definition itself.
And so this blogpost sets out the definition adopted and then applied by the panel in the compilation of the report.
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The relevant part for the definition is deep inside the report, on pages 1022 to 1025 of this pdf (page numbers 1017 to 1021 of the document itself).
The starting point is the terms of reference for the panel, which included:
‘The purpose and remit of the Independent Panel is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987.
‘In doing so, the Panel will seek to address the questions arising, including those relating to:
‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […].’
(Please note that in this post I break the paragraphs of the report out into sentences for flow and sense.)
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The panel, however, did not just proceed from the terms of reference, but sought to understand what ‘corruption’ meant in this context:
‘The Terms of Reference give a vague formulation of […] the role played by police corruption in protecting those responsible.
‘There are two possible interpretations of this.
‘It could mean that,
‘i. one or more police officers became aware after the murder of who was responsible and protected them; or
‘ii. one or more police officers who were not aware of who was responsible for the murder committed corrupt acts for their own reasons, and in so doing compromised the investigation with the result that there was no evidence capable of proving who was responsible for the murder and of bringing them to justice.’
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The panel then said that it was taking its term of reference,
‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […]’
to mean,
‘whether there was any police corruption affecting the investigation of the murder and making it impossible to bring whoever was responsible to justice’.
Here the panel had regard to the metropolitan police’s own admission that there had been a ‘failure to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice’.
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So that it how the panel was to interpret its term of reference.
But this does itself not tell us what the ‘corruption’ word means.
As the panel noted:
‘The Panel’s Terms of Reference do not include a definition of corruption.’
As the terms was not defined in there terms of reference, the panel had to work out its own definition.
In doing so, the panel looked at other definitions and uses of the word:
‘The Panel has therefore developed its own definition, drawing upon the definitions of corruption and corrupt behaviour used by relevant bodies.
‘Such bodies include the Independent Police Complaints Commission and its successor organisation, the Independent Office for Police Conduct, the National Police Chiefs Council, the College of Policing and the Metropolitan Police.
[…]
‘To inform its analysis, the Panel has drawn upon the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.
‘These inquiries and reports provide important insights into serious failures of a variety of public services, including but not limited to the police, and address the complex issues of accountability and corruption.’
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Having had regard to how other inquires and reports have defined and used the word ‘corruption’, the panel also considered the common definitions and uses of the word:
‘The generic definition of corruption is ‘dishonest or fraudulent conduct by those in power, typically involving bribery’.
‘This definition suggests that for dishonest conduct to amount to corruption the person acting corruptly must be someone in power or exercising powers.
‘This definition would apply to police forces, prison, probation and healthcare services, or other organisations serving the public.
‘In these settings, ‘corruption’ may denote the misuse of authority in terms of deviance from the law, professional norms, ethical standards or public expectations.
‘In common parlance ‘corruption’ is also used to refer to the venal behaviour of persons who do not hold positions of power, but who do have something to sell, or who act as corrupters in that they bribe persons exercising powers to commit corrupt acts: it follows that people within and outside the police may be involved in ‘corrupt behaviour’.’
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Having had regard to these other definitions and uses, the panel then went back to its own terms of references:
‘The Panel’s Terms of Reference require it to consider, primarily, wider questions relating to corruption.
‘It is asked to address:
‘i. ‘police involvement in the murder’.
‘By any reasonable person’s definition, if police officers commit or assist in planning a murder, it is not only the most serious crime of taking a person’s life, but it is also the gravest breach of the duties of a police officer.
‘ii. ‘the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption’.
‘The ‘corruption’ is not explained further, but the Terms of Reference refer to the fact that ‘in March 2011 the Metropolitan Police acknowledged “the repeated failure of the MPS [Metropolitan Police Service] to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice”.
‘iii. ‘the incidence of connections between private investigators, police officers and […] the media and alleged corruption involved in the linkages between them’.
‘To do this, the Panel has adopted an expansive approach to ‘corruption’, including the conduct of the police and the behaviour of other individuals linked to the police or involved in corrupt activity with them.’
*
So having considered how the term ‘corruption’ is or had been used elsewhere – from similar reports to common parlance, and having also considered what the word must mean in the context of the terms of reference, the panel then set out the definition of ‘corruption’ for the report.
It was a broad and deliberately flexible definition:
‘The Panel has adopted a broad definition of corruption for the purposes of its work.
‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:
‘The improper behaviour by action or omission:
‘i. by a person or persons in a position of power or exercising powers, such as police officers;
‘ii. acting individually or collectively;
‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :
‘iv. of the individual(s) involved; or
‘v. for a cause or organisation valued by them; or
‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.
‘The Panel has used this definition to consider the conduct of the police officers involved in the investigations of the murder of Daniel Morgan.
‘The Panel includes in its wider definition of corruption some instances of failures on the part of senior officers/managers, acting as representatives of their organisations.
‘The documentation reveals the following wide range of actions and omissions by senior postholders on behalf of their organisations; many of these actions and omissions have been identified in the reports of other independent panels and inquiries:
‘i. failing to identify corruption;
‘ii. failing to confront corruption;
‘iii. failing to manage investigations and ensure proper oversight;
‘iv. failing to take a fresh look at past mistakes and failures;
‘v. failing to learn from past mistakes and failures;
‘vi. failing to admit past mistakes and failures promptly and specifically;
‘vii. giving unjustified assurances;
‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’
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The panel were also aware that important in understanding any practical definition is an understanding of what is not included:
‘[…] failings do not all automatically fall within the definition of corruption. Some may result from professional incompetence or poor management.’
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And now the panel comes to what it meant by ‘institutional corruption’:
‘However, when the failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption.
‘A lack of candour on the part of the Metropolitan Police in respect of its failings is shown by a lack of transparency, as well as prevarication and obfuscation.’
*
The panel then amplifies or illustrates this ‘institutional corruption” term elsewhere in the report:
‘The family of Daniel Morgan suffered grievously as a consequence of the failure to bring his murderer(s) to justice, the unwarranted assurances which they were given, the misinformation which was put into the public domain, and the denial of the failings in investigation, including failing to acknowledge professional incompetence, individuals’ venal behaviour, and managerial and organisational failures.
‘The Metropolitan Police also repeatedly failed to take a fresh, thorough and critical look at past failings.
‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.’
[…]
‘When failings in police investigations are combined with unjustified reassurances rather than candour on the part of the Metropolitan Police, this may constitute institutional corruption.
‘The Metropolitan Police’s culture of obfuscation and a lack of candour is unhealthy in any public service.
‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit.
‘In the Panel’s view, this constitutes a form of institutional corruption.’
[…]
‘Unwarranted assurances were given to the family, and the Metropolitan Police placed the reputation of the organisation above the need for accountability and transparency.
‘The lack of candour and the repeated failure to take a fresh, thorough and critical look at past failings are all symptoms of institutional corruption, which prioritises institutional reputation over public accountability.’
The report also provides explicit illustrative examples of institutional (as opposed to non-institutional) corruption on pages 1073-1075 of the pdf (page numbers 1069-1071).
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The report describes the careful consideration that went into defining both ‘corruption’ and ‘institutional corruption’.
The challenge, therefore, for those who wish to dismiss the finding of the independent panel that there was (and is) institutional corruption at the metropolitan police is either to deny the examples or to fault its definition and application.
It may be that some of those defending the metropolitan police see nothing (that) wrong in the internal solidarity and reputational protection that the panel describes as ‘institutional corruption’.
That it is not denied that bad things happened, but that they cannot be described as ‘institutional corruption’.
They may just not like such a term being used of such things.
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Given the care with which the panel considered and then defined (and then applied) the word ‘corruption’ that was expressly part of its terms of reference, any casual knee-jerk dismissal will not be sufficient.
A critic has to do better than to shake their head.
As I have set out in this Financial Times video, the panel have made out a substantial charge of ‘institutional corruption’ – and so this now requires an equally substantial response from the metropolitan police.
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