Category: Litigation

Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

*****

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Computer says ‘guilty’ – the scandals contained within the Post Office miscarriage of justice scandal

 4th June 2021

One of the successful appeal barristers in the Post Office miscarriage of justice scandal has given a powerful and important speech, which you should click on and read here.

Almost every paragraph contains devastating stuff – mistake and abuse, after mistake and abuse.

So immense a miscarriage of justice was the whole affair that it is difficult to get one’s mind around the scale of what went wrong.

I think there were three particular scandals that comprise the wider scandal – though this is not an exhaustive list.

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One scandal is the extent of what went wrong and how long it took for anything to be put right – the number of people involved and affected, and the length of time it has taken for there to be any justice.

Here it should also be noted that had it not been for exemplary judging in the civil case by Mr Justice Fraser, there may still not be anything approximating any justice in this case.

A huge, horrible system failure of the English legal system.

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A second scandal is just how many managers and lawyers in the Post Office knew that there were injustices – or did not care that there were injustices – but pressed on with the prosecutions and resisting the civil claims anyway.

Here the failure is not so much of a system but of individual professional decisions made by many who could and did know better.

The aggregate effect of all these bad decisions was immense – but each decision could and should have been different.

It is not good enough for those who made those bad decisions to hide behind any system failures – each should be held accountable for their individual decisions.

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A third scandal is the most basic of all – and is more fundamental than the failure of the legal system and the failures of managers and lawyers.

This scandal is about human credulity.

This scandal is about how mere shortfalls on a computer system were capable of being sufficient evidence in-and-of-itself for postmasters and postmistresses to be criminalised.

Computer says: guilty.

Here the scandal is not about systems or decisions – but about the nature of evidence and proof itself.

A problem of general gullibility.

As the appeal barrister Paul Marshall says in his speech:

‘One of the features of these miscarriages of justice is that, in almost all cases, the only evidence against the defendant in question was a shortfall shown in the Horizon computer system.   If you remember only one thing from this talk, bear in mind that writing on a bit of paper in evidence is only marks on a piece of paper until first, someone explains what it means and, second, if it is a statement of fact, someone proves the truth of that fact.  

‘The simplest explanation for the Post Office scandal is that documents generated by the Horizon computer system were routinely treated by lawyers and judges as though statements of fact that were true, without bothering to consider how their truth should be established.  It was taken as given that what a computer record showed was correct. The shallowness of this approach is reprehensible.’

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Even if the legal system had worked better, and even if Post Office managers and lawyers had made better decisions, there was always going to be a problem if such uncritical deference was given to computer records.

A computer should never be the one to, in effect, pronounce guilt.

*****

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Did the Home Office blink? – the significance of today’s announcement of a date for the Daniel Morgan report

28th May 2021

Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.

This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.

The statement of the panel is here and should be read in full. 

This is, of course, welcome news.

It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.

The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.

Delay and blocking

This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.

This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.

If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.

There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.

Redactions

The statement also deals with the issue of any home office redactions.

Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.

Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.

Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.

The redactions cannot just be silently made, with no one to know.

Again this is a set-back if the objective of the home office was to have room to make such silent redactions.

Forewarnings and leaks

If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.

This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.

It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.

This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.

Making sense of the Home Office intervention

As this blog has already averred, there appears to be no good reason for the late home office intervention.

The purported reasons do not add up – and they appear to be improvised and cynical.

As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.

I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.

As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.

The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.

It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.

But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.

The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.

*****

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The extraordinary intervention of Priti Patel in delaying publication of the Daniel Morgan report

19th May 2021

This is not a conspiracy theory blog.

Conspiracies do, of course, exist – often to cover up cock-ups, for that is usually the only time when any given group of people have the focus and motivation to act in concert.

But a conspiracy is rarely the first notion that comes to my mind to explain any odd state of affairs.

And so, in respect of the 1987 murder of Daniel Morgan, I do not know why he was killed and who killed him.

This is just not safe legal-libel speak: I genuinely have no idea, and I offer no theory.

But what is odd about this murder was the aftermath: a remarkable succession of failed investigations and prosecutions.

Here, again, there may be explanations short of a conspiracy.

Court cases and so on fail all the time, and for various reasons.

And even if those reasons point to systemic failures, often those system failures are not conspiracies but just, well, system failures.

But.

The succession of failed investigations and prosecutions in the case of Daniel Morgan also indicate that there may be concerted wrongful conduct.

And nobody who knows anything about the metropolitan police and their relationship with the tabloid media at the relevant time would be surprised if there had been undue pressure and corruption.

Still: we do not know for certain.

And this is why an independent panel inquiry was set up in 2013 to, as far as possible, get to the bottom of what happened and what, if anything, went wrong.

(My 2012 piece calling for a formal inquiry is here.)

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The panel spent eight years putting together a detailed report.

The eight year period indicates the complexity and perhaps the seriousness of the matters being investigated.

And this long-awaited report was about to be published…

…when in an extraordinary intervention Priti Patel, the home secretary, has delayed its publication.

https://twitter.com/davidallengreen/status/1394982007093043201

 

We even have the remarkable sight of Patel relying on the Human Rights Act as part of the excuse for the delay.

As the panel has pointed out – in an impressively robust statement (which you should read) – there is no good reason for this intervention.

None of the supposed reasons add up, and it appears to me that the home secretary’s stated reasons are mere pretexts.

This is an extraordinary intervention by a politician in an independent inquiry.

And it also may be counter-productive – as it is drawing attention to a report that – even if it were critical – may have had little press or public attention.

After all – as I aver above – few would be surprised that bad things were happening at the time with the police and the media.

So, even if there is something in there which Patel, for political reasons, did not want in the public domain, her delay may be bringing attention to a thing others may have preferred were left not emphasised.

Some commenters believe that the report will be an exposure of the corrupt relationships between the media and the police of the time.

I have no idea.

But many will be even more interested in the report now after Patel’s extraordinary and perhaps clumsy intervention.

And we should hope that the report when published finally brings some justice for the family of Daniel Morgan who have campaigned tirelessly since his death for the truth to be revealed.

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

*****

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That was the County Court Judgment that was – and why everyone is entitled to a civil justice system that works at the speed it worked for Boris Johnson

13th May 2021

This time yesterday Boris Johnson had a County Court Judgment (CCJ) against him that had been entered back in October 2020.

Like anyone with a contested CCJ he faced the irksome process of applying to the court to set the judgment aside and, if the claim was ill-made, striking out the claim.

The application process can take weeks or months for normal defendants in this predicament – and Johnson faced having to also explain his delay in contesting the case.

And now: it is reported that the CCJ is no more.

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That is extraordinarily fast for the civil justice system.

It would seem that it may be that an application was not even needed – and the courts set aside the claim and struck out the claim by their own motion.

The claimant has wrongly made, it seems, a defamation claim in the wrong court and in the wrong manner.

As such, the court can act without reference to the parties and end the claim there and then.

But.

For the rest of us the civil justice system is nowhere near as prompt.

Claimants and defendants can wait years for a hearing date.

Those with wrongful CCJs can suffer for months until the court gets round to hearing an application for the CCJ to be set aside.

There is nothing wrong whatsoever with the courts acting so swiftly to set aside the CCJ entered against Johnson.

What is wrong is that the rest of us do not get the benefit of civil justice at this same commendable speed.

 

The County Court Judgment against Boris Johnson – an explainer

12th May 2021

[This post now has an Addendum]

Today’s Private Eye revealed that there is a county court judgment (CCJ) against Boris Johnson.

https://twitter.com/peterwalker99/status/1392416320042504197

What can be worked out from this information?

First, it appears that it is a judgment against Johnson as a private individual, as the legal claim was not made against him as prime minister – we know this as this claim process cannot be used against central government entities.

Also note that it does not matter that Johnson’s full name is not used, and that the address is ‘Number 10’ when in fact he lives at Number 11, if those were the details provided by Johnson to the claimant.

Second, the legal claim was made online – we know this because of the court name and because of the ‘MC’ used in the case reference number.

Third, it appears to be a debt claim – as the claim appears to have been for a specified amount.

[UPDATE – this third observation seems not correct – see Addendum below.]

Fourth, it appears that the CCJ is a so-called ‘default judgment’ – this is a judgment that are entered against defendants if they either do not acknowledge the claim or do not defend the claim in time.

That it is a default judgment is suggested by the claim not having been allocated to an actual county court.

On the assumption that the CCJ is for a default judgment, then there are two likely explanations.

The first explanation is that the claim was not properly or validly served – that Johnson had no idea that there was a claim against him.

The second explanation is that the claim was properly and validly served but that, for some reason, the claim was not dealt with properly.

A default judgment is not directly about the merits of a claim – it is a procedural device which has the effect of making defendants take a claim seriously.

If a claim comes in and is, say, ignored then a default judgment will be entered.

Given the sheer amount of correspondence that is received in Downing Street, it is perhaps understandable that occasionally items are missed.

That said, for an October 2020 CCJ to be revealed in May 2021 indicates that:

(a) any final demand or letter before claim was missed/ignored;  

(b) the claim form was either not served or was missed/ignored; and

(c) a copy of the CCJ was missed/ignored.

What a default judgment does not necessarily indicate is that there were insufficient funds – for a CCJ can still be headed off even when a claim form is served as long as the defendant reacts promptly.

Therefore what the CCJ speaks to is not Johnson’s impecunity (at least not directly) but to Johnson’s disorganisation.

Somehow, someway it appears that Johnson (or his office) missed or did not respond to a final demand/letter before claim, a claim form and (most strikingly) the actual judgment and court order.

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So what can Johnson do now?

He can seek to apply to the court to have the CCJ set aside.

But here he may face problems.

He can have the judgment set aside as of right if he did not actually receive the claim form.

But if the claim form was validly served then (in general terms), he can only have the judgment set aside at the discretion of a judge.

For a judge to exercise this discretion in Johnson’s favour he has (again in general terms) to show two things.

First, he would need to show that there was a defence to the claim – that he did not actually owe the money.

Second, he would also need to show that he had acted promptly – and here the calendar is against him.

Waiting until May to apply to have an October judgment set aside will not be an easy thing to explain to a judge – and one can imagine many judges being unimpressed by the delay, regardless of the merits.

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Downing Street has now provided a statement.

From this statement it can be inferred that the claim was indeed validly served – else that would be the basis for the application and not the basis given.

Instead, the statement uses standard wording which goes to the exercise of a judge’s discretion.

(One suspects that the wording of the Number 10 statement was provided by a lawyer.)

Perhaps the claim was a prank – though it can be a quite serious and potentially criminal matter to issue a false legal claim.

There seems to be off-the-record briefing to political reporters saying that the claim was not ‘genuine’ – but even if this is the case, there was still a claim form and a CCJ missed by Downing Street and/or Johnson.

The fact that the claim may not have been well-made does not take away from the evident disorganisation which meant that a claim was served on and a CCJ received by Johnson and nothing appears to have been done about it.

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It cannot be assumed that a court will set a CCJ aside even if the claim is not ‘genuine’, if there has been too much delay.

Courts are increasingly unwilling to give any relief from sanctions in civil cases – and a default judgment is a sanction for non-compliance. 

And there is, of course, a recent example of a civil court being unimpressed with a (former) government minister who did not comply with the civil procedure rules: Andrew Mitchell v News Group Newspapers Ltd.

In that case, Mitchell’s legal team did not get around to serving a costs budget in time – a delay which cost Mitchell about £500,000 – some thousand times more than this CCJ.

A court may be similarly unwilling to give Johnson a relief from this sanction.

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MORAL

Always, always deal with legal correspondence quickly – for if this can happen to the prime minister, it can happen to you.

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ADDENDUM – 13th May 2021

A report in the Daily Mail now provides detail on the claim – the piece is written by an experienced legal/courts reporter.

It appears that the claim is not for a debt – even though it is for a specific amount.

If the claim was brought on the basis and in the way described, it is likely that the court will set aside the judgment and strike out the claim.

The only problem would be delay – and although anyone who has appeared before county court judges can imagine a judge refusing such an application – delay will probably not be fatal to Johnson’s application in the reported circumstances.

 

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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How proper funding and resourcing means fewer miscarriages of justice

25th April 2021

After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.

And often the miscarriage comes down to the evidence before the court.

In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.

The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.

(See my Horizon posts here and here.)

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In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.

And so the scales tip to one side.

To dislodge such (on the face of it) compelling evidence is a difficult task.

To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.

To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.

To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.

And the main safeguard, of course, is (or should be) the forensic process itself.

Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.

There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.

*

But.

Disclosure exercises are sometimes not easy – or cheap.

A properly resourced prosecution authority is not cheap.

Proper case preparation is not cheap.

And skilled in-court lawyering and cross-examination is not easy – or cheap.

For justice to be served, however, requires all of this is done well – which requires funding and other resources.

Else the court will be prone to placing the wrong weight on evidence before it.

Or as techies put it: Garbage In, Garbage Out.

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