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

21st August 2023

(Source)

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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.

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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.

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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.

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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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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

 

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

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There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

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To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

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A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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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.)

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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.

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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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Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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The value of X – making sense of a re-branding, from a lawyer’s perspective

Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

19th July 2023

A close reading of Twitter’s legal letter to Meta: a guided tour of a weak litigation letter

7th July 2023

This is a close reading and exposition of the letter sent on behalf of Twitter to Mark Zuckerberg, the chairman and chief executive officer of Meta.

The letter is dated 5 July 2023 and has been published at the Semafor news website.

For the reasons set out below, this letter reads to this English litigation lawyer as being weak. Perhaps that view is wrong, and that there is some super-duper legal-magic which an American lawyer can see in this letter and which this post cannot.

But unless there is something which this post is missing, this is about as weak a litigation letter as can be, without the letter saying nothing substantial at all.

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Please note that I am not an American lawyer, and so everything which now follows in this post should be read subject to this proviso.

In particular, I am an English lawyer (though trained at an American law firm in London) with twenty years of various experiences as a litigator, usually for potential defendants at early stages of disputes. This means I have read more litigation letters than is good for any human being.

Litigation letters really do comprise an odd and distinct genre of literature.

There is sometimes a lot going on – and sometimes a lot not going on – in a litigation letter.

You need to be able read what is there, and to work out what is not there.

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Let us begin with the first paragraph of the the letter sent on behalf of Twitter to Meta:

First you will see the strange “as successor in interest” formulation of who the letter is being sent on behalf of. This is because of this recent business news:

Nothing in this post rides on this strange formulation, but it is worth noticing in case X Corp ever needs to establish any legal rights to sue.

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What is more immediately interesting is the “Based on recent reports…”.

This is early warning sign of a weak letter.

The letter could say “we have direct evidence” or even “we have in our possession documentary proof which we attach”.

But the letter does not say either of these things.

Instead, the sender states that the evidence is only (news) reports.

The letter then connects these “recent reports” to “serious concerns”.

Again, this is mild.

There is no allegation of breach – just a statement of “serious concerns”.

A strong letter would begin with something like “we have in possession direct evidence [or proof] that [you are in breach of the following legal obligations]”.

But this letter backtracks straightaway from any such a robust position.

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The first paragraph then seems to become aggressive: “systemic, wilful, and unlawful misappropriation”.

To an unexperienced eye this looks striking – and it is intended to look striking.

But such strident words have already been weakened by the framing.

Compare and contrast:

“we have in possession direct evidence that you are engaged in systemic, wilful, and unlawful misappropriation in breach of your legal obligations”

with

“based on reports we have concerns that you are engaged in systemic, wilful, and unlawful misappropriation”.

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From this very first paragraph this does not look like a serious letter.

If the author of the letter could have put the allegations more highly then they would have done, but they did not.

And this is no doubt because they could not.

As a genre of literature litigation letters are often far more significant for what is not said than for what is said.

(This is perhaps the only thing litigation letters have in common with the prose of Jane Austen.)

A non-litigator may read such an opening as in this Twitter letter and be worried at what is said; but an experienced litigator will read that paragraph and will spot what is not said.

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Now the second paragraph:

We know from the first paragraph that the allegation made in the second half of this paragraph is based on reports rather than on any other evidence and so this paragraph has to be read with this in mind.

As such the allegation is nothing more than a supposition.

The language “deliberately assigned…specific intent…in violation of…” again looks forceful, but is based only on (news) reports. No evidence is offered, let alone any proof.

(And in any case Meta denies any Threads engineers are former employees of Twitter.)

There are also no specifics in this paragraph – no particularisation at all.

There is instead the vaguest possible reference to“trade secrets and other intellectual property”.

Patents? Copyright? Trademarks?

Who knows?

Perhaps nobody knows.

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The third paragraph goes over the page:

Here we have“highly confidential information” now thrown in as well, but again without specifics or particularisation.

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Then there is the deft but weak “intends to strictly enforce”.

This is not even a clear and present threat to sue.

It is at best a threat to possibly sue in the future, maybe.

The “reserves all rights” is also a weak sign.

The relevant rights of Twitter will presumably exist regardless of any formal statement of reservation.

If Twitter is able to obtain civil remedies and an injunction without notice then it does not need to tell Meta that it is formally reserving its rights. Such words are ornaments not instruments.

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And now look at what is not here: there is no deadline.

There is no ultimatum.

There is no “unless [x] by [y date] then we are instructed to do [z]”.

Nothing.

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Now onto the fourth and penultimate paragraph:

This is framed as a warning.

But it is a warning that does not substantiate anything so far in the letter.

In essence, Meta is merely being told to conduct itself lawfully.

There is no evidence, still less proof, that Meta is doing any of the things mentioned unlawfully – just a bare accusation.

And again, as in the previous paragraph, there is no deadline or ultimatum for Meta to say it will comply with this demand.

There are no requests for undertakings.

Twitter also “reserves all rights” – but nothing in this paragraph sets out how those rights are going to be enforced.

This penultimate paragraph is thereby again just decoration.

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And now the final paragraph:

At last there is some substance to the letter, but not much.

In English civil litigation there is an obligation on potential parties to a possible dispute to retain relevant evidence if they are aware that litigation is contemplated. I suspect there is a similar obligation in American civil litigation.

But in England sending a letter only to put a party on notice to retain documents for possible litigation is about level one on the litigation Richter scale.

It is the least possible substantial reason to send any litigation letter.

Such notice can make a legal difference in that Meta cannot now deny it is aware that litigation is contemplated.

This demand at least looks as if a litigation letter is doing something: that the letter is justified in its existence.

But this is a weak final paragraph to a litigation letter.

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Taken in its entirety the letter is a bundle of suppositions, bare accusations, and reservations of (already existing) rights, with a small blow of the litigation trumpet with a notice to retain documents provision in the last paragraph.

No evidence is provided or even mentioned, let alone proof; there are no specifics or particularisations; no precise laws are cited; and there are no deadlines or ultimatums; and no demands for undertakings.

The letter does not even ask for a response – such as an undertaking or confirmation.

(And one thing a wise litigator does with a weak letter is not to ask for a response, as it looks yet weaker when no response will be coming.)

Overall, this is the weakest possible letter that could have been sent on behalf of Twitter to Meta – that is other than the letter having no substance at all.

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Litigation letters have many (potential) audiences.

The best ones are written with the court in mind: how would this letter look to a judge? Those letters are the scary ones – and paradoxically the letters which are most likely to mean a case is resolved before court.

(The best way to avoid going to court in civil litigation is to prepare for court.)

Good litigation letters will also force the other side and their lawyers to think about their legal position afresh.

And then…

…there are letters which are the consumption of the client and/or the media.

Some clients sometimes demand that such a litigation letter is sent even when there is little or no case, and this is the sort of letter that gets sent in those circumstances.

The audience for this sort of letter is not the other side, still less the court, but the client itself – and perhaps the public and media.

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Perhaps evidence will come to light of wrongdoing by Meta.

Nothing in this post – a disclaimer! – should be taken to mean that there is no possible legal case that X Corp can bring to enforce its rights against Meta.

But any such claim would require a very different letter to this one.

And that would need a very different letter – with evidence and specifics and particulars and deadlines and ultimatums. The sort of letter which this letter is not.

And if such a serious letter is sent (and published) then we will know that a serious legal situation is afoot.

But, for the reasons set out above, and from the perspective of an English litigation lawyer, this is not a serious letter.

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Threads – remembering an influential moment in that 1984 film

6 July 2023

Threads is the the social media platform of the day.

(My Threads account is here – and the early impressions are positive, though further functionality needs to be added, but it is a marked improvement on the Hell-site that Twitter has become.)

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But for those of us of a certain age and from a certain place Threads has another meaning:

The film had an immense influence on me when showed at school, though not one which seems to be shared by others.

My school was a south Birmingham 1980s comprehensive, and the well-meaning, earnest progressive teachers no doubt intended that the film would make us think about the issues of nuclear war.

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As it happened, the depicted post-war apocalypse was nothing compared to the sort of things I was reading about anyway (though I am sure I really shouldn’t have been doing), and so almost all the film left me unfazed.

But.

There was one moment which stuck with me, with force, and it has shaped my political and legal thinking ever since (to the extent that my political and legal ponderings warrants being called “thinking”).

By way of background, part of the film is about some people in a bunker who were in charge – or at least regarded themselves as in charge.

All the bunker scenes have been collected here:

And in that bunker they had telephones.

Proper, bulky desk telephones, not what we have now.

And via those telephones the important people in the bunker requested things and gave orders.

That was how those in control were to keep in control – telephony was the means of transmission and obtaining intelligence.

Telephony was the – ahem – thread that kept those who governed in charge of those who were governed.

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*Spoiler Warning*

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Those in the bunker die, pretty much unnoticed by the survivors of the nuclear strike.

Eventually some come to dig them out.

And there is this moment as the torch light goes around the bunker.

Corpses, and dust, and broken things.

And also a redundant telephone:

For some reason the sight of that redundant telephone stuck with me more than any of the special effects or make-up and horrific images and awful sounds.

I could not stop thinking about it.

What happens when those who are supposedly in charge no longer have the means of being in charge?

For in any large human grouping those in charge cannot do it by personal, face-to-face dominance alone, there needs to be methods of communication and means of control.

And those methods and means are precarious, and so they cannot be taken for granted either by those who govern or by those who are governed.

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About this time in the mid-1980s I also became fixated by this image in a book I had about kings and queens, which I have featured a few times in my blogging:

The combination of the Threads telephone and this Thackeray picture led me to a lifelong preoccupation about constitutions and language and images and law – about how one small group of people in one place actually get to exert day-to-day power over people in other places.

How does this actually, practically work?

And so I ended up as a lawyer and commentator.

Of course, those with power can always resort to coercion and lethal force – but short of this last resort, there are norms and systems and lore and laws which provide how we govern and are are governed.

So how are these threads crafted and put in place, and how are they maintained and repaired?

And these systems and methods of communication and means of control can sometimes just go: whether by technical failures, or even by the loss of legitimacy and authority.

The threads can snap – or they can be cut.

And then what happens?

Well.

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Thank you for indulging me and letting me share my Threads anecdote. As today is Threads day, one way or another, I thought this would be the best time to tell it.

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A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

3rd July 2023

Over on Twitter, the estimable Dr Cath Haddon is live-tweeting a talk from a former cabinet minister to the Institute of Government:

Here is an idea for a Prime Minister to have something to help him or her keep on top of what is going on in government and to push priorities.

The Prime Minister should form a committee of, say, about twenty-two individuals, each responsible for a specific government department or public function.

Those on this committee should report directly to the Prime Minister.

And the Prime Minister should be able to appoint and replace members of this committee as he or she chooses.

This committee should meet at least a couple of times a week – and this meeting should be at Downing Street chaired by the Prime Minister.

There can also be sub-committees dealing with matters where more than one government department is concerned – and these sub-committees can also be chaired by the Prime Minister or their designate.

So as to ensure that priorities are pushed – and as politics should be the language of priorities as one politician once said – these appointees should be politicians not officials.

And appointing members of parliament to this committee would also mean that the Prime Minister would have a useful direct line to what is said about the departments in parliament.

Meetings of this committee should also be attended by the head of the civil service, so that he or she can be part of the discussions and to provide advice and practical insight.

The deliberations should be confidential so that discussions can be frank and not leaked.

And there should be collective responsibility for those on the committee, so that there is a single overall direction to the course of the government.

Those on this committee should also be paid a substantial amount in addition to their parliamentary salary so as to recognise the additional work and to attract the brightest and best.

Such a model would, at a stroke, keep a Prime Minister on top of what is going on in government and for priorities to be pushed across government.

And this is the important thing…

…if a Prime Minister cannot effectively use such a committee to keep on top of what is going on in government and to push priorities, then no “Prime Minister’s Department” is going to be of any greater help.

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The only thing left is what to call this committee.

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Pic source.

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Comments Policy

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