To some extent, then, Shabana Mahmood was correct when in her statement to the House of Commons yesterday she described the findings of the Southport Inquiry’s Phase 1 report as “not surprising”, noting that “findings like these have been heard in inquests and inquiries before”. The report certainly makes plenty of recommendations of “training” for the various “agencies” concerned — police, NHS, Lancashire County Council and its many emanations. Quite sensibly, no doubt. But there can also be heard in Sir Adrian Fulford’s report some bolder, unexpected notes, the beginnings of a tune, perhaps, that many are starting to hum, though not yet in great numbers at the heart of today’s Establishment. 

In the opening pages, Sir Adrian describes as “a fundamental failure” the fact that the relevant public-sector agencies were guilty of “an enduring focus… on the potential risk of harm to [Axel Rudakubana] as opposed to the risks that he posed to others”. More important than that, he argues that the “merry-go-round of referrals, assessments, case-closures and ‘hand-offs’” among these agencies “has to end”.

The report’s principal concern is the risk to the public, and how that risk was wrongly assessed, communicated, and responded to. But there is another risk at play here: the risk to the individual state employee who steps up to take responsibility for someone like Rudakubana. When something as terrible as the murder of innocent children occurs, no one wants to be in that position. And one way of avoiding that — of everyone avoiding it together — is precisely the referral merry-go-round the report decries: if you wanted to design a system for avoiding responsibility in these circumstances, or at least spreading it so thinly as to make no difference, you could hardly do better than the status quo. 

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By Simon Ruda

But how to change this culture? “Training” isn’t going to do it. And before condemning these people too harshly, consider their powers. Faced with someone as obviously dangerous as Rudakubana — bringing knives to school and announcing his intention to kill, then returning after exclusion to attack a random pupil with a hockey stick — you too might not want to accept responsibility if all you are able to offer is the provision of “support” at a “hub”. That is especially when it is all contingent on Rudakubana actually turning up or answering your phone calls. On one view, you cannot expect someone to take responsibility for a dangerous problem unless they have the means to properly deal with it. Which is why the police are in a different, and perhaps more blameworthy, position. 

When Rudakubana went missing from home and officers found him on a bus with a knife, he said he wanted to stab someone and admitted to thoughts of using poison. But the police pondered his “neurodiverse condition” — autism — and “didn’t think custody would be appropriate”. They, in Sir Adrian’s words, “in effect treated [his autism diagnosis] as a defense to the criminal offense of possession of an offensive weapon”. If he had been arrested, as the report concludes he should have been, “his home would have been searched, leading to police and other agencies gaining critical information about the ricin seeds he had bought, and the terrorist training manual he had downloaded.” Which, in turn, would — or at least should — have led to a substantial period of incarceration: and no murders. 

The report elaborates on the point: “Far from recognizing that [he] was responsible for his own actions, and that his ASD (Autism Spectrum Disorder) meant (in his individual case) that he posed an increased risk of harm to others, agencies regularly used his autism as an explanation or even excuse for his conduct, including his violence. This was both unacceptable and superficial.” As with the condemnation of the public sector “merry-go-round”, this unapologetic rejection of the maximally “#bekind” position strikes me as noteworthy. At least, it is more no-nonsense than we might expect from a 21st-century inquiry chair.

And then there’s the analysis of the parents’ shortcomings. While acknowledging the significant difficulties they faced with their younger son, Sir Adrian also variously describes them as obstructive, manipulative and harmful; they failed to “set boundaries and to enforce expectations”; if they “had done what they morally ought to have done”, the attack would not have occurred. The 2016 version of this, I suggest, would have read somewhat differently. It’s subtle, but the emphasis on parents’ moral obligations, separate from the legal framework, and on the need to “enforce” their expectations, again gives a slightly more prescriptive tone than we have become used to — even in a report of this gravity.

Most startling of all — albeit of lesser significance in the chain of causation, and not in the report’s five “fundamental problems” — is the discussion of how an implied and unfounded accusation of racism led to the watering down of Rudakubana’s EHCP (Education, Health and Care Plan). This is a legally binding document that sets out a Local Authority’s obligations, and specifies the special educational provision required to safely and effectively meet a pupil’s needs. In 2021, Rudakubana’s EHCP was reviewed. Deputy headteacher Joanne Hodson — who Sir Adrian emphatically calls a “highly impressive witness” — wanted to include a section detailing the risks Rudakubana posed to others. But Samantha Steed, from Child and Adolescent Mental Health Services, wished it removed. 

In Hodson’s words “[she] even went so far as to accuse me of racially stereotyping [him] as ‘a black boy with a knife’”. There had been no mention of his skin color until that point. But the implied accusation had its effect. As Hodson put it in evidence, “that effectively shut me up … that was the point at which I – that professionally just closes me down completely, doesn’t it?” As a result, the document was toned down. 

Sir Adrian describes Steed’s decision to “raise issues of racial stereotyping” as “unwise”. If that is an understatement, he no doubt had in mind his finding that nobody had acted in bad faith — so there was no need to pitch the criticism too high. But it nevertheless feels like a notable shift in the direction of the wind. How many such remarks — implied and unjustified assertions of racial prejudice — are made in professional settings each day in Britain? Hundreds? Thousands? Perhaps now there will be fewer. Perhaps the move will no longer be seen as entirely risk-free.  

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Britain’s free speech shame

By Adam King

The report also, unsurprisingly, contains recommendations around online harms. And while these all relate to children, Labour will no doubt try to use them to justify their program of restriction and censorship more generally. 

Yet if this report will not please everyone, there is a new strand in there, powerfully expressed, that says we cannot carry on like this. Comforting delusions of one sort or another, and an insistence that in a society as wealthy as ours there need be no trade-offs, have been central to the state’s governing philosophy for decades. This report, in its clear-eyed analysis of cause and effect, as well as in its diction, seems to take a step back, or rather forward. 

No more public-sector evasion of responsibility; no more supine inaction around “neurodivergence” or mental health issues; no more baseless implications of racism; no more imbalance of attention and resources in favor of the potential wrongdoer over the potential innocent victim. Through it all, teenagers must be held responsible for their actions — and their parents too. This may have all come from a retired and highly respected senior judge, formerly of Michael Mansfield KC’s “radical” Tooks Chambers. But if you were to adorn it with a “sodding”, a “bloody”, and an “I don’t care” or two, it could quite easily serve as a tweet from Rupert Lowe. One way or the other, it feels like progress.

In February, in response to Vice-President Vance’s criticism of the British State’s suppression of free speech, Sir Keir managed to get his bit out: “We’ve had free speech for a very, very long time in the United Kingdom, and it will last for a very, very long time […] I’m very proud of our history there.” Is he very though?

Is it pride he feels when he looks at the history of the Paul Chambers case, for instance, when the CPS, under his leadership as Director of Public Prosecutions, pursued a young man through the Magistrates, Crown, and High Courts, for a harmless piece of flippancy, an obvious joke about blowing up an airport, which none of the relevant authorities took seriously? If there’s any truth to the Guardian’s report of his personal intervention to continue fighting Chambers’s appeal “to save face” (and it is inconceivable he wasn’t aware of the matter) then he must have had in mind a different pride, and a different history.

But his answer flew well enough, and the discussion moved on. A few months later, in Scotland, the question was again raised in front of the US President. Dusting his cuff and pulling a grin as if in dad-like apology for an overused joke, he parried with, “We’ve had free speech for a very, very long time here, so we’re very proud about that and we’ll be protecting it,” before being interrupted. Indoors later that day, he again stuck to the script — “Free speech in this country has been [sic] for a very long time, and we’re very very proud of it, we will protect it forever.”

The fourth outing of the very-very-long-time-very-very-proud defense came at Chequers the other week. “It’s one of the founding values of the United Kingdom, and we protect it jealously and fiercely, and always will, and we will bear down on any limits on free speech,” he began. And to conclude, “We have had free speech in this country for a very long time and we will always protect it.” But sandwiched between these two pieces of now familiar pabulum was something with a new flavor: “I draw a limit between free speech and the speech of those that want to peddle paedophilia and suicide social media to children.” The Paedo Pivot. They should teach it at Bar school.

Over the two months since Trump’s Scottish visit, something in the order of 2,000 people were arrested in the UK for online communications offenses, including, most publicly, Graham Linehan. In an attempt to deflect the backlash from the comedian’s detention, the PM said the police should “focus on the most serious issues”, while the Met Commissioner Sir Mark Rowley put out a statement asserting that it’s not the police’s fault as they have no choice but to investigate reported hate crimes, and the law needs to be changed.

Clearly, then, there is defensive anxiety among the new Establishment about restrictions on Free Speech in the UK. But whose fault is it, and what can be done?

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The flaws in the Lucy Letby case

By Adam King

My own experience of the senior ranks of the police, which comes mainly from defending officers in their disciplinary tribunals, often for speech transgressions of one kind or another, is that the Force has been more thoroughly captured by extreme progressive zealotry than any comparable institution. For evidence, peruse almost any of the College of Policing’s recent output.

The Hate Crime Operational Guidance is, as you might imagine, representative. Turgid and internally inconsistent, it contains countless encouragements to go in hard on the likes of Linehan: “Positive action should be taken,” “Hate crimes should be treated as priority incidents,” “There are occasions where an immediate response by a police officer may not be appropriate or possible… Where such delays occur, a supervisor should consider the reasons given and set out a clear plan for how and when the incident will be responded to.” At the same time, a light dusting of uninformative references to “proportionality” provides plausible deniability.

But the only important message — that officers have wide discretion and must use their common sense — is buried among little nudges as to how that discretion should be exercised: “Where the evidence justifies it, taking positive action is preferable, but the decision to arrest is always a matter for officers, and should be based on the evidence available at the time.” Taking all this stuff together, the thrust of the guidance is clear: if a member of a protected group alleges hate crime, and you don’t get stuck in immediately, you’ll have to answer for it.

So Commissioner Rowley is right to say the Guidance could usefully be amended, but he’s wrong to imply that officers have no choice but to investigate. When an allegation contains no crime, as in the recent Linehan arrest, or when it does but the crime is trivial, the police need make no arrest. Indeed, generally they must make no arrest, because for an arrest to be lawful it has to be “necessary” — a law the police routinely ignore. Most victims of unnecessary arrests don’t have the money to sue. Linehan, funded by the Free Speech Union, is an exception.

But the UK’s status as global number-one free-speech laughing stock does not rest solely, or even mainly, on the volume of arrests, but rather on the substantial sentences of imprisonment that can follow these arrests — of which my former client Lucy Connolly’s is perhaps the best-known example. Although I write this with her knowledge and consent, my role as her advocate is over. How, then, did she end up spending over a year in prison, for posting and then deleting after less than four hours, “Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you’re at it, take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist, so be it.”

The simplest answer, as her less forgiving critics would have it, is that she pleaded guilty to Stirring Up Racial Hatred, and accepted the Crown’s case that she was guilty of both the more serious version of the offense — s.19(1)(b) intention to stir up — and the highest categorization on the sentencing guidelines — intention to incite serious violence. That gave a starting point of three years’ imprisonment before the reduction for a guilty plea. And then the Court of Appeal rejected her claim not to have properly understood what she put her signature to when accepting an intention to incite serious violence. So what, really, is the problem?

Well, even if she had understood that she was signing up to be sentenced for an intention to incite serious violence (and I have no wish, and no need, to relitigate that here), her agreement would have been made in the same spirit as her admitted agreement to be sentenced on the basis of an intention to stir up racial hatred: namely, that she didn’t think she would win if she argued it in front of a judge, and she didn’t want to risk losing any of her guilty plea discount by trying.

To be clear, she said in the police interview that she “didn’t intend to cause hate or racial issues”, and despite waiving privilege in the Court of Appeal, there was no evidence of her ever having said to anyone that she had in fact had any criminal intention. Rather, her decision to accept the Crown’s allegation of intent was really a predictive judgment call, a guess at the inferences a judge would draw— and one about which both she, and the lawyer who was advising her at the time, may well have been right.

So, on one view, the problem isn’t so much the action of this particular court in this particular case — which was, after all, presented with an apparent acceptance to be sentenced on the Crown’s case with no argument about intention. But rather it is the broader political climate in which a defendant in Mrs Connolly’s position can make an accurate judgment, on accurate legal advice, that a judge will probably decide that her tweet demonstrated, to the criminal standard of “sure”, an intention to incite serious violence. For my own part, I just can’t see it.

Certainly, there were elements of the proceedings which, in my opinion, might have been different, and might then have made some difference. The Crown could have split the allegation into two counts to at least give her the option of putting to a jury, rather than a judge, the issue of whether she even intended to stir up racial hatred (let alone incite serious violence). And the decision to refuse her bail on 22 August 2024, two weeks after the riots had stopped, was, in my view, unjustifiable. Nevertheless, she might still have made the same decisions regarding her plea, and might still have been right to do so.

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The Right is coming for free speech

By Adam King

The trouble is, to the Progressive mind the success of multiculturalism isn’t just good, it’s the highest good, and its failure the worst ill. All decent people, therefore, will carefully avoid saying or doing anything that even might push things in the wrong direction. And so anyone who does take that risk is not a decent person, and can only really have been intending the bad outcome: if you don’t want the worst imaginable thing to happen, you don’t take the slightest chance of bringing it about. It’s only a short distance away from “silence is violence”: evil must be fought, not ignored, and certainly not diced with. This, in any event, seems to me the most likely chain of reasoning, unconscious or otherwise, of those that believe Lucy Connolly deserved her 31-month sentence.

But it’s not generally fair, nor conducive to the aim of restoring free speech in the UK, to simply blame the judges. Of course the judiciary is more Left-wing than the national average. Even Tony Blair thought so. But it’s the same in all professions. They’re Gen-X-ers and young boomers who attended top universities in the late 20th century. It would be astonishing if it were otherwise. But on the criminal side at least (I make no comment about immigration tribunals), they tend not to be activists. Most of their work has no political valence to it, and the culture in their corridors, so far as I’m familiar with it, is to try very hard to be boringly fair. They don’t always succeed, but politics basically isn’t their game.

It would be nice if the judiciary were more politically representative of the people they serve, if only for optics’ sake. But if your free speech laws cannot withstand a wave of Left-wingers on the bench, then those laws aren’t up to much.

So if the law isn’t currently up to it, how should it be changed? First, section 127 Communications Act 2003, which criminalizes “grossly offensive” messages sent privately even where the recipient is unbothered, delighted or amused, must be repealed: we should be free to send electronically anything we are permitted to say in person. This outdated offense, with its absurd privileging of “a public electronic communications network”, has no place in modern society.

Secondly, Stirring Up Racial Hatred needs a refresh. As another former client Jamie Michael discovered to his detriment, all that’s required — at least for an arrest and prosecution, although not in his case a conviction — is a spirited objection to illegal immigration with a couple of borderline-insulting words thrown in. The 1976 expansion of the offense, to include words that are merely “likely” to stir up racial hatred, now has too great a chilling effect. After all, there arguably is a good chance that some racist somewhere might see your punchy anti-immigration post and feel inspired to a shade more hatred than they were feeling already. And that is now enough for the police to put your door in.

Whereas common sense and proportionality were once inherent features of the system at every level – before the communality of the rules of political engagement, including the conventions around free speech, had been fractured — now they might be absent until — as in Jamie’s case — they are effortfully injected by legal argument in the Crown Court about the jurisprudence on the right to freedom of expression. Safer, then, to just keep your mouth shut on the most significant political issue of our age.

The curious fact that both sides in the culture war offer the same answer about where “the line” should be drawn — speech that incites real-world violence — shows that it is no answer at all. Causation is a quicksilver concept, which lawyers, like philosophers, struggle to delineate. Are you morally responsible, and should you be held criminally liable, for a bad outcome if you can foresee that your words could make that outcome more likely?

If the outcome is bad enough — like terrorism — the answer is sometimes yes. That is why, in those rare cases, we criminalize the mere expression of support. The modern State, though, now seems to be taking a de facto similar attitude to expressions of political opinion that have the potential to influence others in a way that threatens the wellbeing of its sacred cows. But that is not terrorism, and should not be illegal.

Obviously, the less racial hatred there is, the better. The law can, and does, seek to reduce it. But to try to silence millions of citizens who want to share their views on immigration, despite in some cases lacking the verbal dexterity required to avoid rude words and other tripwires, is a terrible own goal.

Starmer reminded us, in his conference speech this week, of the mid-century roots of his socialist convictions: his father’s frustration that the nation did not respect him because he worked with his hands. But the frustrations of the modern working class, certainly on immigration, seem to be of less concern – acknowledged, now and then, but always with a disapproving caveat: “This party is proud of our flags, yet if they are painted alongside graffiti telling a Chinese takeaway owner to ‘go home’…”

Suppressed views, like suppressed emotions, tend to erupt with great force. If disputes over our nation’s future are to be conducted peacefully through debate and not violently on the streets, speech must be free. And if Keir Starmer wants that to last a very, very long time, as he claims, he must act now, and make us all very, very proud.

The defendant, picked up in a routine traffic stop, denied being the man who’d carried out an inside-job fraud at the shop where he’d worked some years earlier. His name, ID and credit cards matched, and apart from a little weight gain and a new hairdo, he looked exactly like the two available photos of the criminal. A defence “facial mapping” expert pointed out several differences, but our own expert explained them away and supported the identification. Forceful cross-examination of the defence expert led him to concede that he might be wrong. But a last-minute double-check by the police unearthed — finally — one of the fraudster’s former colleagues. His probity beyond question, he was brought to court to say whether he recognised the man in the dock. A guileless “no”, followed by an unfakeably perplexed chuckle when it was suggested it might be the man he used to work with, confirmed the defendant’s innocence. (The two might well have been cousins sharing an identity, but that’s another story.)

It immediately became blindingly obvious to me that the photos of the two men were not the same person at all. You could tell at a glance! But when you are given a theory, and you run with it, it takes something big to bring about that paradigm shift.

In the case of the nurse Lucy Letby, a theory that she was a murderer was alighted upon by one of the ward’s consultant paediatricians very early on — after only a very few of the unexplained deaths or collapses that ended up on her indictment — and the theory was based almost entirely on her having been on shift at the relevant times. There can be little doubt that there was not, at that stage, enough evidence for murder to be anything other than a remote possibility. So either it was a very lucky guess, or this theory was later taken up by others in a way that led to inaccurate expert medical opinion, the misleading presentation of evidence, and a terrible miscarriage of justice.

Following her conviction in August 2023, for murdering seven babies and trying to kill six others, a 13,000-word piece in The New Yorker told a compelling story of her likely innocence. More recently, and once the reporting restrictions were lifted after her conviction in early July in a retrial for the attempted murder of one of the babies on which the jury could not agree, long pro-defence pieces have appeared in The Guardian, Telegraph, Independent and Private Eye. Also recently published — withheld pending the outcome of the retrial — is the written judgement of the Court of Appeal, who refused her application for leave to appeal.

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An appeal first goes to a single judge, who makes a decision on the papers whether to let you argue it at a hearing. In Letby’s case, that judge was Sir Robin Spencer, who turned her application down. Coincidentally — or perhaps not — Spencer was the barrister who led the prosecution of Sally Clark in 1999, who was wrongly convicted of killing two of her young children. That notorious miscarriage of justice, as well as others from the same era, such as Angela Cannings and Donna Anthony, was based on flawed statistical evidence about cot death from the since-discredited and disgraced paediatrician Sir Roy Meadow.

“Unknown unknowns” back then included the possibility of a genetic factor that could explain multiple cot deaths in the same family. It was nearly 20 years before a good candidate was discovered. A growing collection of lawyers, doctors and statisticians believe that something similar — flawed statistics and paediatric misdiagnosis without due respect for unknown unknowns — may have occurred in Letby’s case.

If the first Court of Appeal judge turns you down, you can try again at an oral hearing in front of three others. Letby was again unsuccessful. Their written judgement is long, detailed and illuminating. But it will not, I suspect, relieve much anxiety about a possible miscarriage of justice.

The main issue in the original trial, and indeed the retrial, was whether the deaths and other “events” were deliberately caused. Letby’s biggest problem here was the two allegations of attempted murder by insulin — Babies F and L, committed some eight months apart. Blood test results showed high insulin accompanied by low levels of a chemical called c-peptide. When the pancreas produces insulin, it produces similar levels of c-peptide. Therefore, the Crown said, the insulin was not produced in the body. It was, in other words, artificial. Therefore, it was an attempt to kill.

The inference to foul play with these two babies is arguably much stronger than it is with the more numerous diagnoses of air embolism, which was a more subjective opinion, more dependent on the statistically questionable “shift-pattern” evidence. The two guilty verdicts on the insulin counts were the first the jury returned — the next not coming for three days — and were two of only three unanimous convictions in the trial.

The Court of Appeal records that “the integrity of the blood samples and reliability of the biochemical testing was challenged by [defence KC] Mr Myers. However, in her evidence at trial, the applicant admitted that both babies had been poisoned by insulin, but denied that she was the poisoner.” The Crown made much of this “admission”, but the point is seriously unfair.

Letby was being pushed quite hard to swallow an inference which she was in no position to accept or deny. Her evidence was that she did not poison them — simple as that. So her opinion of the validity of the blood samples and the inferences to be drawn from them is neither here nor there.

This is a common practice by prosecutors, easy to lapse into in the heat of the moment. I’ve done it myself. “So it’s all just a big coincidence is it? Or have these two complainants put their heads together?” — that sort of thing. You’re trying to make a little speech and put the defendant on the back foot, in the course of questioning them about matters within their knowledge — which is what you should confine yourself to. But a defendant’s answers to such questions are not a sound basis for treating a prosecution inference as agreed by the defence. If the reliability of a blood sample is not agreed, or an inference not accepted, there the matter should rest. Her barrister explicitly did not concede the accuracy of the results in his speech to the jury, much less the inferences to be drawn.

And it seems there may be good reason not to accept their validity. The Guardian has reported serious concerns about the results from senior experts in the field. The Telegraph quotes guidance from the relevant lab saying that its tests are “not suitable” where the introduction of artificial insulin is suspected. And The New Yorker piece quotes the Crown’s expert as saying that there was a third insulin case, with similar blood results, not attributed to Letby. The samples cannot be tested again as they were destroyed soon after they were taken — because the babies’ blood sugar levels recovered and there was no suspicion of wrongdoing at the time.

But even without these post-conviction queries, if this were the only evidence, and these the only allegations, I would hope no jury would convict a nurse for attempted murder on that basis. The timing and detail of the insulin results meant that the Crown had to say that not only must Letby have poisoned the feeding bags she herself put up, but also must have poisoned one or more other bags in the store cupboard so that they would unwittingly be administered by other nurses after she had left. (The bags themselves, of course, are long gone.) Would you feel sure a random nurse tried to kill two babies eight months apart, or would you think this might be an instance of why the lab says its tests are “not suitable” for proving the presence of artificial insulin? But of course, this was not the only evidence against her.

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There are also Letby’s online searches for bereaved families, and the collection of medical notes found at her home relating to some of the events she was charged with. Neither of these, I feel, are anything like as bad as they look: they both stand against a background of a much larger number of non-suspicious searches and medical notes.

But for many observers, and perhaps for the jury, the “confession” note is persuasive. For criminal lawyers, less so. That’s because false confessions are surprisingly common. So much so, that a law was enacted to prohibit a confession being given in evidence unless the prosecution can prove beyond reasonable doubt that it was not obtained by oppression or as a result of anything “said or done” that was likely to render a confession unreliable.

How could any nurse subjected to a long investigation into whether they have been murdering babies find the process anything but oppressive? If the case against her can be proved beyond reasonable doubt, one might think it could — and even should — be proved without the mixed inculpatory-exculpatory scrawls of a woman on the brink.

Almost all of the rest of the convictions — that is, all seven murders and three of the alleged attempts — involved the deliberate injection of air, leading to air embolism. One ground of Letby’s appeal impugned the prosecution experts’ diagnosis-by-exclusion — i.e. “we don’t know what else it could be, so it is likely to be air embolism” — as well as their diagnosis on the basis of various kinds of unusual skin discolouration that were observed. The 1989 research paper relied on by the Crown’s experts, Pulmonary Vascular Air Embolism in the Newborn, is very short, and says relatively little about skin discolouration other than that, in about 10% of the 50 or so cases they reviewed, “migrating pallor” in the skin was observed — which, it was not disputed, may be caused by other things.

The Court of Appeal was not impressed by this complaint, or by fresh evidence from the surviving author of the 1989 paper in which he criticised the use to which his research had been put in the Letby case. The experts were entitled to use skin discolouration as supportive of the diagnosis, the court said, as being “consistent with” embolism; the fresh evidence did not undermine that; and the lack of any other plausible explanation is significant.

“Consistent with” does a lot of heavy lifting for the Crown in criminal trials. A piece of evidence only helps to prove something if — and to the extent that — there is a difference between the probability of finding the evidence if the hypothesis (e.g. guilt, or air embolism) is true, and the probability of finding it if it is false. More precisely, it is the ratio between these two that determines the strength of the evidence in either direction. That, in a nutshell, is Bayes’s theorem. So, if you can say no more than that a piece of evidence is “consistent with” the hypothesis, but it is also “consistent with” its negation, and you can’t say how much more “consistent” it is with one rather than the other, then the evidence does not assist you either way. For example, if a prosecutor says “the fact you were wearing gloves makes you more likely to be guilty of this robbery”, that evidence is in fact worthless if it’s winter time and everyone is wearing gloves: wearing gloves is “consistent with” both guilt and innocence, to the same degree.

It seems, though, that the experts used skin discolouration as more than merely “consistent with” air embolism. They used it to prove, to some extent, that diagnosis. Which they are entitled to do, if it is a justifiable professional opinion, but it does point to a fundamental danger with expert evidence: the difficulty a jury has in getting behind the curtain and judging what weight to give it.

One way of achieving this is to look at whether the experts have been wrong before. In the case of the lead expert in Letby’s case, Dr Evans, the defence discovered halfway through the trial that he had been utterly excoriated in a ruling by a Court of Appeal judge in a different case. “No effort to provide a balanced opinion… No attempt made to engage with the powerful contradictory indicators… The report has the hallmarks of an exercise ‘working out an explanation’ that exculpates the applicants… tendentious and partisan expressions of opinion that are outside [his] professional competence.” That level of criticism from a senior judge is not made lightly: they know it can be career-ending. And if the Crown had known of it in advance, I suspect they would have looked for a different expert.

Now, this was on one view a gift to the defence: they could now undermine Dr Evans’s credibility by cross-examining him on it in front of the jury. True, his conclusions in the Letby trial were supported by other experts who had checked his work, but the defence argued that those experts were merely rubber-stamping his opinions. The jury may have had a difficult task in assessing what weight to give the criticisms of Evans’s previous work — one with somewhat binary options: disregard his evidence, or believe it. Ultimately, the Court of Appeal upheld the trial judge’s rejection of the defence’s application to exclude his evidence. It might not have been an easy decision for the trial judge, or the Court of Appeal, and although it may have been the correct decision, I cannot imagine any lawyer would claim the situation overall was entirely satisfactory.

Zooming out, the big question remains: without knowing of the police investigation and the suspicion of foul-play, and the fact that one nurse was on duty for many or all of the incidents under review, would any expert have diagnosed air embolism by the deliberate injection of air, in any of those cases? Certainly none of the pathologists did at the time.

In his recent Private Eye piece, Dr Phil Hammond gives a startling statistic: in a review of more than 1,000 cases of infant death in south-east London, “the cause of mortality was unexplained for about half of the newborns who had died unexpectedly, even after post-mortem examinations”.

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So, the shift-pattern evidence — i.e. the fact that Letby was on duty for so many unexplained deaths and collapses — does seem to have been central to the case against her. And statisticians are questioning its probative power. Even leaving aside the issue of deaths and other negative events that occurred when Letby was not on duty, coincidences of that scale occur — just as someone will win the lottery each week, at odds of 14 million to one.

Also very unusual is the fact that Dr Evans “pitched” his services to the police, when he heard about the investigation in the media. This is not the way experts are normally selected. The defence argued it indicated pro-prosecution bias. The Court of Appeal disagreed.

And then there’s the fact that in the last few weeks Dr Evans has commented publicly on the defence not calling their own expert, who was advising them throughout the trial. Indeed, that expert, Dr Hall, has himself gone on record saying that he “does not know” why he was not called. And the same question was posed by the Court of Appeal, somewhat pointedly: without having called their own expert, can the defence really complain if the jury agree with the Crown’s?

It’s an entirely valid question. But I would be slow to assume the worst. One reason the defence might have chosen not to call Dr Hall (and I am speculating here) is if they felt they had so thoroughly undermined Dr Evans that they were better off leaving it at that. That would be a big tactical call, but covering your own back is not always consistent with protecting your client’s interests.

So, for example: if your own expert would contradict much, but not all, of the Crown’s expert’s conclusions, and you believe the credibility of the Crown’s expert has been totally destroyed, you might judge it prudent not to put your own expert in the witness box. Avoiding the potential for future criticism and hindsight regret by putting your client in what you believe will be a worse position — by calling your own expert — is not a boss move. This is all speculation, but I guarantee that careful thought went into the decision not to call Dr Hall. None of this, though, would mean the conviction is safe.

There is evidence against Letby. And the fact that it’s “circumstantial” is not a valid criticism: circumstantial evidence can be, and often is, utterly overwhelming. But this is where comparison with the Sally Clark case really comes in. The famous statistical error in that trial was that the expert Professor Roy Meadow wrongly treated two putative cot deaths as probabilistically independent. But arguably the more important point is that while the probability of “coincidence” might indeed have been very low, so too is the probability of a mother murdering her children. In Letby’s case, the chance that a randomly selected nurse is a baby killer is vanishingly small. As Carl Sagan put it, paraphrasing the French mathematician Laplace, extraordinary claims require extraordinary evidence.

Defence lawyers often say to juries that their clients start off innocent: the fact that they are in the dock is no evidence at all. But this is not quite right. If the probability of guilt is zero, no amount of evidence — that is, no Bayesian likelihood ratios, no matter how high or how numerous — will alter that chance. Rather, a defendant’s prior probability of guilt — that is, before any evidence has been called — is just very, very small. But not all crimes are equally common. A randomly selected member of the public is much more likely to have stolen a bike — given the number of bikes that get stolen — than a randomly selected nurse is to be a serial killer of her patients. But there isn’t much room for these fundamental concepts to be explored and explained to a jury.

There has been some commentary to the effect that those protesting Letby’s innocence should pipe down, that they are behaving irresponsibly. But miscarriages of justice do occur, and the Court of Appeal sometimes gets things wrong.

The only route for Letby now would be a referral back to the Court of Appeal by the Criminal Cases Review Commission, which would require substantial new evidence of one sort or another. The process is not quick, and the Commission do not refer many cases. But I would not be surprised if one day it happens. I hope it does. If Letby has been wrongly convicted, it would be one of the worst miscarriages of justice we have ever seen. If she is guilty, well, true verdicts, like true scientific theories, are only strengthened by rigorous testing and challenge.

***

This article was first published on 24 July 2024.

The defendant, picked up in a routine traffic stop, denied being the man who’d carried out an inside-job fraud at the shop where he’d worked some years earlier. His name, ID and credit cards matched, and apart from a little weight gain and a new hairdo, he looked exactly like the two available photos of the criminal. A defence “facial mapping” expert pointed out several differences, but our own expert explained them away and supported the identification. Forceful cross-examination of the defence expert led him to concede that he might be wrong. But a last-minute double-check by the police unearthed — finally — one of the fraudster’s former colleagues. His probity beyond question, he was brought to court to say whether he recognised the man in the dock. A guileless “no”, followed by an unfakeably perplexed chuckle when it was suggested it might be the man he used to work with, confirmed the defendant’s innocence. (The two might well have been cousins sharing an identity, but that’s another story.)

It immediately became blindingly obvious to me that the photos of the two men were not the same person at all. You could tell at a glance! But when you are given a theory, and you run with it, it takes something big to bring about that paradigm shift.

In the case of the nurse Lucy Letby, a theory that she was a murderer was alighted upon by one of the ward’s consultant paediatricians very early on — after only a very few of the unexplained deaths or collapses that ended up on her indictment — and the theory was based almost entirely on her having been on shift at the relevant times. There can be little doubt that there was not, at that stage, enough evidence for murder to be anything other than a remote possibility. So either it was a very lucky guess, or this theory was later taken up by others in a way that led to inaccurate expert medical opinion, the misleading presentation of evidence, and a terrible miscarriage of justice.

Following her conviction last August, for murdering seven babies and trying to kill six others, a 13,000-word piece in The New Yorker told a compelling story of her likely innocence. More recently, and once the reporting restrictions were lifted after her conviction three weeks ago in a retrial for the attempted murder of one of the babies on which the jury could not agree, long pro-defence pieces have appeared in The Guardian, Telegraph, Independent and Private Eye. Also recently published — withheld pending the outcome of the retrial — is the written judgement of the Court of Appeal, who refused her application for leave to appeal.

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An appeal first goes to a single judge, who makes a decision on the papers whether to let you argue it at a hearing. In Letby’s case, that judge was Sir Robin Spencer, who turned her application down. Coincidentally — or perhaps not — Spencer was the barrister who led the prosecution of Sally Clark in 1999, who was wrongly convicted of killing two of her young children. That notorious miscarriage of justice, as well as others from the same era, such as Angela Cannings and Donna Anthony, was based on flawed statistical evidence about cot death from the since-discredited and disgraced paediatrician Sir Roy Meadow.

“Unknown unknowns” back then included the possibility of a genetic factor that could explain multiple cot deaths in the same family. It was nearly 20 years before a good candidate was discovered. A growing collection of lawyers, doctors and statisticians believe that something similar — flawed statistics and paediatric misdiagnosis without due respect for unknown unknowns — may have occurred in Letby’s case.

If the first Court of Appeal judge turns you down, you can try again at an oral hearing in front of three others. Letby was again unsuccessful. Their written judgement is long, detailed and illuminating. But it will not, I suspect, relieve much anxiety about a possible miscarriage of justice.

The main issue in the original trial, and indeed the retrial, was whether the deaths and other “events” were deliberately caused. Letby’s biggest problem here was the two allegations of attempted murder by insulin — Babies F and L, committed some eight months apart. Blood test results showed high insulin accompanied by low levels of a chemical called c-peptide. When the pancreas produces insulin, it produces similar levels of c-peptide. Therefore, the Crown said, the insulin was not produced in the body. It was, in other words, artificial. Therefore, it was an attempt to kill.

The inference to foul play with these two babies is arguably much stronger than it is with the more numerous diagnoses of air embolism, which was a more subjective opinion, more dependent on the statistically questionable “shift-pattern” evidence. The two guilty verdicts on the insulin counts were the first the jury returned — the next not coming for three days — and were two of only three unanimous convictions in the trial.

The Court of Appeal records that “the integrity of the blood samples and reliability of the biochemical testing was challenged by [defence KC] Mr Myers. However, in her evidence at trial, the applicant admitted that both babies had been poisoned by insulin, but denied that she was the poisoner.” The Crown made much of this “admission”, but the point is seriously unfair.

Letby was being pushed quite hard to swallow an inference which she was in no position to accept or deny. Her evidence was that she did not poison them — simple as that. So her opinion of the validity of the blood samples and the inferences to be drawn from them is neither here nor there.

This is a common practice by prosecutors, easy to lapse into in the heat of the moment. I’ve done it myself. “So it’s all just a big coincidence is it? Or have these two complainants put their heads together?” — that sort of thing. You’re trying to make a little speech and put the defendant on the back foot, in the course of questioning them about matters within their knowledge — which is what you should confine yourself to. But a defendant’s answers to such questions are not a sound basis for treating a prosecution inference as agreed by the defence. If the reliability of a blood sample is not agreed, or an inference not accepted, there the matter should rest. Her barrister explicitly did not concede the accuracy of the results in his speech to the jury, much less the inferences to be drawn.

And it seems there may be good reason not to accept their validity. The Guardian has reported serious concerns about the results from senior experts in the field. The Telegraph quotes guidance from the relevant lab saying that its tests are “not suitable” where the introduction of artificial insulin is suspected. And The New Yorker piece quotes the Crown’s expert as saying that there was a third insulin case, with similar blood results, not attributed to Letby. The samples cannot be tested again as they were destroyed soon after they were taken — because the babies’ blood sugar levels recovered and there was no suspicion of wrongdoing at the time.

But even without these post-conviction queries, if this were the only evidence, and these the only allegations, I would hope no jury would convict a nurse for attempted murder on that basis. The timing and detail of the insulin results meant that the Crown had to say that not only must Letby have poisoned the feeding bags she herself put up, but also must have poisoned one or more other bags in the store cupboard so that they would unwittingly be administered by other nurses after she had left. (The bags themselves, of course, are long gone.) Would you feel sure a random nurse tried to kill two babies eight months apart, or would you think this might be an instance of why the lab says its tests are “not suitable” for proving the presence of artificial insulin? But of course, this was not the only evidence against her.

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There are also Letby’s online searches for bereaved families, and the collection of medical notes found at her home relating to some of the events she was charged with. Neither of these, I feel, are anything like as bad as they look: they both stand against a background of a much larger number of non-suspicious searches and medical notes.

But for many observers, and perhaps for the jury, the “confession” note is persuasive. For criminal lawyers, less so. That’s because false confessions are surprisingly common. So much so, that a law was enacted to prohibit a confession being given in evidence unless the prosecution can prove beyond reasonable doubt that it was not obtained by oppression or as a result of anything “said or done” that was likely to render a confession unreliable.

How could any nurse subjected to a long investigation into whether they have been murdering babies find the process anything but oppressive? If the case against her can be proved beyond reasonable doubt, one might think it could — and even should — be proved without the mixed inculpatory-exculpatory scrawls of a woman on the brink.

Almost all of the rest of the convictions — that is, all seven murders and three of the alleged attempts — involved the deliberate injection of air, leading to air embolism. One ground of Letby’s appeal impugned the prosecution experts’ diagnosis-by-exclusion — i.e. “we don’t know what else it could be, so it is likely to be air embolism” — as well as their diagnosis on the basis of various kinds of unusual skin discolouration that were observed. The 1989 research paper relied on by the Crown’s experts, Pulmonary Vascular Air Embolism in the Newborn, is very short, and says relatively little about skin discolouration other than that, in about 10% of the 50 or so cases they reviewed, “migrating pallor” in the skin was observed — which, it was not disputed, may be caused by other things.

The Court of Appeal was not impressed by this complaint, or by fresh evidence from the surviving author of the 1989 paper in which he criticised the use to which his research had been put in the Letby case. The experts were entitled to use skin discolouration as supportive of the diagnosis, the court said, as being “consistent with” embolism; the fresh evidence did not undermine that; and the lack of any other plausible explanation is significant.

“Consistent with” does a lot of heavy lifting for the Crown in criminal trials. A piece of evidence only helps to prove something if — and to the extent that — there is a difference between the probability of finding the evidence if the hypothesis (e.g. guilt, or air embolism) is true, and the probability of finding it if it is false. More precisely, it is the ratio between these two that determines the strength of the evidence in either direction. That, in a nutshell, is Bayes’s theorem. So, if you can say no more than that a piece of evidence is “consistent with” the hypothesis, but it is also “consistent with” its negation, and you can’t say how much more “consistent” it is with one rather than the other, then the evidence does not assist you either way. For example, if a prosecutor says “the fact you were wearing gloves makes you more likely to be guilty of this robbery”, that evidence is in fact worthless if it’s winter time and everyone is wearing gloves: wearing gloves is “consistent with” both guilt and innocence, to the same degree.

It seems, though, that the experts used skin discolouration as more than merely “consistent with” air embolism. They used it to prove, to some extent, that diagnosis. Which they are entitled to do, if it is a justifiable professional opinion, but it does point to a fundamental danger with expert evidence: the difficulty a jury has in getting behind the curtain and judging what weight to give it.

One way of achieving this is to look at whether the experts have been wrong before. In the case of the lead expert in Letby’s case, Dr Evans, the defence discovered halfway through the trial that he had been utterly excoriated in a ruling by a Court of Appeal judge in a different case. “No effort to provide a balanced opinion… No attempt made to engage with the powerful contradictory indicators… The report has the hallmarks of an exercise ‘working out an explanation’ that exculpates the applicants… tendentious and partisan expressions of opinion that are outside [his] professional competence.” That level of criticism from a senior judge is not made lightly: they know it can be career-ending. And if the Crown had known of it in advance, I suspect they would have looked for a different expert.

Now, this was on one view a gift to the defence: they could now undermine Dr Evans’s credibility by cross-examining him on it in front of the jury. True, his conclusions in the Letby trial were supported by other experts who had checked his work, but the defence argued that those experts were merely rubber-stamping his opinions. The jury may have had a difficult task in assessing what weight to give the criticisms of Evans’s previous work — one with somewhat binary options: disregard his evidence, or believe it. Ultimately, the Court of Appeal upheld the trial judge’s rejection of the defence’s application to exclude his evidence. It might not have been an easy decision for the trial judge, or the Court of Appeal, and although it may have been the correct decision, I cannot imagine any lawyer would claim the situation overall was entirely satisfactory.

Zooming out, the big question remains: without knowing of the police investigation and the suspicion of foul-play, and the fact that one nurse was on duty for many or all of the incidents under review, would any expert have diagnosed air embolism by the deliberate injection of air, in any of those cases? Certainly none of the pathologists did at the time.

In his recent Private Eye piece, Dr Phil Hammond gives a startling statistic: in a review of more than 1,000 cases of infant death in south-east London, “the cause of mortality was unexplained for about half of the newborns who had died unexpectedly, even after post-mortem examinations”.

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So, the shift-pattern evidence — i.e. the fact that Letby was on duty for so many unexplained deaths and collapses — does seem to have been central to the case against her. And statisticians are questioning its probative power. Even leaving aside the issue of deaths and other negative events that occurred when Letby was not on duty, coincidences of that scale occur — just as someone will win the lottery each week, at odds of 14 million to one.

Also very unusual is the fact that Dr Evans “pitched” his services to the police, when he heard about the investigation in the media. This is not the way experts are normally selected. The defence argued it indicated pro-prosecution bias. The Court of Appeal disagreed.

And then there’s the fact that in the last few weeks Dr Evans has commented publicly on the defence not calling their own expert, who was advising them throughout the trial. Indeed, that expert, Dr Hall, has himself gone on record saying that he “does not know” why he was not called. And the same question was posed by the Court of Appeal, somewhat pointedly: without having called their own expert, can the defence really complain if the jury agree with the Crown’s?

It’s an entirely valid question. But I would be slow to assume the worst. One reason the defence might have chosen not to call Dr Hall (and I am speculating here) is if they felt they had so thoroughly undermined Dr Evans that they were better off leaving it at that. That would be a big tactical call, but covering your own back is not always consistent with protecting your client’s interests.

So, for example: if your own expert would contradict much, but not all, of the Crown’s expert’s conclusions, and you believe the credibility of the Crown’s expert has been totally destroyed, you might judge it prudent not to put your own expert in the witness box. Avoiding the potential for future criticism and hindsight regret by putting your client in what you believe will be a worse position — by calling your own expert — is not a boss move. This is all speculation, but I guarantee that careful thought went into the decision not to call Dr Hall. None of this, though, would mean the conviction is safe.

There is evidence against Letby. And the fact that it’s “circumstantial” is not a valid criticism: circumstantial evidence can be, and often is, utterly overwhelming. But this is where comparison with the Sally Clark case really comes in. The famous statistical error in that trial was that the expert Professor Roy Meadow wrongly treated two putative cot deaths as probabilistically independent. But arguably the more important point is that while the probability of “coincidence” might indeed have been very low, so too is the probability of a mother murdering her children. In Letby’s case, the chance that a randomly selected nurse is a baby killer is vanishingly small. As Carl Sagan put it, paraphrasing the French mathematician Laplace, extraordinary claims require extraordinary evidence.

Defence lawyers often say to juries that their clients start off innocent: the fact that they are in the dock is no evidence at all. But this is not quite right. If the probability of guilt is zero, no amount of evidence — that is, no Bayesian likelihood ratios, no matter how high or how numerous — will alter that chance. Rather, a defendant’s prior probability of guilt — that is, before any evidence has been called — is just very, very small. But not all crimes are equally common. A randomly selected member of the public is much more likely to have stolen a bike — given the number of bikes that get stolen — than a randomly selected nurse is to be a serial killer of her patients. But there isn’t much room for these fundamental concepts to be explored and explained to a jury.

There has been some commentary to the effect that those protesting Letby’s innocence should pipe down, that they are behaving irresponsibly. But miscarriages of justice do occur, and the Court of Appeal sometimes gets things wrong.

The only route for Letby now would be a referral back to the Court of Appeal by the Criminal Cases Review Commission, which would require substantial new evidence of one sort or another. The process is not quick, and the Commission do not refer many cases. But I would not be surprised if one day it happens. I hope it does. If Letby has been wrongly convicted, it would be one of the worst miscarriages of justice we have ever seen. If she is guilty, well, true verdicts, like true scientific theories, are only strengthened by rigorous testing and challenge.

Maugham’s cases have occasionally succeeded. In 2019, he had a hand in the application that led to the Scottish Court’s ruling that Boris Johnson’s prorogation of parliament was unlawful. Unfortunately, two hours later, the High Court in London gave its reasons for having rebuffed Gina Miller’s plea for the same decision five days earlier. It rather overshadowed Maugham’s efforts, much to his irritation: “The decision of Scotland’s highest court made barely a ripple in the national press. The BBC made room for a single interview with me on its news channel.”

Nevertheless, his work here was arguably of public benefit. I have heard persuasive moral defences of Boris Johnson’s 2019 prorogation of Parliament, but most lawyers, even on the Right, saw it as a constitutional travesty, and one that could have set a dangerous precedent.

More often, though, the GLP loses, which costs them. Last year, they were ordered to pay more than £350,000 to the Government Legal Department to cover the expense of defending failed GLP claims. This sum was mainly crowdfunded from small donors. People are free to donate as they please, of course, but questions about transparency — a virtue vaunted by the GLP — continue to swirl. When the High Court rules that your claim “fails in its entirety”, and orders you to pay 80% of the other side’s costs, as they did to the Good Law Project in their Covid appointments action, is it really ethical to spin that outcome to donors as an unalloyed victory — as having won “at every substantive level”? Yes, all right, Maugham’s co-claimant got part of what he wanted (a limited “declaration”), but both of them failed to persuade the court of the headline allegation of “cronyism”. Never — ever — to be deterred, Maugham insists that this failure was only at “a deeply technical level”, now a droll euphemism for a forensic spanking.

Indeed, the judgment in that case could be seen as paving the way for tighter restrictions on who can bring a claim for Judicial Review, which is the GLP’s modus operandi. The requirement that a claimant has to have a “sufficient interest” in the impugned decision has long been interpreted generously, in favour of campaigning groups and the like. But Maugham’s scattergun shirtiness and unabashed politicising has severely tested that generosity. Lord Reed, now president of the Supreme Court, said in 2012 that “a distinction must be drawn between the mere busybody and the person affected by or having a reasonable concern in the matter”. Thanks to the GLP’s busybodying, successive Lord Chancellors have threatened to tighten up the “sufficient interest” test, in a way that is unlikely to benefit the public. Is this what the Good Law Project is for?

Fortunately, the Napoleonic ambition of Maugham’s project looks beyond the law of Judicial Review. The GLP is now planning legal action against Instagram’s parent company, Meta, for irresponsible advertising to children. They have instructed a “global law firm” to “scan Europe for the best jurisdictions in which to litigate”. “We don’t know whether the case will win,” Maugham adds.

Thank goodness, then, that a “better metric” than success-rate, as he informs the reader, is “the frequency and aggression of the attacks directed against us by Government ministers”. Rishi Sunak once named him 10 times in a press release on plans to put tighter limits on “lawfare” — as Jolyon tells us at least three times. One gets a sense that here is where he gets his kicks. “There is no greater compliment you can be paid by the power you challenge than to force it to speak your name, to breathe into your lungs the air of power, of saliency”.

With his beady lawyer’s eye, Maugham identifies wrongdoing and forces Tory ministers to stop cheating, or so the story goes. But Bringing Down Goliath is a bold title for a tale in which Goliath suffers nothing worse than the occasional stubbed toe. Towards the end of the book, the myth-making gives way to something closer to reality. Referring to their litigation over the procurement of PPE during the pandemic, Maugham writes: “we generated literally thousands of pieces of mainstream, national media coverage about the scandal… Against that background, the ultimate decision in the case was almost irrelevant.” And so he admits what many have long suspected: the Good Law Project sees the Administrative courts as Just Stop Oil sees snooker tables — as a platform for attention-seeking.

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As a youngster, Maugham says, he never doubted that he would be successful. And if we adopt his definition of success — basically, winding people up ‘til they slag you off — he was correct. It is his insistence that he is, and was at all relevant times, right that precipitates much of the text of this work. (“Of course I get stuff wrong sometimes,” he concedes, but details are not shared.) Journalists who upset him, colleagues who question him, solicitors who take against him, and of course judges who find against him: they all have their turpitude explained to them, in painstaking detail. This book has a central and unfulfilled purpose in common with the Good Law Project itself: the protection and improvement of the reputation of Jolyon Maugham KC.

Some who have paid attention to the sententious verbiage, the heavy-worn learning, the big head on narrow shoulders, compare Maugham to a windy little vicar from a 19th-century novel. For others, the fictional character most readily called to mind by his obsessive score-settling and unbending devotion to status — so much dinner, with so many very senior civil servants — is Alan Partridge. “Giving a speech on receiving the Praeses Elit in Dublin,” begins one of Maugham’s sentences, before it clarifies: “a prize awarded to those who have advanced the discourse in their line of work and are a source of inspiration to young people”. On this occasion, he “reflected on Gandalf standing on the bridge at Khazad-dûm in The Lord of The Rings. The fiery twin-horned Balrog approaches. And, although Gandalf knows the Balrog is too much for him, he plants his staff on the bridge and he says: ‘You shall not pass’.” As with Partridge, so with Maugham: he is much funnier than he intends to be.

Good law is difficult and, to most people, rather boring. It does not play well on social media. One benefit of the less highly networked culture of the recent past is that the acquisition of influence tended to be slow, and meritorious; whereas today, a certain kind of status within the ever-growing online legal world can be achieved swiftly, by playing to the cheap seats. So, for the time being at least, it is hard to completely refute Maugham’s clichéd insistence that “the real court is that of public opinion”.

We may look to the future with some foreboding, then; but for the GLP, it seems bright. Big plans are underway, involving tech platforms, shareable legal advice, and “ready-made legal structures” to provide “new ways for communities to live and be”. Though Maugham admits that he “can’t claim to have built a social movement”, that is clearly where his ambitions lie. And if he fails, well, the publicity generated in the attempt will render it a success — although perhaps not on a deeply technical level.

It had been an unusual trial. In protest cases, it is not uncommon to find defendants who choose to go without an advocate, since those defending themselves are, quite rightly, given a little more latitude than lawyers. Usually, protesters’ evidence about their beliefs is kept short, for the sake of time and simplicity, or even proscribed altogether, when the limits of any “reasonable excuse” defence can easily be determined in advance. But the defendants here, with the agreement of all parties, were allowed to explain their motivations at considerable length. The jury heard nearly four hours of evidence about the science of climate change, its consequences, and government policy.

All of which turned out to be, strictly speaking, irrelevant. Because once the evidence had been heard, the court decided that, on all the facts of the case, the “reasonable excuse” defence did not allow for a protest at the top of this bridge.

The right to protest is an important one, protected first by our Common Law and then by the European Convention. But there must be limits, even where no violence is used and no damage caused. Those limits in the British courts, though, are surprisingly hard to discern.

At least part of the reason for the judge’s ruling was that the public has no general right to access the Dartford Bridge, much less to climb it. Indeed, it is a criminal offence even to walk onto it. For protests on other roads, a jury might, depending on circumstances such as how long the disruption lasts, be told that the question of reasonableness is up to them.

Nevertheless, the unrepresented defendant was not prevented from asking the jury to find that their actions were reasonable — and so I was not prevented from arguing that they were not.

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Anyone facing conviction and imprisonment ought, surely, to be permitted to give reasons for their actions, even if those reasons do not amount to a legal justification. If you are caught with a knife, no court would seek to prevent you from telling the jury that you forgot it was in your pocket — despite the fact that the appeal courts have decided that forgetting is no defence. But should a Crown Court be expected to put aside several hours for evidence about climate change? There are 60,000 cases in the queue after all.

But attempts to shut down environmental discourse in court have not ended well. David Nixon, who in his trial ignored a judge’s direction not to refer to climate change, and then refused to apologise, was recently sentenced to eight weeks’ imprisonment. Unapologetic contempt of court must be punished, sometimes harshly, but the general view at the Bar is that the justice system was not the winner there. The case made the courts look harsher than they are.

Judges are in a difficult position, because the law is a mess. The main problem is how to interpret a “reasonable excuse” defence when a defendant’s rights to Freedom of Expression and Freedom of Assembly are engaged. The uncertainty became a problem, in 2018, in an appeal from a Magistrates Court trial about a protest at an arms fair. The District Judge had decided that the obstruction of a highway was reasonable, and therefore not criminal, because — in essence — the protest was peaceful, orderly, worthy, and short. Nothing hugely problematic about that.

But the Crown felt that the judge’s reasoning had gone awry, so appealed the acquittal. And in the course of agreeing with that complaint, the High Court introduced an idea that has complicated things ever since. When judges have to determine whether a law is compatible with the European Convention, they have to perform a “proportionality assessment”, and the High Court said that, in protest cases, a proportionality assessment could simply replace the question of reasonableness. The trouble is, proportionality assessments are very, very complex.

The case then went to the Supreme Court, which condoned the use of proportionality assessments. They also suggested — somewhat offhand and in passing, it seems to me — that this task could be carried out not only by magistrates but also by a jury. Even the most die-hard of activist lawyers see that move as, well, innovative. And many of the rest find it completely bananas. Juries cannot sensibly be asked to perform legal analyses that High Court judges might take days to decide. The result is that it has become very difficult for those attending a protest to gauge their level of exposure to criminal liability.

There are some, of course, who appear to think that there should be no limits on non-violent, yet disruptive, climate protests. A month ago, a few days before the Dartford bridge trial began, Jolyon Maugham KC and others signed and publicised a declaration entitled “LAWYERS ARE RESPONSIBLE”, in which they asserted, among other things, that they would “withhold their services in respect of action against climate protesters exercising their democratic right of peaceful protest”.

There are a number of problems with this approach. First of all, most of the signatories are solicitors, who unless they apply to join the Crown Prosecution Service are in no danger of being asked to prosecute anything. And none of the handful of barristers who signed, I am fairly sure, is on the CPS advocates list, so they too are quite safe. Moreover, although the declaration does not actually go so far as to say in terms that these cases ought not to be prosecuted by anyone, that is the clear implication of a declaration of “conscience” — that is, of what they believe to be the morally correct attitude.

Maugham, of course, punched it all up in the Guardian. “Sometimes the law is wrong”, he noted sagely. Well, yes. But by what mechanism should the enforcement of the law be changed? By Parliament, and the law being applied the same to everybody? Or by the whims of barristers’ consciences?

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A solid causative link between “climate justice”, however you choose to define it, and stopping your fellow citizens from moving about has not yet fully revealed itself to me, even acknowledging the “press attention” argument. But I would have happily and vigorously defended the Dartford protesters, just as I defend people accused of much more unpleasant crimes.

The so-called “Cab Rank” rule, according to which barristers cannot turn down cases, should discourage the public from identifying lawyers with their clients. If you know that a barrister could have refused to act for an unpopular client, you are more likely to believe that he or she approves of their actions. But it seems that the administration of justice could benefit from raising awareness of this traditional, non-partisan approach to barristers’ work: Insulate Britain, for example, has threatened to prosecute me “in the years to come”.

This is an alarming development in activists’ attitude to the Rule of Law. And since climate protest is on the rise, with enormous Extinction Rebellion protests planned for this weekend, the administration of justice — the fair application of the current law to all citizens — must not be undermined.

Trowland and Decker have just been handed sentences much stiffer than climate protesters have been used to receiving. While this may well have some deterrent effect, the actions of Just Stop Oil and similar groups are not going to abate any time soon. Both protesters and the public need to know how the law will balance their respective rights, and in what circumstances. Climate change is an issue of great public concern, but the criminal courts are not the forum for litigating government policy from first principles.

It was not long before this that the neuropsychiatrist Dr Colin Shapiro had coined the term “sexsomnia”, and it was he who carried out a thorough investigation into the incident. He interviewed the defendant’s friends, family, and ex-girlfriends, and monitored his brain activity while sleeping. At trial, he expressed the view that the attack had been committed during an episode of parasomnia, otherwise known as sleepwalking. Several well-known triggers were present: alcohol, exhaustion, emotional stress.

The prosecution denied that the attack had been involuntary, but did not call on any other expert to contradict Dr Shapiro. The judge agreed with the defence, and the defendant walked free. A judge in the Court of Appeal, which examined the case comprehensively, deemed sleepwalking attackers “one of the most difficult problems encountered in the criminal law”. A sleepwalking victim is perhaps an even more troubling proposition, because a further question arises: could there have been a “reasonable belief in consent”? And can a complainant suspected of sleepwalking be expected to provide contact details of ex-partners, or submit to intrusive testing? One case of a sleepwalking victim — or so the defence argued — is the subject of a recent BBC documentary, Sexsomnia – case closed?

The facts are similar to the Canadian croquet case. Jade McCrossen-Nethercott — who has waived anonymity — fell asleep on a sofa at a small London house party in 2017. She had not drunk a great deal. When she awoke, she felt as if she had been penetrated. Her trousers and underwear were off. The man responsible was beside her. She challenged him. He said he thought she had been awake.

The documentary tells the story of her contact with the criminal justice system following this horror. We are shown an extract from her video-recorded account to police, in which she discloses a history of parasomnia. The defence, seeing this, instructed a sleep expert, who said there was “a strong possibility” of “sexsomnia”. But the phrase “strong possibility” comes from this media report; the documentary puts it much lower: “consistent with”. This is not the only piece of apparent one-sidedness in the programme. When we are played the recording of the Crown Prosecution Service lawyer telling Ms McCrossen-Nethercott that they are going to drop the case, the clear impression is given that the decision was based on only a single expert report, from the defence.

In fact, as is later written in a super-imposed caption, there was a report from a second expert. Not included in the caption is the fact that the report was commissioned by the Crown itself. An expert’s first duties are to the truth, and to the court, but it is not uncommon for bias to creep in. So it was quite proper for the Crown to obtain a second opinion — which, it turned out, also supported the “sexsomnia” theory. If I were the defence lawyer in a case like this, armed with two expert reports that suggested a real possibility of sleepwalking, I would be feeling very confident. As the CPS explained to Ms McCrossen-Nethercott, the expert reports meant that the evidential threshold of a 50% chance of conviction was no longer met. The court duly recorded a Not Guilty verdict. There would be no trial.

But Ms McCrossen-Nethercott challenged the CPS’s decision. In particular, she felt that the strength of the sexsomnia contention was not enough to end the case before trial: there was no evidence that she’d engaged in sexual activity during any of her previous sleepwalking episodes. One of the experts had said that this could have been her first episode. Ultimately, the Chief Crown Prosecutor who performed the review agreed with Ms McCrossen-Nethercott: these difficulties should have been examined in court. Small comfort, of course, when the defendant had already been formally acquitted. Ms McCrossen-Nethercott is now suing the CPS.

Her case is thought to be the first in which the complainant’s alleged parasomnia, rather than the defendant’s, is central. But there is no doubt that sexsomnia exists, and is not all that rare among those who sleepwalk. And although it is about three-times as prevalent among men as it is among women, it certainly affects both sexes.

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In an appearance on Woman’s Hour, the director of Sexsomnia — Case Closed? said she had found about 50 cases over the last 20 years in which the issue has arisen. In one of them, a young Yorkshireman was acquitted of raping a woman in his flat on the expert evidence of Dr Irshaad Ebrahim. It was slightly disappointing, therefore, to see Dr Ebrahim in the documentary telling Ms McCrossen-Nethercott that “there are a lot of lawyers trying to get business out of it [i.e. sleepwalking defences]… The ones who are enabling it are the ones who are advertising they can get you off”. A lawyer with experience in this niche area must surely be permitted to advertise their competence — how else is an innocent sexsomniac to choose a representative? And I doubt many, or any, lawyers are claiming that they can use the defence to “get you off”.

Other 21st-century parasomnic rape acquittals include an RAF serviceman, who in 2006 had sex with a 15-year-old girl after a party, and whose longstanding somnambulism earned him the nickname “nightrider” from his colleagues; a drama student who had sex with a non-consenting woman at a house party in 2008; and a roofer who in 2007 had sex with his friend’s wife after a barbecue. All these cases, and many others like them, have one startling thing in common: the defendants were acquitted entirely, with no requirement to submit to treatment, or to avoid the triggers that increase the chance of parasomnic attacks occurring.

And this is the issue that the Ontario Court of Appeal had to grapple with in 2008, after the croquet party acquittal. The trial judge’s finding that the attack had been involuntary was not open to challenge. But the prosecution argued on appeal that he had been wrong to find that parasomnia should result in an acquittal; rather, they said, he should have been found insane — and therefore liable to be detained. The Appeal Court agreed.

In Canada, as in the United Kingdom, the law divides involuntary acts into two separate categories of automatism: insane, and non-insane. And there were two recent precedents on how this should be done. First, R v. Parks (1992), in which a sleeping man drove ten miles to the home of his mother-in-law and bludgeoned her to death with a steel tyre lever. There, the Supreme Court had upheld the finding of non-insanity. Secondly, R v. Stone (1999), in which a man stabbed his wife 47 times after suffering an abusive tirade (she said, he claims, “that she couldn’t stand to listen to me whistle, that every time I touched her she felt sick… that I had a little penis and that she’s never going to fuck me again”). The judges in that case shifted the law firmly in the direction of insanity for such cases.

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The Supreme Court in the croquet case expressed the view that part of the reason for the shift in Stone had been the contemporaneous softening of the sentencing options available for “insane” defendants. The Court in Parks, they noted, had had an understandable reluctance to condemn a sleepwalker to indefinite detention in a mental institution. Post-Stone, however, outcomes became more flexible.

Here, “insanity” in the criminal law requires a “disease of the mind” — an outmoded phrase from an 1843 opinion of the UK Law Lords — but neither concept matches any medical definition. The legal distinction between insane and non-insane automatism has been described in various different ways over the years, but the real nub of it was captured by Mr Justice Bastarache in Stone: “The fundamental question … at the centre of the disease of mind enquiry [is] whether society requires protection from the accused.”

And so it should be. But in the United Kingdom we do not seem to have caught up. In 1991, in a case in which a 32-year-old man attacked a young woman he fancied with a rock and a video-recorder, apparently in his sleep, the Court of Appeal held that sleepwalking violence should generally be regarded as insanity rather than automatism. But as press reports of sexsomnia acquittals suggest — and as the Law Commission has since confirmed — common practice in the trial courts is to allow verdicts of non-insane automatism for sleepwalkers, as if they are no threat to society.

Automatism is better for the defendant in terms of outcome — acquittal rather than detention in a mental hospital — but also because of the different burden of proof. A mere doubt is enough for a non-insane automatism acquittal, whereas the defence have to prove insanity to be likely. There are, therefore, sound conceptual and public protection arguments in favour of treating sleepwalking as insanity. (Not that it would have helped Ms McCrossen-Nethercott: the defendant cannot be expected to disprove the absence of reasonable belief in consent.)

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If we did treat sleepwalking as insanity — as many argue we should — there would at least be the possibility of giving violent sleepwalkers medical and other treatment, forcibly if need be, in order to protect the public. The case of former soldier Joseph Short illustrates the potential benefits of this approach. Short was accused of a 2011 rape in Scotland, but the Crown dropped the case after leading expert Dr Colin Espie supported a diagnosis of sexsomnia. He was then tried in Hull for a further rape, and acquitted on the same grounds. In 2016, he was tried in Birmingham for another two sex attacks.

This time, he was convicted, and received a 15-year extended sentence. Dr Espie had new evidence to give: Short had not followed his advice on how to reduce the risk of a sexually violent parasomnic episode. But some more formal constraints on his freedom might have saved Short’s later victims, assuming (which we should not) that he was in fact a somnambulist rather than a lying rapist from the start. In 2013, the Law Commission recommended a wholesale reconsideration of the law in this area. It has not been followed up. There is no evidence of an epidemic of false sexsomnia defences, but such cases ought to be dealt with consistently, and with public protection foremost in mind.

The law’s response to one of the earliest well-documented cases of violent sleepwalking may serve as inspiration. In 1843, a doting father, 28-year-old Simon Fraser, got up in the middle of the night, picked up his 18-month-old son, and killed him by repeatedly smashing the boy’s head against the walls and floor. He thought he had been fighting a monster. The jury found him not guilty, and — following some dispute between experts — not insane. There was, however, according to some reports, an informal arrangement agreed: for the rest of his life, his wife would lock him in his bedroom at night.

But these days it might be best if the Courts could deal with those who commit involuntary violence by subjecting them, in appropriate cases, to the enforced supervision of medical professionals and probation officers. It is unwise to leave even an accidental rapist’s remedy to his own sense of personal responsibility.

Independence creates responsibility, and personal jeopardy. These then give rise, over time, to the good sort of institutional pride, and so to exactly the kind of “strong culture of ethics” noisily boasted of by organisations where it is so obviously absent.

Income has fallen by about 30% in 15 years. The Government rejects the Criminal Bar Association’s request for a 25% increase, and offers what it claims is 15%, but which really amounts to less. This will only apply to new work and not to the 60,000 cases in the backlog, which will take a year or two to complete. So by the time new trials are finished and paid, inflation will have annihilated the benefit.

Among the reasons given by the Government to the Chair of the Bar as to why any increase cannot be applied immediately, in line with their own report’s recommendation, is “software challenges”.

So on the surface, yes, it’s about money. Baby juniors’ income horror stories are well-known, and £50K for 50 year-olds in London — for banker hours and teacher stress — will not attract students of the first, or even the second, rank. But it would be wrong to insist that no one, or only the incompetent or wealthy, would do the job unless the money improves.

A profit-sharing corporate model could get the Government over the hump: subsidise the juniors’ income from the seniors’. Standards would fall, as there’s not much fat left on even the higher incomes, but at least no one would drown in debt while earning £10,000 a year. The real problem, though, would be the end of independence.

Barristers who work in the traditional way — that is, as members of a set of chambers, but self-employed — do not share profits. Instead, they are paid directly for the work they do. They chip in for clerks and an office — about 20% of gross income — but they do not have to chip upwards to a boss. This is of course different from the way solicitors operate: all their fees go to the partners, who then pay a proportion in salaries.

Now, profit-sharing — or labour-exploiting, if you prefer to see it that way — does not turn lawyers bent. Partners are responsible for the actions of their junior employees, and it is in a firm’s interests to maintain an ethical culture appropriate to their corporate structure. But there is something about the way things move in and around a criminal courtroom that makes them intractable to a corporate ethical culture.

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Anyone who has watched a criminal trial knows it is not all action. Longeurs almost comical to the unfamiliar are commonplace: a room full of people sitting in silence for half an hour, taking turns to glance about for something that might remind them what everyone is waiting for. But the blasts of activity, when they occur, are intense, and — importantly — unobserved.

A short private conversation with a client, opponent, witness, or police officer can suddenly shift the course of a trial. Usually these exchanges are not, and cannot be, written down. Promises must be kept, yet no one else can ever be sure what was said. So how is trust maintained? The answer is, by an ethical culture based on individual responsibility, and individual reputation.

Run into a friend at court, and you will soon be discussing each other’s opponents: in particular the extent to which they can be trusted. And despite great opportunity for short-term advantage through dishonesty — or perhaps because of it — it is rare to hear of serious ethical failure. Those who do cross the line become infamous and do not prosper.

An obvious counterexample is employed advocates: they are many, and play fair. But they are still in a minority, and so their culture, the culture in which they must try to succeed, is the culture of the independent Bar. Many of them come from its ranks,  and those who do not, but who want to build the respect required for advancing their clients’ interests, must adopt the prevailing ethical norms. “My boss said so” can never be a good answer to a judge’s question.

Of all the corollaries of independence that feed this culture of integrity, perhaps the most significant is the habit of most independent advocates to both prosecute and defend. The sometimes giddying sense of “I could have been on the other side of this” helps keep temperature low and probity high. Yes, there is increasing specialisation, but the majority keeps the right culture alive. With a mainly employed Bar, however, it would disappear, and the courts would soon thrum with the tribal attitudes of mutual distrust and moral disgust that we have found so inimical to justice on social media.

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There are foreign jurisdictions, of course, where integrity in criminal courts is high, and where advocates are not fully independent. But this will be thanks to their own professional culture and their own complex network of long-standing conventions. Just because they might manage without their independence does not mean we can do without ours.

And in fact, I suspect we do have something special over here, and not just in comparison with the obvious example of America. A recent Times piece on the strikes described us as an “extraordinarily kind” lot who only do the job “to help people”. Perhaps it’s the company I keep, but I wouldn’t personally put it quite as high as that. But while I may never find it difficult to tell the difference between my esteemed colleagues and, say, the volunteers at a children’s hospice, I am certain we are far more honourable than we are perceived to be — and that this has a substantial positive effect on what ultimately matters: trial outcomes.

Even putting justice aside, there is another important public good that depends on independence: efficiency. Independent counsel at court — with personal responsibility, personal jeopardy, and a personal reputation to consider — can often sort out in 15 minutes what a more corporate litigation process might take weeks to decide. That is not to suggest that the slow business of pre-trial litigation could be sped up by handing it over to barristers – on the contrary. But rather that there comes a time when they, and their independence, are required.

So why is the Government fighting? Simple short-termism and bloody-mindedness, no doubt, and because they do not believe the warnings. But also, I suspect, from the politician’s natural reluctance to pass up an opportunity to acquire power. The Bar is a small but significant national institution, whose members sometimes humiliate ministers with impunity. Wouldn’t it be nice if the Bar were weakened somewhat, made a little more biddable? Of course, destroying the independence of the legally aided Bar would not affect most Public Law practitioners, but there are not always bright lines between the two, at least not in the minds of the Government, and petty resentments are not always rational.

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I personally didn’t love the cries of “All Out” on the steps of the Old Bailey last week, or the cheers when the RMT turned up in solidarity. Theirs is a very different battle. Extreme strike rhetoric — with its menacing undertone of hostility towards “scabs” — is not, in my opinion, appropriate to a walk-out of the self-employed that will leave some defendants spending extra time in custody.

Yes it is the Government’s fault, and yes we are doing this to reduce this kind of outrage in the longterm. But nevertheless, a small number of Counsel, in particularly sensitive cases, are choosing to continue with their trials, despite their support for industrial action – and they must be respected. We are a “fees” profession, and if we do not want to become a “pay” profession, we should be careful not to behave like one.

The right of barristers to strike has been much discussed, and much advised on. The conclusions are vague. But what is clear is that the barristers participating in the walk-outs — unlike teachers, train drivers, or even doctors — are risking serious professional disciplinary sanction. Strength of feeling is not an infallible guide to the merits of an argument of course, but here they do coincide. And these are actions, not words — actions that have never been taken before. I cannot see the Bar backing down.

There is a well-known handful of barristers on Twitter who over the last few years must have damaged the profession’s reputation among Government even more thoroughly than among the public at large. This is not their fight. This is the fight of the inconspicuous thousands, who can give honest advice to a client, argue fearlessly with a judge, or carve a sensible deal with an opponent, without having to factor in the career-affecting demands of a line-manager or HR department. This is a fight any Minister of Justice should be happy to lose.

After educating the ignorant and correcting the mendacious on inefficiencies and unfairnesses in the Criminal Justice system these last several years, he now has two bestsellers and half a million Twitter followers to his name. But the big reveal in his new book is that he, too, was once a sinner. An “ardent Daily Mail reader” at university, we are told that “soft sentences infused me with fury”. Then he beat a path to the Criminal Bar. (“I’M GOING TO BE A FUCKING BARRISTER!” he screams in “uncontrollable hysteria” when his pupillage offer lands.) And, over the course of his early years in practice, he sees the light. Nothing But The Truth — his third book, and an autobiography of sorts — tells the story of a moral awakening.

Observing that his “new creed” is now “the dominant strain of ideology” in the profession, he suggests that “there is something that this job does”. In my experience, this is true: the human moral compass — a motley collection of powerful emotional heuristics — did not evolve to navigate the business of prosecuting and defending alleged rapists and murderers. Doing so can shift a barrister’s focus, I think, away from judgment and towards a Taoist acceptance of The Way Things Are.

But that isn’t what the Secret Barrister is talking about. Rather, he is looking to explain his conversion to Progressivism.

Of course, in trying to establish causation, he neglects the base rate: everyone has become more progressive in recent years — barristers, ballet dancers, even Daily Mail readers. Especially Daily Mail readers. An intelligent, aspirational middle-England millennial abandons cumbersome provincial baggage on his ascent to a high-status job: this is no revelation.

As the author himself acknowledges: “It may of course be that mine is nothing more intriguing than a tale of subconscious conformity. Of a weak-willed youngster uncritically devouring the ideological gruel of their industry”. He does this a lot: spiking an objection by caricaturing it only slightly — but enough to make it unattractive. Not quite a straw man then, but perhaps a wicker man. For a tricky plea-in-mitigation, you could do a lot worse than this fellow.

And if his swing-o-meter did shift more than most when he started blogging in the early teens of this century, a cynic might observe that that was when questioning the progressive orthodoxy became a hazardous enterprise among the professional classes, and when those in search of a large, publicly appreciative audience needed to pivot.

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But the most disappointing misrepresentations have to do with class. At Bar School we meet the “Three-Piece Suit Wankers” who choose to wear “the obligatory public school tie” when everyone else is in jeans. In his early days in practice, our hero looks after a cocky work experience lad, “six foot three, public school tie” (that again), who in response to a witness’s pre-court question silences the SB with an outstretched palm and declares, “I’ve got this one”. The overbearing sky-scraper even boasts of his reliance on nepotism: “When fair and open competition did not bear fruit, a quick phone call from daddy straightened out any misunderstandings, he haws.”

Nothing But The Truth tells of applicants only a decade ago “whose lineage made it impossible for chambers to refuse them”; of the “institutionalised assumption that all aspiring barristers were born choking on platinum cutlery”; and of the “institutional reluctance… to ask ourselves whether it’s right, in the justice system of 2022, that blood remains thicker than water”.

Choose to believe this stuff if you want, but it is no more representative of the modern criminal bar than Mervyn Griffith-Jones in the Lady Chatterley trial talking to the jury about his servants. Any edition of Counsel magazine from the last 20 years will confirm that it is nothing like the truth. Public self-flagellation may serve some purposes, and yes, there is more work to be done. But public schoolboys encounter one another at court these days with all the noisy enthusiasm of former participants in an unsuccessful one-night stand, or veterans of an unpopular war.

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The question arises, why paint this inaccurate portrait?

Well, the Secret Barrister is a creature of social media, and has become an avatar: reliably representative of mainstream opinion, or at least of the publicly expressed opinions of the minority of the profession which uses Twitter. His credibility and popularity has benefitted from endorsement by senior colleagues, many of whom are of a generation for which the struggle against a reactionary hegemony is slightly less mythological. Sticking it to the forces of conservatism is as much their obsession as his. Will Lloyd’s description of Centrist Dads comes to mind: “they still carry on like they are hated by an establishment full of port-soaked aristocrats and Thatcherites who want Nelson Mandela to stay in prison”.

There may be a more personal reason for him to take this line. It is evident that the author is clever, ambitious, and highly sensitive. Solipsistic, self-righteous, egotistical, timid, paranoid, brittle — these are all adjectives he applies to himself in the book, most of them repeatedly. If there is any truth in this self-deprecation, could it be that the only possible impediment to his professional success — nepotism — is a monster that takes on exaggerated proportions in his perception of reality?

And he does at least deploy his disarming postscript thing again: “Some of my alienation may well have been attributable to my own shyness and awkwardness, of course… All the grown-ups present… went out of their way to emphasise how welcome we all were.” Oh right. Perhaps the Bar isn’t so cliquey after all.

Class interests are persistent and mercurial, but exaggerating a problem doesn’t help solve it. One third of new entrants to the Bar attended private school. The national figure is 7%. Even allowing for applicants on scholarships and bursaries — and for the possibility that private schools currently provide, on average, a better education — this indicates a problem: privately educated candidates are surely not several times more likely to be the best person for the job. If exam results are not a reliable guide, it can be difficult to work out who is the best, but it is in Chambers’ interests — and society’s — to do so. What is not in society’s interests, or working-class candidates’ interests in particular, is to entertain Twitter liberals by giving the false impression that the Bar continues to operate like a 19th Century Guards’ regiment.

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There is an interesting collateral effect, though — perhaps entirely subconscious or coincidental. All this tilting at the dwindling number of dauntingly privileged colleagues, the lamentations about “pompous regalia” and “pageantry”, the chin-stroking about what people make of us “swigging our port from outside the stained-glass windows” — it all has the side-effect, does it not, of reminding “the public” just how very special and important we are?

An image of this type — of little crowds of ordinary people at the gates of Lincoln’s Inn Hall, collars up against the cold, pressing their noses to the glass and peering in at all the Learned Counsel as they swig port in their finery — is, I am quite sure, one that gets much of “legal Twitter” through the day. For what it’s worth, most practising criminal barristers attend their Inn for a fancy dinner a handful of times over the entire course of their career. There is no need to think, much less talk, in this way.

And I wonder if the Secret Barrister himself is tired of the alter ego. The latest book contains snippets of new information, surely not all invented, from which a determined researcher could, I expect, identify him. Perhaps that’s the plan. Strictly, Have I Got News, the Labour benches, Sir Keir’s Lord Chancellor perhaps?

In this sense, his perspective is representative: many of his colleagues have dreams beyond the bar. Huge numbers of criminal barristers have left the profession. Those who remain now find ourselves refusing to do sub-minimum-wage work. There will never be votes in it, but as the crisis in Criminal Justice deteriorates, perhaps the Government will yearn momentarily for a minimum level of administrative competence. It feels slightly heretical to knock the Secret Barrister — he’s raised much awareness of this issue — but some of us wonder whether it might be time to change the tactic of endlessly shouting “LIAR!” at Justice ministers.

The day after Captain Tom died last February, 36-year-old Glaswegian Celtic fan Joseph Kelly substituted “Brit soldier” for “Indian”, in the manner of the IRA, in a tweet. He then clarified his position by adding: “burn auld fella, buuuuurn.” Last week, almost a year on, he was convicted by Sheriff Adrian Cottam of sending a “grossly offensive” message contrary to section 127(1)(a) of the Communications Act 2003. He awaits sentence, and perhaps an appeal.

On the rare occasions when discussion of free speech trials avoids the buffers of perceived partisanship — “You were a Thursday night pot-banger so of course you want to throw the book at him” —  it is usually derailed by flitting between two separate questions: “Was the law correctly applied by the court?” and “Should the law be different?” Such flitting can of course be deliberate as well as careless.

Our answer to the first question almost always depends on the meaning of “grossly offensive”. In 2006 the Judicial Committee of the House of Lords held:

“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”

As to the mental element of the offence: “the defendant must intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so”. And in 2017 the High Court seems to have clarified that to mean: “taken to be so by a reasonable member of the public.”

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So, if a message is liable to cause gross offence to a person to whom it relates, and the defendant is aware that a reasonable member of the public might take it to be liable to do so, that is enough for a guilty verdict.

Now, one could argue that there is no prospect of someone taking offence at a tweet posted after they’ve died — the charge, after all, specified “offensive remarks about Captain Sir Tom”, rather than about British soldiers in general. But the appeal courts would likely find a way to close that apparent loophole — perhaps by establishing a very broad interpretation of “to whom it relates”.

Was Section 127 applied correctly then? Probably, yes. My own reaction to the tweet was, I confess, low-key: somewhere between a frown and an eye roll. But it was clearly liable to cause gross offence to Captain Tom’s family, and the defendant would surely have been aware that a reasonable member of the public might see it that way.

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But that doesn’t mean this law is any good. And that’s because it does not rest upon a shared cultural respect for a set of extreme taboos. All manner of commonplace statements are now liable to cause gross offence to those to whom they relate — yet be completely unobjectionable to almost everybody else. Yes, there are interpretative protections about the importance of context and so on, but Section 127 criminalises too much, and too vaguely.

The Indian Supreme Court came to this conclusion several years ago. The relevant parts of Section 66A of their Information Technology Act 2001 were written in near-identical terms to Section 127 of our Communications Act 2003. In striking down the legislation in 2015, the Justices held that “expressions such as ‘grossly offensive’ […] are so vague that there is no manageable standard by which a person can be said to have committed an offence or not”.

Fortunately, we might be about to catch up with the Developing World. In July last year the Law Commission recommended we get rid of Section 127. Its report noted that we lack universally accepted definitions of concepts such as “grossly offensive”; the “spectre of universal standards” should be “rejected”. Arguably, a lack of universal standards does not augur well for society — but we mustn’t deny that this is the state we find ourselves in.

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In place of Section 127, the report recommended a new offence: posting, without reasonable excuse, a communication “likely to cause harm to a likely audience”, and the Crown must prove that the defendant intended harm. Harm is defined as, at a minimum, serious psychological distress. This is, on the face of it, a great improvement. And last Friday, the Government published an interim response expressing their intention to add this offence to the Online Safety Bill.

So unlike Section 127, the new offence would require proof of an intention to cause serious psychological distress. And even when a defendant did hold that intention, he or she could argue that the message wasn’t actually likely to be seen by anyone likely to be seriously distressed by it. This could place heavier responsibility on the bigger Twitter accounts, which is as it should be. And “It was supposed to be a joke”, “I didn’t mean any harm by it”, “I didn’t expect it to be retweeted so much”, and even “in the circumstances it was fair enough” (reasonable excuse) could all, if this law is enacted, become relevant parts of a defence.

But there is a twist. The Law Commission’s original plan, in the consultation paper, was that the Crown need only prove that the defendant was aware of the risk that harm might be caused. This is a much lower threshold than intention. The reason for their change of heart, they repeatedly emphasised, is that the Online Safety Bill imposes a legal duty on social media companies to remove harmful content — including content that is not illegal.

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By Adam King

So a complaint to Twitter about the removal of a perfectly lawful tweet could be met with the response, “Yes, but the only reason tweets like this are not illegal is because we have to delete them”. Of course, the State delegating its natural responsibilities to private companies is nothing new. But to do so to this extent — narrowing the ambit of an important piece of criminal legislation at the heart of our right to Free Speech — is a worrying development, and does not sit well with the Law Commission’s stated aim of “technological neutrality”, or their intention that new offences be “future-proofed”.

If a behaviour is so wrong that it should be criminal, it ought not to slip through the net simply because global tech companies will be told to prevent it. The Law Commission rightly expressed concern about the “inconsistent application” of the Section 127 offence. But if there is one thing all sides can agree on it is that Twitter’s moderation policies are known for little else.

The high bar of intention to cause harm is a welcome development, and a measure of offensive dross in the digital public square is a price worth paying: for freedom, yes, but also for the sense of freedom, particularly among people at the less free end of the socio-economic spectrum. But instead of requiring social media companies to remove non-criminal material, it might be better — safer, even, in the long-run — if they were prevented from doing so. After all, responsibility for deciding what can and cannot be said should rest, perhaps, with any reasonable member of the public. And most of them are not on Twitter.

This “plan B”, outlined yesterday by Sajid Javid, is grist to the mill of the moralists who rage that everyone must be jabbed. Demands for near-compulsory vaccination have become ever more strident. You might get seriously ill, the argument goes. The hospitals might fill up. You might infect NHS staff. You might deprive someone of a bed. And in any event, the unvaccinated might breed mutations. It’s not about you.

This is all perfectly true. Those bad things might happen. And we do frequently expect each other to limit risk to strangers, even at some cost to ourselves. Indeed, a general principle to that effect was established almost a century ago. The “general duty of care”, set out by Lord Atkin in 1932, states: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” But the concept of reasonableness — which appears twice in that formula — leaves judges with a heavy burden of interpretation.

Take the 1951 case of Bolton v Stone. Miss Bessie Stone, on the street outside her home, was hit in the head by a cricket ball. It had been tonked over the boundary for six by “an exceptional straight drive”, as the Law Lords put it. The resulting wound became infected, causing serious pain and disability. And so the courts had to decide: had the cricket club taken “reasonable care” to avoid the accident?

“The existence of some risk,” Lord Porter observed, in the final appeal, “is an ordinary incident in life”. The suggestion that it would have been a “wise precaution” to move the wicket to the middle of the ground, further from the houses, found no favour with him: “I do not think that it would have occurred to anyone that such an alteration would have made for greater safety.”

Lord Normand noted that, “it is not the law that precautions must be taken against every peril that can be foreseen by the timorous”. Lord Reid pointed out that not every peril can be foreseen: “Even the most careful person cannot avoid creating some risks and accepting others”. And Lord Oaksey, who five years earlier had led the tribunal at Nuremberg, found that many foreseeable risks “cannot be guarded against except by extreme isolation” — something we’ve all had enough of in the past 18 months.

All four of those men had seen active service in the Great War. The fifth judge, Lord Radcliffe, while agreeing that the injured lady’s claim must fail, did so “with regret”: the hypothetical reasonable man, “if his play turn to another’s hurt”, ought, he felt, to offer something more than the mere reflection that “a social being is not immune from social risks”. As chance had it, on the very same day that Miss Stone was hit — 9th August 1947 — Radcliffe had submitted his final plans for the design of an altogether more problematic boundary: that between India and Pakistan. We can only speculate whether the hundreds of thousands of deaths that followed gave him a more sombre perspective on foreseeable, though unintended, consequences.

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Cricket balls no longer pose a threat outside Miss Stone’s old house — the ground now consists of a Care Home and a Modesty Clothing business — but legal claims of this kind have become more common, and the courts’ attitude to fault-free risk less accepting. As Jonathan Sumption noted in his provocatively titled 2017 lecture “Abolishing Personal Injuries Law – A Project”, the number of personal injury claims grew to about 250,000 a year by the early 1970s. And by 2014 the figure stood at 1.2 million.

Part of the reason for the increase is a feedback loop with the insurance industry. When a defendant is insured — which the vast majority are, mainly because insurance is compulsory for drivers and employers — it doesn’t quite feel like justice to leave a seriously injured claimant empty-handed in a borderline case. And when the courts expand the potential for liability, appetite for insurance grows.

But the crucial insight for understanding the mechanics of Safetyism, and how we have come to threaten students with a no-jab-no-education policy, was a brief, candid aside from Lord Oaksey in the cricket ball case: “It may very well be,” he speculated, “that after this accident the ordinarily prudent committee man of a similar cricket ground would take some further precaution, but that is not to say that he would have taken a similar precaution before the accident.” Daniel Kahneman was barely out of short trousers, and Cass Sunstein not yet born, but the observation neatly prefigures the cognitive bias they later described: the availability heuristic.

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This is our tendency to judge the frequency and importance of an outcome by the ease with which we can call examples to mind. We over-estimate our share of housework, for instance, because we have no trouble remembering when we took the bins out ourselves — but barely notice when someone else does. For the sake of our argument, if the “reasonable man” has recently been told that something he’s planning to do led, on some previous occasion, to a bad outcome, he will be less likely to do the risky thing, because that bad outcome is fresh in his mind. Which, according to Lord Oaksey’s analysis, actually alters how we determine what amounts to negligence.

If this seems like mere common sense, well, in a way it is. But common sense isn’t always right. The ease with which we recall examples of a result is not an ever-reliable guide to its frequency and importance. If, for instance, a determined and creative cabal of your enemies were to follow you around all day FYI-ing you about all the terrible consequences of your acts and omissions — not taking a vaccine, for example — the availability heuristic would likely lead you astray.

Yet this is exactly what millions subject themselves to on Twitter every day — policymakers in particular. Negligence is defined in law as taking a risk that the reasonable man would not. The reasonable man today is someone who has heard all the hostile moralists’ warnings. And so, the reasonableness window has shifted, and the ratchet of risk-aversion takes another click.

And this is why there’s no smoking gun in the law reports — no moment when the courts’ approach to health and safety went mad: a slow and steady reappraisal of what the reasonable man would do will naturally seem, well, reasonable. But something surely changed between Bolton v Stone and, say, the case of Tomlinson v Congleton, half a century later, where the Court of Appeal found in favour of a man who injured himself diving into a public lake surrounded by “Dangerous Water — No Swimming” signs. Warning notices were not enough, they said: the popular beach beside the water should effectively be destroyed. The House of Lords put that one right in the end, but the fact that Lord Justice Sedley felt able to say that if his ruling required the removal of all similar facilities across the country then “so be it”, tells us something about the direction of travel.

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And more recently, in the Age of Lockdown, social media has given the operation of the availability heuristic nuclear capabilities. The “reasonable man” is bombarded with a very particular set of examples of adverse consequences, and so it is these that stand to determine the shape of negligence. Never mind the social benefits of allowing people to judge for themselves what is best for them and their children, or to apply the much-vaunted precautionary principle according to their own tastes: if you don’t get the vaccine, and the booster shots when they arrive, you’re practically a murderer.

There is a clear and enduring downside to recasting the normal business of everyday life as a special privilege reserved for those who will take their medicine as directed by the government of the day. The upside — increasing the proportion of the vaccinated population from 90% to, say, 98% — is nebulous. Let us keep our heads, while all about us others — France, Australia, New Zealand — are losing theirs, and bear in mind the undeniable fact that we are seeking to strike a balance. In the coming weeks, the Government would do well to consider, very carefully, what is really meant by “reasonable”.

35 years ago, the government felt the need to add section 43 to the Education (No.2) Act 1986; it required universities to uphold freedom of speech, and was passed in response to a spate of No Platformings that feel depressingly familiar. “The most dishonourable case”, it was said, “was at Sunderland Polytechnic, where the Jewish Society was banned on the pretext that all Zionists are racists”. “From the objectionable to the absurd,” the Bill’s sponsor continued drily, “Guildford law school banned the Solicitor-General.”

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But it’s not quite plus ça change. Manchester University’s students may have been spraying Michael Heseltine with red paint when he visited in 1983, but this year the institution graduated to deprecating the use of the word “mother”. Things do seem to have become worse.

Gavin Williamson certainly seems to think so. Yesterday, as he introduced The Higher Education (Freedom of Speech) Bill in Parliament, the Education Secretary declared it a “milestone moment,” promising to counter “the chilling effect of censorship on campus once and for all.”

The plan, first proposed by Williamson in February, is that instead of the toothless statutory duty we have now — a prescription without a penalty — academics and students who suffer for their speech will in future be able to sue for damages. And universities will have to “actively promote” free speech rather than merely “secure” it. In a similar vein, the requirement to maintain a Free Speech Code of Practice will be transformed — into a requirement to maintain a Free Speech Code of Practice “with minimum standards”. There will be Free Speech Champions. And a new Regulator.

The reaction to the White Paper on this Bill was divided along expected lines: excitement from the Telegraph, disdain from the Guardian. But while it might look like a step in the right direction, is any of it really capable of reducing self-censorship — or what Williamson refers to as “a climate where individual staff members are fearful regarding their employment status”? The Index on Censorship, in its lukewarm response, noted that “you simply can’t legislate for cultural change”. The Right would do well to ponder that observation.

The reality is that unless academics and students are given legal protection from capricious dismissal for politically unorthodox speech, Williamson’s changes are likely to be ineffective. They do not plug the hole in the hull, which is that in order to sack someone, a university need only deem their utterance “unlawful” — without any finding by any court. And given the current state of the criminal law, it’s all too easy for an HR department to make a semi-plausible — but wrong — finding of unlawfulness.

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New Progressives — I’m staying away from the w-word — are fond of remarking that freedom of speech does not mean freedom from consequences. They sometimes try to draw a neat line beneath state-sponsored repercussions and hope no one notices that there are all sorts of other consequences that have the effect of restricting free speech in a way we might sensibly want to change. But they do have a point: if, by way of example, I form the opinion that the category of people-who-menstruate no longer merits its own short word for everyday use, and you express the contrary view, I am free to uninvite you to my dinner party, for instance, or refuse to co-author a paper with you.

So, if it’s from fear of social or professional rejection that self-censorship arises, there may not be much that anyone — even a Free Speech Champion — can do. But if the fear is of losing your job — or, as a student, greatly reducing your chances of ever finding one — the outlook is brighter: dismissal for speech transgressions could be outlawed in the absence of an actual criminal conviction. And the criminal law itself could usefully be simplified.

Much of our speech-crime legislation has become difficult to interpret in a fair and consistent way. For example, the least serious of these offences (section 5 Public Order Act 1986) has as its key elements words that mean different things to different people — threatening, abusive, harassment, alarm, distress. The same is true of the “Improper Use” offence in section 127 of the Communications Act 2003: offensive, indecent, menacing, annoyance, anxiety. The problem isn’t that meanings change over time — that’s expected, desirable even — it’s that we no longer have shared definitions for this kind of vocab.

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When, following a long campaign, the word “insulting” was removed from the section 5 offence in 2013, the Home Secretary Theresa May begrudgingly accepted the change on the basis that Keir Starmer, then Director of Public Prosecutions, had assured her that “abusive” pretty much covers “insulting”, so it didn’t really matter. Some would disagree. And in 2021, many more would disagree, and more vehemently, about what is or is not covered by “abusive”.

The District Judge in the Kate Scottow trial last year (she referred to trans activist Stephanie Hayden as a “pig in a wig”) found her mis-gendering of Hayden to be “abusive”. The excoriating judgment in Scottow’s successful appeal to the High Court expressed no specific view on that point (because it didn’t need to in order to determine the appeal) but the tone and extent of the criticism of the District Judge’s approach suggests that it might well have concluded differently. Mr Justice Warby (now Lord Justice) said that her analysis was “legally flawed and inadequate” and that “her reasoning is deficient”. These are strong words by the linguistic conventions of the higher courts.

And if a District Judge can’t get this stuff right, what hope is there for University HR managers, and internal disciplinary panellists? Their judgment could deprive any tweeting student or lecturer of a livelihood. This decision, this power, should be removed from them.

If we want to secure freedom of speech in the long-term we must be clear about our purpose. And it shouldn’t just be the hope of a quick win in the current culture war. We all have a principled passion for our own particular brand of “tolerance”. Each side accuses the other of intolerance — and both are right. There is an intolerance inherent in the expressing of any idea, because time and attention are limited. I might sincerely claim to defend to the death your right to say something, but if I’m talking, you’re not. My ideas, my memes, which replicate between minds as genes do in bodies, are looking for the chance to spread in place of yours. That’s what a culture war is, and it’s never-ending.

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So the reason we should want to protect free speech is to allow the process of cultural evolution to operate smoothly over time, rather than in calamitous bursts after long periods of sclerosis. Of course, periods of stability punctuated by flashes of turmoil might well be how culture naturally evolves. But if unpopular speech is too heavily suppressed, the periods of stasis will be unnaturally long. Most unpopular ideas are unpopular for good reason, but the truth is some turn out to be correct.

So let’s not rearrange deckchairs. Free Speech Champions have made for solid headlines, but they will be seen by many persuadable non-Tories as a sad little army of libertarian proctor-generals, and will have a predictably alienating effect. Instead, we should take care of the hull of the ship: sharpen up the vagaries of the criminal law, and prevent university authorities from applying it.

Freedom of speech urgently needs to be rescued from the battlefield of the culture war. We must acknowledge, for our long-term cultural prosperity, that it forms part of the rules of the game, rather than one of the prizes. The Government has a rare opportunity, with its large majority, to entrench an enduring basic level of free speech — by imposing sensible limits on the consequences of transgression. It should take that opportunity, and take care not to jeopardise support for it with ineffective meddling. For all its noisy “raft of measures” ambition, the new Bill looks a lot like a pruning that leaves the root of the problem unaffected.

As a piece of messaging, “no jab, no job” has much going for it. Like its progenitors “no hard hat, no work” and “no mask, no entry”, it takes an instance of risk-aversion most of us can at least see the sense in, frames it as a value-free universal truth, and adopts the threatening syntax of officialdom to convey its contempt for the public. Add to that the phrase’s enchanting monosyllabic alliteration, as well as the fact that many people will find the idea completely outrageous, and it becomes hard not to see it catching on.

But is it discriminatory? Having an unequal effect that correlates with a “protected characteristic” is not the only way for a policy to be bad, of course. But a claim on those grounds is a nuclear weapon in Employment Law — and a way for employees with less than two years’ service to attack an unfair dismissal — so it’s a good place to start.

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The Equality Act says there’s no discrimination if a requirement is “a proportionate means of achieving a legitimate aim”. One such aim might be the requirement in Section 3 of the Health & Safety at Work Act 1974 — alluded to by both Mullins and the Telegraph’s Cabinet source — to look out for anyone whose health might be negatively affected by your firm’s activities. As for proportionality, perhaps there’ll be an exemption for pregnant women and Christian Scientists — although presumably not for BAME people, who, for reasons no one has yet plausibly explained, are on average considerably less keen on the idea of this vaccine.

But the trickiest question in the discrimination issue is the same one raised by those who would object to a ‘no jab, no job’ policy altogether: namely, is the increased risk of Covid-harm from unvaccinated plumbers sufficient to justify sacking people for refusing to undergo a medical procedure they don’t want?

Now, if we were only talking about, say, doctors and nurses, there might be a stronger argument for compulsory vaccination: the increased risk to others is greater in their case; they’re a small minority of the population; and there are, after all, many other ways to earn a living. Let’s not forget, it has long been impossible for most doctors in the UK to do their jobs without being inoculated against Hepatitis B. But it isn’t only doctors and nurses, and it isn’t only plumbers.

Almost every employer will want to reduce the risk of transmission among its customers and staff — out of an admirable sense of public duty no doubt, and also out of a desire for protection against legal claims, reduced sickness absence, and competitive advantage. And if every employer adopts the “no jab, no job” mantra, Mullins’ argument that workers who don’t comply can “go and work for someone else” rather loses its force.

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And the fact that the ‘no jab, no job’ rule could be applied to almost everyone is a strong indication that it has no intrinsic connection to most people’s jobs at all. Yes, unvaccinated plumbers, and shop assistants, and bus drivers — even tree surgeons — increase the risk of spreading the disease. But so do unvaccinated podcasters with private incomes when they stand in the queue at the post office. Why should the latter be the only kind of person we allow to make a genuinely free choice about the vaccine?

At this point we might start to wonder whether the rubric of employment law — depending as it does on a motley national collection of badly written policy documents and one-sided contracts — is really the appropriate field for planting public health requirements. Might it not be more honest for our Government to use instead the traditional system for the administration of life-ruining penalties: the criminal law?

Statutes create crimes by saying that something is “an offence”. And while those magic words open the door to harsh consequences (although mostly less harsh than being made permanently unemployable — only 5-10% of sentencings each year involve custody) they also guarantee various protections far beyond what’s available at the Employment Tribunal, let alone at an internal disciplinary hearing. The big difference is the higher standard of proof (‘sure’ rather than ‘on the balance of probabilities’) but there are many others, all of which make it much harder to convict someone of a crime than to sack them.

And it’s noteworthy in this context that the criminal law, by means of the Rehabilitation of Offenders Act 1974, seeks to mitigate the dire consequence of unemployability. You can go to prison for six months and a couple of years later, if you apply for a job, you are entitled to tell them nothing about it. “How long will it be on my record?” is a question all white-collar clients ask when they’re offered a plea deal. If they were facing the sack, outside of the criminal jurisdiction — for, say, refusing a medical procedure — the answer might very well be “forever”.

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There’s a clear analogy here, isn’t there, with Free Speech. If everyone you might conceivably work for — manufacturers of everything from ice-cream to razor blades, every ancient Public School, every guardian of the nation’s architectural heritage – requires you to uphold “their” “values” in all visible areas of your life, you will have little choice but to comply. It might start with a particular company, or industry, with a particular need to maintain strict speech codes. Soon, others, noticing the benefits of such policies, follow suit. Before long a deep-sea diver loses his livelihood for sharing an edgy meme on Facebook.

Of course, a plumber with a barbarous social media output might not be as dangerous as a plumber with a higher-than-average chance of carrying Covid, but the principle and the process are the same: individual employers seek to reduce a potential harm by threatening dismissal, and the collective effect is of a national rule. That rule applies across the social spectrum, with potentially life-ruining consequences for transgression — though accusers need not prove anything beyond reasonable doubt — and often with little prospect of rehabilitation.

I have represented, in Professional Disciplinary Tribunals, many men and women who have said — or sent — inappropriate things. Some manage to hang on, some don’t. Those that don’t are often just as devastated by the consequences as the criminal client who has to leave the dock by the back stairs after a guilty verdict. But almost none of them have done anything they could sensibly be prosecuted for. The ever-reducing frequency with which that fatuous free-speech stick-man strip gets posted suggests that the downside of this phenomenon is beginning to sink in.

To treat these issues as something for employers’ discretion rather than as a matter of Public Law not only deprives us of the appropriate protections in the trial process, but also — and more worryingly — evades proper consideration (public and parliamentary) of the balances to be struck.

When it comes to free speech, the Law Commission is currently considering responses to its consultation on Hate Crime legislation. Some of the proposals provoked considerable alarm across the political spectrum —  particularly regarding the plan to extend hate-crime laws into private homes — but as the Chief Executive of the Index on Censorship Ruth Smeeth said, “We need to have a proper national debate if we are going to start putting restrictions on language like this.” Well quite.

As with Free Speech, so with vaccines. I hope Charlie Mullins was right when he said, winsomely, “the entire thing will very soon be a non-issue”. But in case he’s wrong, we must not allow compulsory vaccination to be quietly smuggled in through the back door in ten thousand workplace health policies. The Telegraph reported a Government source as saying that where there is an “unjustified” fear of the jab, “we have got to help people get into the right place”. I do hope that isn’t a euphemism for “force them to take it”. But if it is, there’s a right and a wrong way to attempt to do it.

Except, of course, it turned out to be nonsense: for 2006-2008, the conviction rates for Snaresbrook and Kingston were within 1% of each other, either side of the national average of 63.9%. I suspect that this did little to dent the audience’s confidence in one of the profession’s most dearly held beliefs: arch references to Kingston juries still abound in London’s robing rooms.

But this was not the only surprise Professor Thomas delivered. The evidence, which came from analysis of over half a million criminal charges as well as a randomised trial with real jurors, strongly supported the proposition that white juries do not discriminate against black defendants. Indeed, it even appeared that a white defendant accused of a racially motivated crime is more likely to be convicted by a white jury than by a racially mixed one.

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Those findings do not, of course, call into question the unfairnesses suffered by the non-white population upstream of trial — if anything they could be said to emphasise them, given that non-white people are over-represented in prisons. But they did allay the fears expressed in the Auld report of 2001, which made a recommendation (not subsequently implemented) that “Provision should be made to enable ethnic minority representation on juries where race is likely to be relevant to an important issue in the case”. Whether the findings have entrenched themselves in the public consciousness more generally, however, is another matter.

Last month, Professor Thomas — now an honorary QC — published the results of a new study, commissioned by the senior judiciary to investigate “rape myths”. Her conclusions are thoroughly at odds with received wisdom.

The idea that many people — and therefore many jurors — hold seriously wayward beliefs about this uniquely enraging crime is not new, and has solidified in recent years. It first became common in the early 2000s for judges to warn juries to approach with caution defence counsel’s arguments about, for instance, a lack of physical violence, or a delay in making a report. Such warnings were swiftly approved by the Court of Appeal and found their way into the “Bench Book” — the judges’ bible of approved jury directions.

The need for these warnings arose from a developing understanding that inaccurate assumptions about how rape allegations should be analysed are widespread among the public. The 2010 Bench Book pointed to “research by those who are expert in the subject”, much of which derived its data from surveys. One cited author concluded that “the crucial determinant of judgments about rape cases is the extent to which people subscribe to rape myths. Thus it tends to be attitudes rather than an unbiased evaluation of the facts which determine judgments in these cases.”

And that message has grown louder in the decade since. In 2018 End Violence Against Women (EVAW) commissioned a YouGov poll and reported that “33% think that sex which happens without consent, but where there is no physical violence, isn’t really rape.” Horrifying to think that any jurors have that attitude, let alone a full third of them. No wonder, then, that judicial warnings have become more robust.

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For example, on the question of inconsistencies (which is of course a way to get purchase on the evidence in any trial) 2010’s bench book includes the following direction for sexual offences: “The experience of the courts is that it is unwise to approach the issue of inconsistency with the assumption that a true account is always consistent, or that an inconsistent account is always untrue. It depends on the circumstances and the individual.” And concludes with, “If…you are sure that the essential parts of the complainant’s account are true, you will no doubt act on that conclusion. But, if you are left in doubt about the truthfulness of the complainant’s account, because the inconsistencies cannot be satisfactorily explained, you must find the defendant Not Guilty.”

Fair enough. But the equivalent part of the 2020 version runs as follows: “Experience has shown that inconsistencies in accounts can happen whether a person is telling the truth or not”. And the line about doubt arising from inconsistencies that can’t be satisfactorily explained has disappeared.

Now, these are only short extracts, and much of the thrust is between-the-lines and therefore open to debate. But these warnings are not there primarily to help the defence. Some of them are felt to amount to a nudge in the other direction. Which might be fair — desperately needed even — if jurors believe rape myths. But it now looks like they don’t.

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The UCL Jury Project surveyed almost 800 recently discharged jurors and found that “hardly any jurors believe what are often referred to as widespread myths and stereotypes about rape and sexual assault”. They don’t believe that rape must leave bruises, that a victim will always fight back, that dressing “provocatively” is inviting an assault, or that rapes will always be swiftly reported. But haven’t previous studies repeatedly found the precise opposite?

The reason for the disparity, the Professor suggests, is that her study involved actual jurors rather than members of the public. The jurors had heard trials of non-sexual as well as sexual offences, and of those approached 99% agreed to participate, which means a very low risk of selection bias. Something may be happening, she says, when a member of the public actually goes through the solemn process of sitting on a jury.

Another possible reason for the disparity, it seems to me, is that conclusions from other research don’t always accurately reflect the questions asked. Take the 2018 EVAW headline I mentioned. The small print reveals that the question, with which 33% of respondents disagreed, was, “Do you personally consider it to be rape if they don’t want to have sex but feel pressured to even though there was no other physical violence?” Leaving aside the confusing and redundant “other” (what was the first bit of violence again?) this is absolutely not identical to “Do you think that sex which happens without consent, but where there is no physical violence, isn’t really rape?” Indeed, the 2020 Bench Book even says, “reluctant but free agreement is not the same thing as submission and is still consent even if reluctantly given.”

But why does it matter? Aren’t judicial warnings a good idea just in case? Well, sometimes the defence’s arguments — about delays and injuries and intoxication and inconsistencies — are good arguments. And if the jurors aren’t prejudiced, then a warning about rape myths could easily be taken as a veiled encouragement to ignore a good point. And bad defence arguments? They’ll surely be counterproductive with a myth-free jury.

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Shortly before Professor Thomas published her results the Crown Prosecution Service updated and expanded its list of rape myths, with a consultation on their accuracy and usefulness ongoing. Shortly after that, EVAW published another report, entitled “The Decriminalisation of Rape”. Under the heading “Obstacles to Conviction” is listed the very fact of trial by jury, and it goes on to state, “it has been widely accepted by criminal justice bodies that many members of the public continue to believe in long-standing myths and stereotypes relating to rape”. A lively public conversation seems inevitable — and desirable.

Also listed as an obstacle to conviction, interestingly, is the English “adversarial system” of criminal trials. Adversarial systems are having a bit of a moment: the software that creates those amazingly realistic faces of non-existent people, for instance, uses a type of Artificial Intelligence called a General Adversarial Network: progress is made by one algorithm trying to create something convincing, and another that tries to find the holes. This is very much not the tech equivalent of a continental inquisitorial magistrate. A bad defence point is best dealt with by a good prosecution point. It may turn out that the medieval jurists who designed our legal system were onto something.

And a similar process — a dialectic approach to enquiry more generally — is arguably a better route to the truth than any other. There has until now been very little questioning of the prevalence of rape myths among juries, and it’s not hard to see why: who wants to be “that guy”? But Professor Thomas’s research should be welcomed. Her methodology, and her conclusions, might turn out to be wrong. But they should not be ignored.

But although persuading people to consider unattractive possibilities is something we lawyers claim to be good at, the task of engraving in the public consciousness an image of ourselves as anything other than a flange of greedy leeches has long proved beyond our capabilities.

Until, that is, the Secret Barrister came along in 2015. His carefully researched blogposts pointed out inaccuracies in Ministers’ statements and in media reports of trials and sentencings, and candidly explained the workings and shortcomings of our criminal justice system. This tireless effort led to a substantial following and a book – Stories of the Law and How it’s Broken – that has sold over 250,000 copies.

I say “his”: I haven’t myself met the “SB” as he’s affectionately known on Twitter, but for reasons I’ll withhold, so as not to add too much to the growing identification jigsaw, I am 98% sure it’s a man. (And I say that in full knowledge of tweets such as this one.)

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By Adam King

His second book, Fake Law: The Truth About Justice in an Age of Lies, takes a different tack. This time covering not just crime but also employment, personal injury, family law and Human Rights – and there are good pithy explainers on each – the focus here is on misinformation: from the press, and from politicians.

Now, the Tories have been in power for a decade and have de-funded Justice as if it were a vice rather than a virtue, so complaints of recent political mendacity will naturally focus on them. And as for the tabloids, well, most of them are on the Right, and habitually dishonest, so that will of course be the direction the finger is pointed.

But when the Mail, Sun, and Express are lambasted at least 59 times with a further 25 separate criticisms for the Telegraph, the Star (?), and, across the water, Breitbart and Fox News, whereas the Mirror and Guardian get only seven mentions between them and two of those positive — it’s hard not to wonder whether our pseudonymous blogger has begun to loosen his grip on political neutrality.

Nigel Farage, for example, gets the law wrong a lot (evidence is provided for those in doubt), but is our understanding of Fake Law helped by being told that “anti-European sentiment [is] another tired UKIP hobby horse”? In other news, barristers shit in the Wood Green Crown Court robing room toilets (which, yes, have been leaking since the Queen Mother died).

It’s not a left/right issue, Damian. I’m scrupulously even-handed in my sneering at politicians misrepresenting or making cheap political capital out of the law.

— The Secret Barrister (@BarristerSecret) November 2, 2018

The Guardian doesn’t publish much hang-the-paedos stuff, it’s true, but they yield to absolutely no one in their misrepresentation of the law relating to sex crime. So when, in a section on that topic, an example of hysterical anti-defendant bias is required it’s a little disappointing to find it coming, yet again, from the Daily Mail.

None of this would matter much – both-sides-itis can be boring, and is usually disingenuous. But when the specific theme of a book is Fake News, any tendentiousness at all reduces the allegation to an unenlightening taunt.

Although few alter their political views when relevant untruths are brought to their attention, and although, to an extent, the Mail’s gonna Mail, the correction of falsehoods is important work. But the other side does need to be listening.

When people begin tweets with that dreadful phrase, “I don’t know who needs to hear this, but…” you can be certain that if there is anyone who might benefit from hearing it, their attention will be elsewhere. If you want to persuade people – juries, enemies, Sun readers — you need to talk to them: to them, and not just to your friends. Relentless sneering at their favourite newspapers, even if entirely justified, does not increase engagement.

Newspaper affiliations aside, a legal fact-checker must be careful not to relay any misinformation themselves. In 2018, an Irish Senior Counsel said to a jury, as part of her defence speech in a rape trial,

“Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”

The single 650-word report of the case led to protests around the world, with doxing, vilification and serious threats for the advocate involved. A typical UK comment piece – from The New Statesman – asked “Since when did your choice of knickers equal consent?” The online mob included a good number of lawyers who ought to have known better. Others, eventually, came to her defence: the point was made that, to quote Lord Steyn’s famous line in 2001, “in law, context is everything”.

So it’s a shame to find the Secret Barrister describing the trial as “A shocking case in Ireland, in which a complainant’s underwear was reportedly paraded in court by the defence barrister”, and observing that “such behaviour [is] plainly prohibited in the courts of England & Wales”. The underwear was not “paraded”, and there is no prohibition in this jurisdiction on what she did – nor should there be. The circumstances in which that sort of point could usefully and ethically be made (with or without physically pointing to the exhibit) might be rare, but they certainly exist.

And let’s not forget: juries are discerning. I’d even say that in a single-defendant criminal trial, the cleverest person in the room will very often be a member of the jury. So even when, as will inevitably sometimes occur, Counsel make what they think is a fair point on behalf of their possibly innocent client, but is in fact on the wrong side of the line, we shouldn’t be so quick to assume it will do the defendant any good.

By the same author

Lockdown 'relaxation' is nothing of the sort

By Adam King

There is a tendency to imagine that statements we disagree with are imbued with special powers, which give them a persuasive force that for some reason can never be bestowed on statements we approve of. And this tempts us towards censorship. Better, of course, is to correct lies with facts, and unsound arguments with sound ones — as advocates in court have the opportunity to do.

When I make a defence speech in a rape trial, and a reporter new to the case wanders in, I’m not much worried about the tabloids nor their readers. But I am, sometimes, concerned at the prospect of the non-tabloid media, and non-tabloid people on social media, taking a delicate point out of context and generating a frenzy of moral outrage. Tabloid Fake Law is not the only Fake Law we should be concerned about.

Politicians, the Secret Barrister’s other target, often lie about the law, as they do about much else. But again, it’s hard to ignore a prevailing wind in the selection of examples, and also in the descriptions of the practical effect of certain pieces of legislation.

Michael Howard comes in for a dressing down over, among other things, the changes made to the right to silence more than 25 years ago. But there is in the courts today little or no sense of unfairness about those changes, even among defence-only advocates. “Instinctively,” the author writes, “the ‘nothing to hide’ mantra may be superficially attractive. But it ignores that people may remain silent for a variety of reasons unrelated to innocence or guilt.” Juries, though, are given strong warnings of precisely those possibilities (see Chapter 17-1 of the judges’ guidance) — to such an extent that in some cases a defendant might be better off than they were when the right to silence was absolute.

And when New Labour does get upbraided, there often creeps in the  very sort of “confected outrage” that the book sets out to debunk. For example, until 2008, the law of self-defence was a messy patchwork of findings and phrases from appeal court judges. The Government then put it into a statute. Yes, Jack Straw disingenuously claimed that the changes would “help to make sure that the criminal justice system is firmly weighted in favour of the victim”; but to describe that useful bit of codification as “pure political conmanship” is distracting hyperbole.

By the same author

The trouble with abolishing prisons

By Adam King

The same can be said of the author’s treatment of the Tories’ slight broadening, in 2013, of a householder’s self-defence rights. It wasn’t beautifully done (Chris Grayling had a hand in it) but to call the manifesto pledge “vacuous” and the small alterations “entirely pointless” is both inaccurate and, for many, off-putting.

The Secret Barrister has become something of a venerable institution, well placed to keep up the good fight against Fake Law in the media and legislative bad faith in Government – problems which, as the Treasury Solicitor’s recent resignation over the Brexit withdrawal agreement suggests, show no sign of abating. A progressive shift over the last few years is, as per O’Sullivan’s Law, perhaps to have been expected. But more of those who need to hear the message could be encouraged to listen if a gentler and more even-handed approach were deployed.

Which is all very well, but actually sort of nonsense. Yes, clients almost never confess while fighting a trial — and when they do the advocate will usually have to step away from the case. But the best answers to many tactical decisions, including how to cross-examine the other parties’ witnesses, vary according to the likelihood of guilt. A wise barrister will keep an eye on it.

And the truth is that defending an almost-certainly-guilty man can sometimes be difficult and unpleasant at first, depending on what he is supposed to have done. The early clouds of moral judgment tend to evaporate, though: feelings can be made to follow action, and there’s nothing quite like going in to bat for someone to make you realise that, deep down, they’re actually not so bad.

This is how criminal barristers of all political stripes come to inhabit, at least while they’re at work, an unusually non-judgmental shared moral landscape. You could argue about whether this tendency is best characterised as enlightened or psychopathic, but either way it’s why there is such limited enthusiasm in Crown Court robing rooms for the latest bit of knee-jerk canting from Home Secretaries and Justice Ministers.

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The Kafkaesque nightmare of British justice

By Jenny McCartney

Chris Daw QC is no outlier in this regard. His short new book, Justice on Trial: Radical Solutions for a System at Breaking Point, which is aimed at a general audience, does not suffer moralising lawmakers gladly. Policy announcements with judgmental overtones are variously described as “grandstanding nonsense”, “populist garbage”, “brazen ignorance”, “idiocy”, and so on. Indeed, it’s probably fair to say that there are few things Daw dislikes more than moral judgment. A late chapter draws to a conclusion with the following:

“…I see these men and women, some grey and ashen from decades ‘behind the door’, others fuelled with anger, drugs and resentment, and I just cannot bring myself to judge them evil. I cannot place them in a cage marked ‘outsider’ and draw comfort from my own superiority, just because I am not one of those designated by society as ‘criminal’.”

One might cavil about moralising against moralising, but the sentiment is respectable enough. We are not the architects of our own characters; the extent of our inclination towards criminality is not something we have much — or perhaps any — control over. But even if we go full Sam Harris on Free Will and accept that every choice we make literally could not have been made any differently, we are still left with a lot of rapists and murderers that need locking up. So, what to do?

After a potted history of crime and punishment (the Romans, Magna Carta, witches) Daw embarks on the first proper chapter of four, “Why we should close all prisons”. Last year’s shocking report from the Chief Inspector of Prisons is briefly quoted — “The blood of another prisoner, who had self-harmed two days previously, had not been cleaned from the cell floor… Rubbish was left lying around in bags and there were problems with fleas, cockroaches and rodents” — but the meat of this part of the book is derived from a visit to a grim County jail in Alabama. While Daw may be right in saying that’s where we’re headed if we’re not careful, he does lay himself open to avoidable accusations of straw-manning, since powerful evidence is available closer to home.

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Pity the prisoners who remain locked up

By Carlo Gébler

That aside, while apathy towards prison conditions — and even towards its effects — is commonplace, few who take an interest in the subject could claim we are currently in the Goldilocks zone. But the question remains, how should we do things differently? Like the Scandinavian countries perhaps, whose well-funded, non-violent and rehabilitative systems are mentioned with approval? Not quite. The peroration begins as follows.

“I believe that the answer is simple. We should close down all prisons and start again. For the vast majority of inmates, locked up for non-violent crimes, incarceration […] – without question – increases rates of recidivism.

Non-violent criminals should never be sent to a prison of the kind that we have now. All of the Victorian and other traditional institutions, designed in a bygone age, should be closed down and turned into entertainment complexes or apartment buildings. Or razed to the ground once and for all.”

But does incarceration increase rates of recidivism “without question”? Compared with what? Never arresting anyone for anything? I’d be surprised if a judge could be persuaded to carry out a randomised controlled trial on the point, but I can’t help but suspect that, as Tom Chivers in these pages occasionally observes, it’s a bit more complicated than that.

Daw’s much-trailed “radical solution”, to replace all the closed-down prisons, is then revealed: “Leave those convicted of most crimes in their own homes…we have the technology to monitor every breath, every heartbeat…” A visit to a London security Expo is described, and reference made — with what degree of approbation it’s hard to tell — to “a smiling and enthusiastic Chinese saleswoman, whose technology was by far the most sophisticated on display”.

“There is no doubt”, Daw goes on, “that we have the technology to provide a ‘virtual prison’ environment for every person who has become embroiled in the criminal justice system, which would allow an unlimited variation of restrictions and permissions so as to cater for each individual.”

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Abolishing the police is a cop out

By Mary Harrington

Quite apart from the fact that a criminal’s home environment will often contain its own collection of crimogenic influences, even if we do find ethically palatable technological solutions to replace some prison sentences we are still left with the problem of the rapists and murderers. Daw finally concedes that something with a “secure perimeter” is required, perhaps containing “shared houses”. “Prisoners would have access to medical care, addiction and mental-health services, counselling, and the opportunity to engage in productive work and education.” A properly funded prison, then. Is this really so radical?

Still, Daw is right to call for something different. Our prison system is a product of tradition and inattention, occasionally buffeted by politicians’ whims and their sometimes well-meaning attempts to appease angry voters. Perhaps the best proof of its current irrationality is its inconsistency.

A great deal of time and care is taken (still, just about) to ensure that a defendant is dealt with fairly and effectively from arrest to sentence, including much ink spilled over precisely how many months the sentence should be. But what he is actually then subjected to — that is, the aim of the whole endeavour — varies wildly according to geography and ever-shifting political expediencies. The newly convicted could get anything from rats and sexual violence to mere books-and-boredom.

Nevertheless, even if the custody bit were to be consistently applied, we still have to decide what prison conditions should be. Which would require us to consider what prisoners are actually for.

There’s incapacitation, of course. Taking criminals off the streets does have some effect, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime. Then there’s punishment, which Daw claims is an “illusory notion.” It’s hard to argue with the parents of a child killed by a drink driver — or the children of a pensioner defrauded of life savings — who tend to think the culprit should have at least a slightly hard time. People want criminals to be rehabilitated, yes, but it’s not the only thing they want.

Lockdown may have a lesson to teach us here. Even the substantial minority who opposed it complied with this extremely onerous restriction — not due to the vague possibility of a sixty quid fine, but because of social pressure and the threat of public humiliation. A fresh look at crime reduction could experiment with a bit of this; but ultimately I suspect we’ll stick to the punishments we’re used to.

And yet Daw’s “radical solutions” are offered just as the terms of reference for the first Royal Commission on Criminal Justice since 1993 are being fixed. We can only hope that prisons, and punishment more generally, are within its remit. How radical an overhaul the system needs isn’t obvious, at least not to me, but it’s certainly time that some proper attention were paid.

“The new measures”, the author continues, “also include a number of small relaxations of the restrictions, whilst encouraging continued compliance, aligned with the Prime Minister’s plan, set out on Sunday 10th May”. In other words, “Boris blathered on about sunbathing the other day and Muggins here has had to do his best.”

Because many of the promised changes aren’t changes at all, and others have been left to languish in the “guidance”, unenacted. This time round, having had six weeks to think about it, they’ve really put the sham into the shambles. Indeed, as part of this much-heralded “relaxation” of the lockdown, not only has the cost of a fixed penalty notice nearly doubled but, for reasons I’ll explain, the way the list of reasonable excuses has been altered could have the effect of tightening the restrictions rather than loosening them.

First though, does the new version of the Regulations allow us to meet up with friends and family? Not really. Little more than we could last week, is the truth of it. Regulation 6(2)(b) has been amended to say that we can now be outside our homes if we have a “need” to take exercise with one member of another household. But that’s always been the position. The unaltered Regulation 7 only prohibits gatherings of more than two people of different households. So if last week you and your friend from another household each had a need to take exercise, and arranged to do so at the same time, and in each other’s company, you would have committed no offence.

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Can they really arrest you for walking the dog?

By Adam King

There has also been a lot of chatter about “getting people back to work” of course. But what changes have been made to the “reasonable excuse” exception that says you can leave home to work, if you can’t work at home? Not a comma.

What about driving long distances? The Government’s 60-page “Our Plan to Rebuild” guidance, released on Monday, informs us that “People may drive to outdoor spaces irrespective of distance”. But there’s nothing about driving in any of the Regulations, amended or unamended. If rural police look askance at your claim to “need” to drive a hundred miles to a National Park you won’t be able to point to any law that corrects them. Boris said so did he, sir? Boris says a lot of things, sir.

Yes, there’s a new provision, at Regulation 6(2)(ba), that says we have a reasonable excuse if we need to (still “need to”, note) “visit a public open space for the purposes of open-air recreation to promote physical or mental health or emotional wellbeing”. So we can now sit down outdoors for longer periods than would have been justifiable as a mere break during exercise. As long as we need to, for recreation, to promote health or “emotional wellbeing”.

What is “recreation” anyway? Most dictionaries, and the one or two appeal reports where judges have considered the term, suggest it requires some sort of enjoyable activity. Does getting smashed and shouting at someone down the phone count? Maybe. Maybe not. It remains a fairly popular activity in these unprecedented times but we’ll just to have to rely on the police and PCSOs to deploy their new powers of force against those they “consider” — rightly or wrongly — to be in breach of these rules with the same even-handedness and sense of proportion they’ve all demonstrated over the last six weeks.

The amendment could have just said that, subject to the rules against gathering in groups, it’s a reasonable excuse to visit an open space, and left it at that. But vagueness and ambiguity tend to operate to the advantage of those who set and enforce the rules. So vagueness and ambiguity it is.

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Boris Johnson and the ravages of office

By Ian Birrell

And it’s a similar story with the other minor amendments to the list of prescribed “reasonable excuses”: using a rubbish dump, collecting goods you’ve ordered, visiting a cemetry to pay respects (these three are all new), doing various things in connection with moving house, and dealing with money (these last two were already on the list but are now more carefully circumscribed).

Adding things to this non-exhaustive list of reasonable excuses might appear to be helpful and expansive, but it has the effect of making the list look more like it’s exhaustive. It was said in 1970, in the nicely named House of Lords case of Sweet v Parsley, “It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted”. There really is no doubt that there’s room for other, off-list reasonable excuses. But you can bet your last gigabyte that many a police officer or Magistrate won’t see it that way. And the longer the list, and the more detailed the items on it, the more likely the ambiguity will be resolved to our disadvantage. They could have said, “includes but is not limited to” of course, like so many other laws do. But instead they kept it vague.

So yes, we can shuffle round Garden Centres again, and even have a game of tennis on one of the “outdoor sports courts” that have been allowed to re-open. These gifts will be welcomed by many, of course. But the restrictions on our liberty have changed much less than recent press conferences have sought to imply, and ambiguities still abound. Proper parliamentary scrutiny of the lockdown laws — which these Statutory Instruments have not had — would be a welcome development next time round.

But whatever your feeling about police tactics, you might be interested to know what the recently enacted law on staying at home actually says, and where the ambiguities are. As irritating experts like to say on  Twitter, “here goes”.

First, the Regulations create a new criminal offence of leaving your home without a reasonable excuse. The maximum sentence is an unlimited fine. The police can offer you a Fixed Penalty Notice instead of prosecuting you, but if they prefer to take you to court – in order to boast about it on Twitter for instance – that’s entirely up to them.

What’s a reasonable excuse? Well, the reasonable excuse defence “includes” 13 listed examples: obtaining basic necessities, taking exercise, helping the vulnerable, and so on. The excuses on the list all begin with “the need to…”, so if you want to rely on a listed reasonable excuse you’ll need to “need to” do that thing as opposed to merely wanting to do it.

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Stay-at-home mums are ready for lockdown

By Mary Harrington

And that’s the first ambiguity: “includes”. Is it an exhaustive list or can you go off-menu for your excuses? The answer is that other excuses are capable of being reasonable excuses but my guess is they didn’t want to advertise the fact. “Includes” on its own is not enough to create a exhaustive list in criminal legislation. But can we currently rely on individual police officers and PCSOs to understand it in that way? Of course not. Visiting a parent terminally ill with cancer, to say goodbye? Not on the list.

What about walking the dog? Well, buying food for him is on the list, but there’s nothing about taking him for a walk, so if that’s your only reason for leaving the house you might have to take your chances at court. One way round this of course is to stretch the dog’s legs at the same time as your own. And there’s nothing to stop a very well-trained dog going for a walk by himself.

How much exercise can you do, and where can you do it? The list of reasonable excuses includes “a need to take exercise” but says nothing about where, how often or for how long. This is where the Guidance on social distancing might come in. The Government’s Guidance says “once a day” and “stay local”, but isn’t part of the law. So if you leave home in order to exercise in the Lake District 30 miles away, you haven’t broken the law provided that you had a “need to take exercise” and that was your reason for leaving. But a lockdown-loving Magistrate could easily interpret “need to take exercise” with reference to the Guidance and find that you had no reasonable excuse.

But as you might have already spotted, the offence only relates to leaving home. Once you’ve left home — with, say, a cast-iron reasonable excuse of delivering paracetamol to a sick friend — could you stop at a park bench on your way back and smoke two or three large cigars? Or if you were an MP delivering essentials to your elderly parents and you stopped for a quick at-a-distance chat, would that be an offence?

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All eyes on the Swedish coronavirus experiment

By Freddie Sayers

On any ordinary reading of the Regulations you could smoke and chat yourself silly, but I wouldn’t be at all surprised if, on an egregious set of facts, a Court took a “purposive” approach and interpreted “leaving your home” as a sort of continuing act so that you would need a reasonable excuse for everything you did elsewhere. (There’s precedent for it in how the courts deal with robbery, if you’re interested).

But the real key to all this lies in the unusually wide powers granted to the police and PCSOs. If an officer “considers” — i.e. believes, rightly or wrongly — that you have left home without a reasonable excuse, they can, if they believe it to be necessary, do any of these three things: give you “reasonable instructions”, tell you to go home, or use reasonable force to get you home. And if you ignore or obstruct any of that, you commit an offence — even if you did actually have a reasonable excuse for leaving home and the officer is badly wrong in thinking you didn’t (perhaps because he or she wrongly believes that there can be no off-list reasonable excuses).

Having said all that, there is one good reason to think a bit of flexibility was envisaged: the inclusion of off-licences in the list of businesses permitted to stay open. Few would argue that alcohol is a basic necessity, but it could, in certain circumstances (a big wedding anniversary perhaps, or just that you’ve run clean out yet again) amount to an off-list reasonable excuse. And if not, perhaps a short detour via the wine shop after delivering medicine is legally permissible after all.

But if a cop tells you to go home, home is where you better go — no matter how wrong about the law or facts he may be — unless you want to risk prosecution or an extra-judicial Twitter shaming. The Metropolitan police under Cressida Dick seem to have maintained a healthy sense of proportion so far. Let’s hope other forces behave similarly. If we’re going to allow police and PCSOs to drag you home when they merely “consider” you to have broken a law, they should be given every possible encouragement to “consider” that law accurately.