For the first time, O’Brien’s listenership has overtaken Ferrari’s. And for those of us who love phone-in programmes, it’s a symbolic moment in the evolution of the format.

I should acknowledge, incidentally, that it’s terribly unfair to bring up Sawyer’s joke. It dates back to 2006, when O’Brien was still struggling to make the transition from showbiz hack to grown-up broadcaster. In those days, you were as likely to find him interviewing Dick and Dom as Ken Clarke. And he wasn’t above a bit of old-fashioned union-bashing; during a 2007 tube strike, he suggested that Londoners retaliate by boycotting the leader of the RMT: “If Bob Crow turns up at your shop, pub, cafe or minicab firm, don’t serve him.” 

His biggest story came in 2009 when he joined in the tabloid baiting of Frank Lampard over his treatment of his ex-girlfriend, only to find the footballer, somewhat enraged, calling in. Lampard gave rather better than he got, though it is possible that he didn’t quite grasp the nature of the phone-in. “Sometimes you should think about things before you speak about them,” he said, which isn’t really how it works.

But O’Brien is more serious than that nowadays. Certainly that’s the view of his bosses. We know this because there’s a simple measure of how a radio station sees its presenters: the calibre of the person chosen to sit in for them when they’re away. In 2004, O’Brien’s cover on Easter Monday was James Hewitt, famous for having committed adultery with Princess Diana; fifteen years later, it was Labour MP Jess Phillips. Much more serious, you see.

The critical moment in his transformation came during the 2014 election campaign for the European Parliament, when he got a chance to interview Nigel Farage, a man he clearly loathed. The Ukip leader had recently remarked that he’d be concerned if a group of Romanian men moved in next door, and O’Brien demanded an explanation. What’s the difference between that situation and a group of German children moving in next door? he asked, and Farage was nonplussed. “You know what the difference is,” he replied, but O’Brien denied any such thing: “I honestly don’t.”

Suggested article

How Farage had the last laugh

By Will Lloyd

He did know. Obviously. Everyone listening knew what Farage was nudging towards. A leader column in the Sun spelt it out: “This is racism, pure and simple: Romanians, he is suggesting, are criminals to be feared.” Indeed he was, and he might reasonably have expected the Sun to be onside, given some of its previous headlines: “Our crime wave is good news for Romania”, “Beasts from the East”, “Capital hit by 28,000 Romanian criminals”.

For the purposes of the interview, it didn’t really matter whether Romanian men were more likely to be criminals than were German children. The point was not to explore the issue, but simply to display open hostility to Farage, and maybe even trap him into saying something overtly racist.

The incident followed in the wake of a celebrated television encounter the previous year, when Eddie Mair (now the host of LBC’s drivetime show) said to Boris Johnson: “You’re a nasty bit of work, aren’t you?” And it was equally effective. Just as Johnson’s career wasn’t arrested by Mair’s rudeness, so Farage — despite claims in the Left-wing newspapers that he’d been “hamstrung”, “skewered”, “humiliated” by O’Brien — went on to lead Ukip to a stunning victory in the Euro-elections.

More from this author

Britain's most offensive comedian

By Alwyn Turner

Since then, O’Brien’s stock has continued to rise, largely because he’s very good at his job. He has a range of tones, from sympathy for callers with tales of suffering, through to patronising sarcasm for those who don’t agree with him. Most common is a shrugging, brow-furrowed resignation about the state of the nation. It’s the result, perhaps, of having been on the losing side of every national vote since his run-in with Frank Lampard, and because it’s not possible to sustain three hours of anger every day. “We are where we are” — that’s his world-weary catchphrase. Or alternatively, after he’s run through the charge-sheet yet again on how the country has let itself down: “And that’s why we are where we are.”

He reserves a good deal of his scorn for the “cap-doffing, forelock-tugging” types who aren’t as articulate as him. But he is at least aware of his own humble place in the pantheon of polite society: “When did you realise you were clever?” he fawningly asked the fox-killing, kimono-wearing celebrity tax-lawyer Jolyon Maugham. He often comes across as sanctimonious, superior and smug, of course, but that’s part of the schtick, integral to his appeal. Because while the tone of more-in-sorrow-than-anger piety may irritate some, it provides a self-righteous safety-blanket for others.

He is, in short, a master of the new media world, one in which opinion and tribal values count for more than a pursuit of the truth, the whole truth and nothing but the truth. In the social-media age, he is one of the finest practitioners of Radio Twitter. Instead of it just being the callers who are opinionated, partisan and given to repetition — as always on a phone-in — the host now adopts the same approach.

And consequently he embodies many of the flaws found on social media.

His political analysis is broad-brush, to put it politely. He has told us so often that Boris Johnson is Britain’s Donald Trump, that the two have eventually blurred into one, and a diatribe against the former is invariably laced with references to the latter. Meanwhile, pretty much everything comes back to Brexit in the end, even ball-tampering in cricket.

Suggested article

How the culture wars came for history

By Dominic Sandbrook

​​In common with many Twitter users, he likes to use hypotheticals against hypocrisy in a can-you-imagine-if-that-were-a-Labour-MP way. It’s a form of whataboutery that sits on the fence — we seldom learn if the response to X’s comments is correct; only that it’d be different if Y had said that — but it does provide an opportunity to attack the newspapers.

And if there’s one thing guaranteed to rile social media it’s the old media on which it still depends entirely. O’Brien has an animus against the Sun, the Daily Telegraph and, particularly, the Daily Mail — though he is quieter about the Express, where he once edited the paper’s gossip column. His anger can lead him into strange territory: critics of the Leveson Report get dismissed as people “bleating about how the government shouldn’t control the press”.

All of this works equally well from the opposite political position, of course. So although he’s the best at it, O’Brien’s not the only one on this tack. Among his rivals, the most convincing for a while was, ironically, Nigel Farage, who had his own show on LBC for three years and who proved — like George Galloway on TalkSport — to be genuinely interested in having an argument with dissenting callers. (After Farage’s departure in 2020, O’Brien tweeted in triumph: “We got our station back.”)

Others have fallen by the wayside. Katie Hopkins in 2017 and Maajid Nawaz this year both lost their LBC shows for Twitter offences. She called for a “final solution” to the problem of terrorism, while he spoke against the Covid vaccine and railed against the “network of fascists who seek a New World Order”. The latter comment seemed to be straying into conspiracist territory, a sometimes unclear but always present danger on social media.

Suggested article

When fake news was harmless fun

By Matthew Sweet

“I don’t do conspiracies,” says O’Brien. “I just don’t.” But he is happy to suggest that democracy is dictated by a small group of press barons — “the non-dom billionaires who installed Boris Johnson in Downing Street” — and even to allude to “the one at the back of the room, pulling all the strings”. Most notoriously, he indulged the patently absurd lies told by Carl “Nick” Beech about VIP paedophile-rings, a conspiracy theory that hurt actual people.

Unless your life was horribly affected by Beech’s fantasies, this is mostly good knockabout fun. But it does lose sight of what used to be the central value of the phone-in show: the way it served as a mass focus-group. O’Brien long since drove away most of those who might not share his views on such subjects as Trump, Johnson, and Brexit, and his show resembles a familiar social media echo chamber.

But there’s no doubt that this is the future of the format in a fractured and partisan world. LBC has decided that the requirement for balance in broadcasting can be made right across the schedule, rather than within any one show, so that each presenter is allowed, indeed encouraged, to be one-sided. This requires a different attitude, which is why O’Brien never really made the grade when presenting Newsnight. It’s also why LBC has — with the exceptions of Eddie Mair and Shelagh Fogarty — not poached presenters from the BBC.

Suggested article

Why the BBC is still selling Savile

By Tanya Gold

If you want the old-fashioned version of the phone-in, where you find out what people are thinking and how public opinion is shifting, then you have to go to the man who was LBC’s number one until last week. Nick Ferrari is just as opinionated — if less predictable in those opinions — yet he allows a far greater diversity among those who get put on air. And he remains courteous to all but the most extreme, giving the impression that he means it when he says, “I want to hear your calls”. But last week’s listening figures suggested a changing of the guard.

Personally, I’m a little saddened by this development, because I do want the old-fashioned version. I’ve been addicted to the phone-in for forty years, ever since I first heard the magnificently irascible Brian Hayes in what is now O’Brien’s slot. But even then there were naysayers. 

“The more I hear commercial radio the more repellent I find it,” the comedian Kenneth Williams noted in his diary, back in 1973, the year LBC became Britain’s first legally approved independent radio station. “The din created by the half-baked talking to the half-educated is horrible.”

Dick promised to make tackling violent crime her priority but the figures tell a very different story: recorded rapes have soared, domestic violence is rising and last year saw the highest ever level of teenage homicides in London (30, compared with 17 in 2020). Last March a vigil for Sarah Everard, raped and murdered by a serving officer, was a PR disaster for the Met, while Dick was forced to defend policing at the Euros 2020 final in July after scenes of violent disorder at Wembley.

The force is currently the subject of two inquiries, one ordered by Dick and the other, announced only a day later, by the Home Secretary, Priti Patel. The latter announcement was hardly a vote of confidence in the review ordered by Dick since both inquiries were prompted by the abduction of Ms Everard. Last week the Met was hit by another round of terrible publicity as a toxic culture of misogyny, racism and homophobia was exposed by the Independent Office for Police Conduct at Charing Cross police station in central London.

The Mayor of London, Sadiq Khan, was said to be “furious” and reported to have put the Commissioner “on notice”. What took him so long? His volte face came only five months after Patel offered Dick an extension to her term without so much as a squeak of protest from Khan. Patel apparently believed that the extension would provide “continuity”, although it’s hard to imagine many Londoners welcoming a continuation of the disasters that have taken place under Dick’s watch.

By the time she was granted an extra two years in September last year, the scandals accumulating around the Met were becoming impossible to ignore. PC Wayne Couzens had been accused of indecent exposure on at least two occasions, the most recent just three days before he murdered Ms Everard, but he wasn’t suspended and was able to use his warrant card to get her into his car. A PC in North London was sacked for using his baton to repeatedly strike a black teenager with learning difficulties who approached him for help after she became separated from her carers. Two Met officers had been charged with taking and sharing photos while guarding a crime scene in another area of north London where two black sisters, Bibaa Henry and Nicole Smallman, had been horrifically murdered. Both officers were jailed at the end of last year.

Last October, it emerged that 326 Met officers and special constables had been accused of domestic abuse between 2017 and 2020, but “no action” was recorded in 265 cases. In a case that says much about the Met’s culture, two female officers who accused a colleague of rape had to wait three years before he faced a misconduct hearing.

In yet another case, reported by the Sunday Times, a senior detective is said to have kept his job despite being found guilty last year of gross misconduct for sexually harassing a woman who called 101 for help after she was mugged. DCI James Mason, who was a DS at the time of the incident in 2011, told the woman, Kristina O’Connor, she was “amazingly hot” and warned her that rejecting an officer’s advances was “frowned upon”. Her robber was never found. Embarrassingly, Mason later worked as a staff officer to Cressida Dick in 2019. O’Connor is now suing the Met for “enabling and normalising” misogyny after Mason was allowed to keep not just his job but his rank.

Suggested reading

Why women fear the police

By Julie Bindel

It is something of an understatement to say that the force has problems with recruitment, training, supervision and disciplinary procedures. What this means is that women in London who report a traumatic experience, such as domestic violence, have no way of knowing whether the officer in front of them is implicated in such behaviour himself.

Dick has talked about every force having the occasional “bad ‘un”, an exceptionally ill-chosen turn of phrase that she used on the very day that Couzens appeared in court for sentencing. It’s a threadbare excuse, entirely discredited now that the IoPC has declared that the incidents at Charing Cross were “not isolated or simply the behaviour of a few bad apples”. What they expose is a permissive culture where misogyny, racism and homophobia are normalised, so much so that decent officers fear blowing the whistle because of the reaction of colleagues, or what it might do to their careers.

Many hoped that the murder of Ms Everard would be a watershed moment in terms of protecting women from sexual violence. But the situation in London has worsened since then, with the number of recorded sexual offences increasing dramatically; they rose from a rolling annual total of 18,608 in March 2021, the month Ms Everard was abducted, to 23,647 in December last year. The rolling 12-month figure for reported rapes increased from 7,479 in March to 8,740 in December, an increase of almost 17%. That’s one every hour, on average, and it hardly suggests that the police in London are effective when it comes to protecting women.

Some observers always doubted whether Dick was the right candidate for the top job. They pointed to her role in a disastrous counterterrorism operation in 2005 that ended in the death of an innocent Brazilian electrician, Jean Charles de Menezes. Dick was cleared of any blame but she was in charge of the operation, a circumstance some believed would block any ambition she had to lead the Met.

Suggested reading

There will always be bad men in the police

By Tom Chivers

In 2014 Dick sanctioned Operation Midland, an investigation prompted by the outlandish claims of a man called Carl Beech. He claimed to have been a child victim of a VIP paedophile ring operating in Westminster. Beech falsely accused a series of public figures before his lies were exposed and he was himself sent to prison for perverting the course of justice. Officers were so taken in by Beech’s claims that they encouraged him to repeat them on TV, his identity disguised as “Nick”. Dick was in charge of supervising the detective who publicly described Beech’s allegations as “credible and true”.

In 2016, Sir Richard Henriques published a damning report on Operation Midland that identified 43 failings by detectives who spent 16 months and more than £2m pursuing Beech’s allegations. Dick’s response to the criticism came in 2018, when she reversed the Met’s policy of believing individuals who report a rape. No one had ever suggested that complaints should not be investigated thoroughly or that detectives should rush a male fantasist into a TV studio before carrying out basic checks on his credibility. But it’s women who have suffered as the bad old days of scepticism have returned, with almost two-thirds of rape cases in London now ending in victim withdrawal.

Suggested reading

The police have a woman problem

By Sarah Ditum

Despite all this, politicians fell over themselves to praise Dick’s credentials when she got the top job. “Cressida’s skills and insight will ensure the Metropolitan police adapt to the changing patterns of crime in the 21st century and continue to keep communities safe across London and the UK,” declared the then Home Secretary, Amber Rudd. No one was more fulsome than Khan: “This is a historic day for London and a proud day for me as mayor”, he gushed. “It was absolutely essential that we found the best possible person to take the Met forward over the coming years and I am confident that we have succeeded.” Khan’s pronouncements often sound performative, and it’s hard to avoid the conclusion that he was excited by the fact that Dick was not just the first woman but the first lesbian to hold the position.

Last summer, another dark cloud brooded over Dick’s head. It originated from the independent inquiry into the murder of Daniel Morgan, a private investigator axed to death in a pub car park in 1987. No one has ever been convicted of the killing, and the Met had previously admitted that corruption undermined the original investigation. The inquiry panel described the force as “institutionally corrupt” and criticised serving officers including Dick, who was accused of obstructing its work and causing delays that added further distress to Morgan’s family. Dick apologised to the family but denied the accusation and insisted, to no one’s surprise, that she was not going to resign.

Whether either of the inquiries currently under way will force Dick out is impossible to predict, given that she refuses to resign almost as often as Boris Johnson. But Londoners deserve better, and there is a bitter irony here. The appointment of the first woman Commissioner has been a failed experiment, exposing the urgent need for a Macpherson-style inquiry into misogyny within her own force.

There is, however, perhaps no other author who catches so keenly the confusion and distress of individuals who have lost all confidence — and sense of their own rights — in a system that appears to be operating according to its own unknowable rules, which are riddled with failings so familiar that they are now factored into expectations.

More from this author

Don't let Brexit become the next Troubles

By Jenny McCartney

The Trial, in particular, is acutely relevant to our current age, in which our criminal justice system — once internationally renowned — is in a deepening state of crisis. Meanwhile, away from courts, informal ‘trials’ with inconstant rules and outcomes have become a frequent feature of both social media and company policy.

These latter ‘trials’ — although they lack legal force — nonetheless have the power to ruin a life: to destroy an individual’s reputation, to sink current and future prospects of employment, and in some especially bleak cases to push those involved towards suicide.

The Trial, written in 1914-15 and first published posthumously in 1925, begins with the line: “Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning.” Thereafter, K. finds himself immersed in an interminable and terrifyingly hazy case in which he is the defendant. There is something particularly chilling about such an opening line, because precisely the type of event it describes is familiar from immediate UK history.

More from this series

The town that should shame our politicians

By Paul Embery

The fantasist and paedophile Carl Beech has recently been jailed for perverting the course of justice — “telling lies,” indeed — by falsely alleging that a string of public figures were involved in a paedophile ring reportedly characterised by rape, torture and murder. Beech’s testimony was given weight by the senior police officer in charge of the investigation who declared his evidence “credible and true” on national television without awaiting the outcome of the ongoing investigation.

In the face of Beech’s unsubstantiated accusations, a lifetime of service to the state apparently counted for nothing. One of those accused by Beech was Field Marshal Lord Bramall, a hero of D-Day, who, in a searing recent interview with Dominic Lawson, described the circumstances of discovering that he was a suspect in an ongoing investigation.

He was having breakfast in March 2015 with his late wife Avril, who was then in the advanced stages of Alzheimer’s disease, when two police officers arrived at the door. They said: “Accusations have been made.” He asked: “Against whom?” They answered: “Against you.” In Lord Bramall’s words:

“All they would tell me was that 40 years ago I had abused an underage male. And at that moment they showed me a warrant, and 20 policemen in overalls came in and they searched this house for 10 hours.”

His lawyer later found out the charges, which included the most lurid accusations, such as “supervising the torture of small boys on Salisbury Plain”.

Suggested reading

Why women are Carl Beech's real victims

By Joan Smith

Lord Bramall lived long enough to see Beech imprisoned, although his distressed wife did not. Nor did Leon Brittan, the former Home Secretary: he died of cancer before hearing that his name had been cleared.

Paedophiles do exist, of course, and so do paedophiles in positions of public trust. Allegations from complainants need to be properly investigated. What distinguished the Carl Beech case from other cases – what made it worthy of a Kafka plot – was the willingness of the police to court publicity while openly abandoning due process and the essential principle of ‘innocent until proven guilty.’

Those caught up in Operation Midland had both the misfortune and the good luck that it unfolded in the public eye. Misfortune, because their status amplified the pain and shame of being stained with such appalling allegations, and good luck because it ensured that the case was at least subjected to press scrutiny and their exoneration was decisively publicised.

Yet it begs the question: how many more injustices are routinely pursued, largely unseen, against those who have few resources with which to counter them? The protections of our criminal justice system have long been intended to guarantee that all accused are treated equally in the eyes of the law. But those protections have been steadily eroded on a number of fronts. Kafka’s imagined world creeps ever closer.

Suggested reading

The trial of Danny Baker

By Eric Kaufmann

In January this year, The Law Society submitted a parliamentary briefing on a “criminal justice system in crisis”, which it argues has been caused by “years of underinvestment and neglect”. The challenges it cited included increasing shortages of duty solicitors; a restrictive means test for legal aid; inefficiencies in the system; more and more courts being closed; and crucial evidence often not being disclosed.

To take but a single example, the role of criminal duty solicitor – the person you can call for professional advice if you are being held in a police cell – is now so badly paid that younger lawyers are refusing to go into it. The youngest duty solicitor on the Isle of Wight is now 55 years old. She is understandably concerned about what happens to the rights of suspects once she retires.

The rates that criminal barristers are paid for undertaking legal aid cases are often less than £100 for a day’s work, out of which they must pay travel costs and fees to chambers. Many are finding that – despite an extensive education, for which they have usually incurred sizeable debts, and working long hours – they cannot afford even a modest mortgage out of their professional salary.

Young barristers are therefore leaving crime work in their droves for commercial or corporate practice. There is no area of the law in which the stakes for the individuals concerned are so high; yet those lawyers who remain in criminal law see cases being postponed and court buildings and their machinery crumbling.

Suggested reading

I'm sick of fighting moronic culture wars

By Lionel Shriver

It is impossible to avoid the suspicion that the ongoing underpayment of criminal barristers and solicitors, the degradation of the infrastructure in which they operate, and the squeezing of public access to legal aid itself, is driven by an unspoken but resolute political intent. In one passage in The Trial, Kafka describes the surreal and miserable conditions in which the Advocates (those who represent defendants) work:

“It wasn’t saying too much if the Advocates called these conditions scandalous. Complaints to the authorities had not the slightest effect, and it was also strictly forbidden for the Advocates to make any structural repairs or alterations at their own expense.”

The narrative voice offers the reasoning for this situation:

 “Still, there was some justification for this attitude on the part of the authorities. They wanted to discourage defending counsel as much as possible, the whole onus of the Defence must be laid on the accused himself.”

Does this sound a fanciful translation from fiction, if applied to our current circumstances? Perhaps not when one considers a policy that is already in place, dubbed ‘the innocence tax’. Those who are above the threshold of legal aid funding – in the magistrates’ courts, anyone with an annual household income of £22,325, and in the crown court, above £37,500 of disposable household income – are currently compelled to fund their own defence privately, often at a considerably higher rate than legal aid fees.

Should they then be acquitted, however, the government will only reimburse them at legal aid rates (a deliberate policy: before 2012, they were allowed to claim back “reasonable costs”). This can leave people, after acquittal, with a large outstanding fee which in some cases has led to bankruptcy or the loss of life savings.

More from this author

Test article

By Jenny McCartney

The former Commons deputy speaker Nigel Evans experienced this personally, when he was acquitted of charges of rape and sexual abuse but lost his life savings in the fight to clear his name. He has since said:

“People don’t see people like me as victims, and there’s a sense that it could not happen to them. That’s what I thought too, but it’s completely wrong. There’s nothing easier than someone falsely accusing you of a crime.”

It has long been accepted that if one has the misfortune to be wrongly accused of a crime, a conviction is disastrous. Now, thanks to the ‘innocence tax’, so too might be the aftermath of acquittal.

Our legal system is the ultimate guarantor of individual liberty. It should be the last line of protection against the arbitrary persecution of the state, individual malice, and the passing mores or prejudices of wider society. The law should be broadly immune to contagious emotions or fashionable ideology.

Today, legal independence seems more necessary than ever, as the shifting traps of judgement and taste that are laid by social media – the complex blurring of private and public life – can have life-altering consequences for the unwary.

In June this year, for example, a 54-year-old disabled grandfather, Brian Leach, was fired from his job at Asda for posting an anti-religious skit – which mocked both Christianity and Islam – by the comedian Billy Connolly on his Facebook page. Asda, which itself sells Billy Connolly DVDs, said that he had breached the company’s social media policy. Leach was summarily dismissed, despite having deleted the post and apologised for any potential offence to colleagues.

More from this series

Tolkien's guide to contemporary politics

By Peter Franklin

That the behaviour of the police can also be influenced by perceived public mood was evidenced by Operation Midland: it is widely thought that the misplaced eagerness to find Beech’s testimony “credible and true” was in part a reaction to the bad publicity generated by the acknowledged previous failure of the police themselves to investigate sexual abuse allegations properly in relation to Jimmy Savile and others.

Recently the police also appear to be taking a worryingly keen interest in patrolling lines of opinion and argument – resulting, for example, in a bizarre case being brought earlier this year by West Yorkshire police, Essex police and the CPS against Miranda Yardley, a self-identified transsexual, for ‘harassment’ allegedly motivated by ‘transphobia’. It is worth noting that while Yardley, the defendant, was and is transsexual, the complainant was not trans, but a ‘trans ally’: the origin of the complaints was a spat on social media.

District Judge John Woollard dismissed the case against Yardley in a one-day hearing, saying there was simply no evidence, and awarding costs to the defence. In his blunt summary: “There is no case and never was a case,” something that neither the police nor the CPS were apparently able to perceive within a ten-month investigation.

Suggested reading

Who will resist the great awokening?

By Eric Kaufmann

Meanwhile another recent development has been worrying solicitors, who witness clients increasingly trapped – like the unfortunate Josef K. – in a legal limbo without apparent end: the rapid rise of the phenomenon of ‘released under investigation’ (RUI). Criticism of the pre-charge bail system – in which suspects were endlessly bailed and re-bailed without their case being resolved – led to bail being widely replaced with RUI.

This is arguably much worse: unlike with bail, there are no fixed calendar dates whereby suspects can discover the progress of their case. Instead, a suspect’s relationships, studies or career must be placed on hold while the case stagnates or inches forward. The suspect will be notified at some point of the case’s direction, but he or she will have no idea of exactly when that might be, and nor are the under-resourced police under any formal obligation to tell them within a given time-frame.

When the Law Society Gazette ran an article on RUI recently, anonymous solicitors spoke below the line of their own experiences. One read: “I’ve had one client RUI for 25 months and counting and the case is not yet even at the stage of being sent to the CPS for a charging decision. That will be a minimum of another four months, so the case might yet break the three year mark in due course.” It goes without saying that such delays also grievously affect the lives of complainants.

More from this author

The woman who haunts the IRA

By Jenny McCartney

For those of us who are not routinely involved with the criminal justice system, such stories crop up troublingly and drift away again. They do not touch our lives – until one day, perhaps, they do indeed affect us or our loved ones, with catastrophic consequences.

Yet something is going profoundly awry with the justice system in the UK, and if it is not understood and addressed as a coherent picture – which it is – it will have deeply corrosive and long-lasting effects. Start, if you like, with reading or re-reading The Trial, and then listen out for its many echoes today.

Those echoes keep on coming, right up until the miserable moment of Josef K.’s death. Two men in frock coats and top hats come for him eventually, officials of the state with malign intent, and K. asks himself: “Where was the Judge whom he had never seen? Where was the High Court to which he had never penetrated?”

One man holds him down, one stabs him, and then K. watches them watching him die: “’Like a dog!’ he said: it was as if he meant the shame of it to outlive him.”

Suggested reading

How we warp our moral code for genius

By Douglas Murray

Well, we must all be wary of hysteria and exaggeration. Frock-coated officials are certainly not stabbing suspects to death in the UK today. Yet still those stubborn little echoes persist – “like a dog!”.

An inquest jury concluded this July that the death of Rafal Sochacki, a 43-year-old Polish national, on 21 June 2017, was most likely due to him being subjected to excessive heat. Sochacki had been arrested on an extradition warrant and was being transported in a prisoner-escort services van, a task outsourced to the private company Serco, on one of the hottest days in central London for over 40 years.

The van stopped outside Charing Cross police station, holding Sochacki in a cell inside the vehicle for 50 minutes with the engine and air conditioning turned off. He was then taken to court at 10am, soaked in sweat, and put into a very hot, unventilated cell: the air conditioning at the court had not worked for weeks, and mobile air-conditioning units were proving ineffective.

Rather like K., in fact, he never got to see the judge or the court. Having been noted as behaving oddly and erratically, he was finally found unresponsive in his cell at 2.45pm, having died of severe heatstroke and hypertensive heart disease.

And it is strange, because when I read about the circumstances of Sochacki’s death, my very first thought was that there might have been a greater public outcry if a dog had been treated in this way.

Kafka, like Orwell and Dickens, belongs to that select band of authors whose name has become an adjective. “Kafkaesque” is a term most often used to describe an overweening bureaucracy or system that traps an unwitting individual in an illogical, nightmarish maze, governed by complex forces beyond his or her control. I suspect that as Kafka is more widely and heavily evoked as an adjective, the detail of what he wrote is less frequently considered. We think we know what he says. We’ve got the gist.

There is, however, perhaps no other author who catches so keenly the confusion and distress of individuals who have lost all confidence – and sense of their own rights – in a system that appears to be operating according to its own unknowable rules, which are riddled with failings so familiar that they are now factored into expectations.

More from this author

Who takes advantage of disadvantage?

By Jenny McCartney

The Trial, in particular, is acutely relevant to our current age, in which our criminal justice system – once internationally renowned – is in a deepening state of crisis. Meanwhile, away from courts, informal ‘trials’ with inconstant rules and outcomes have become a frequent feature of both social media and company policy.

These latter ‘trials’ – although they lack legal force – nonetheless have the power to ruin a life: to destroy an individual’s reputation, to sink current and future prospects of employment, and in some especially bleak cases to push those involved towards suicide.

The Trial, written in 1914-15 and first published posthumously in 1925, begins with the line: “Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning.” Thereafter, K. finds himself immersed in an interminable and terrifyingly hazy case in which he is the defendant. There is something particularly chilling about such an opening line, because precisely the type of event it describes is familiar from immediate UK history.

More from this author

How social media is creating dangerous legal precedents

By Jenny McCartney

The fantasist and paedophile Carl Beech has recently been jailed for perverting the course of justice – “telling lies,” indeed – by falsely alleging that a string of public figures were involved in a paedophile ring reportedly characterised by rape, torture and murder. Beech’s testimony was given weight by the senior police officer in charge of the investigation who declared his evidence “credible and true” on national television without awaiting the outcome of the ongoing investigation.

In the face of Beech’s unsubstantiated accusations, a lifetime of service to the state apparently counted for nothing. One of those accused by Beech was Field Marshal Lord Bramall, a hero of D-Day, who – in a searing recent interview with Dominic Lawson – described the circumstances of discovering that he was a suspect in an ongoing investigation.

He was having breakfast in March 2015 with his late wife Avril, who was then in the advanced stages of Alzheimer’s disease, when two police officers arrived at the door. They said: “Accusations have been made.” He asked: “Against whom?” They answered: “Against you.” In Lord Bramall’s words:

“All they would tell me was that 40 years ago I had abused an underage male. And at that moment they showed me a warrant, and 20 policemen in overalls came in and they searched this house for 10 hours.”

His lawyer later found out the charges, which included the most lurid accusations, such as “supervising the torture of small boys on Salisbury Plain”.

Suggested reading

Why women are Carl Beech's real victims

By Joan Smith

Lord Bramall lived long enough to see Beech imprisoned, although his distressed wife did not. Nor did Leon Brittan, the former Home Secretary: he died of cancer before hearing that his name had been cleared.

Paedophiles do exist, of course, and so do paedophiles in positions of public trust. Allegations from complainants need to be properly investigated. What distinguished the Carl Beech case from other cases – what made it worthy of a Kafka plot – was the willingness of the police to court publicity while openly abandoning due process and the essential principle of ‘innocent until proven guilty.’

Those caught up in Operation Midland had both the misfortune and the good luck that it unfolded in the public eye. Misfortune, because their status amplified the pain and shame of being stained with such appalling allegations, and good luck because it ensured that the case was at least subjected to press scrutiny and their exoneration was decisively publicised.

Yet it begs the question: how many more injustices are routinely pursued, largely unseen, against those who have few resources with which to counter them? The protections of our criminal justice system have long been intended to guarantee that all accused are treated equally in the eyes of the law. But those protections have been steadily eroded on a number of fronts. Kafka’s imagined world creeps ever closer.

Suggested reading

The trial of Danny Baker

By Eric Kaufmann

In January this year, The Law Society submitted a parliamentary briefing on a “criminal justice system in crisis”, which it argues has been caused by “years of underinvestment and neglect”. The challenges it cited included increasing shortages of duty solicitors; a restrictive means test for legal aid; inefficiencies in the system; more and more courts being closed; and crucial evidence often not being disclosed.

To take but a single example, the role of criminal duty solicitor – the person you can call for professional advice if you are being held in a police cell – is now so badly paid that younger lawyers are refusing to go into it. The youngest duty solicitor on the Isle of Wight is now 55 years old. She is understandably concerned about what happens to the rights of suspects once she retires.

The rates that criminal barristers are paid for undertaking legal aid cases are often less than £100 for a day’s work, out of which they must pay travel costs and fees to chambers. Many are finding that – despite an extensive education, for which they have usually incurred sizeable debts, and working long hours – they cannot afford even a modest mortgage out of their professional salary.

Young barristers are therefore leaving crime work in their droves for commercial or corporate practice. There is no area of the law in which the stakes for the individuals concerned are so high; yet those lawyers who remain in criminal law see cases being postponed and court buildings and their machinery crumbling.

Suggested reading

The dangers of post-truth journalism

By Douglas Murray

It is impossible to avoid the suspicion that the ongoing underpayment of criminal barristers and solicitors, the degradation of the infrastructure in which they operate, and the squeezing of public access to legal aid itself, is driven by an unspoken but resolute political intent. In one passage in The Trial, Kafka describes the surreal and miserable conditions in which the Advocates (those who represent defendants) work:

“It wasn’t saying too much if the Advocates called these conditions scandalous. Complaints to the authorities had not the slightest effect, and it was also strictly forbidden for the Advocates to make any structural repairs or alterations at their own expense.”

The narrative voice offers the reasoning for this situation:

 “Still, there was some justification for this attitude on the part of the authorities. They wanted to discourage defending counsel as much as possible, the whole onus of the Defence must be laid on the accused himself.”

Does this sound a fanciful translation from fiction, if applied to our current circumstances? Perhaps not when one considers a policy that is already in place, dubbed ‘the innocence tax’. Those who are above the threshold of legal aid funding – in the magistrates’ courts, anyone with an annual household income of £22,325, and in the crown court, above £37,500 of disposable household income – are currently compelled to fund their own defence privately, often at a considerably higher rate than legal aid fees.

Should they then be acquitted, however, the government will only reimburse them at legal aid rates (a deliberate policy: before 2012, they were allowed to claim back “reasonable costs”). This can leave people, after acquittal, with a large outstanding fee which in some cases has led to bankruptcy or the loss of life savings.

Suggested reading

The danger of digital strip searches

By Timandra Harkness

The former Commons deputy speaker Nigel Evans experienced this personally, when he was acquitted of charges of rape and sexual abuse but lost his life savings in the fight to clear his name. He has since said:

“People don’t see people like me as victims, and there’s a sense that it could not happen to them. That’s what I thought too, but it’s completely wrong. There’s nothing easier than someone falsely accusing you of a crime.”

It has long been accepted that if one has the misfortune to be wrongly accused of a crime, a conviction is disastrous. Now, thanks to the ‘innocence tax’, so too might be the aftermath of acquittal.

Our legal system is the ultimate guarantor of individual liberty. It should be the last line of protection against the arbitrary persecution of the state, individual malice, and the passing mores or prejudices of wider society. The law should be broadly immune to contagious emotions or fashionable ideology.

Today, legal independence seems more necessary than ever, as the shifting traps of judgement and taste that are laid by social media – the complex blurring of private and public life – can have life-altering consequences for the unwary.

In June this year, for example, a 54-year-old disabled grandfather, Brian Leach, was fired from his job at Asda for posting an anti-religious skit – which mocked both Christianity and Islam – by the comedian Billy Connolly on his Facebook page. Asda, which itself sells Billy Connolly DVDs, said that he had breached the company’s social media policy. Leach was summarily dismissed, despite having deleted the post and apologised for any potential offence to colleagues.

Suggested reading

Don't be afraid of the digital dustbin

By Sam Leith

That the behaviour of the police can also be influenced by perceived public mood was evidenced by Operation Midland: it is widely thought that the misplaced eagerness to find Beech’s testimony “credible and true” was in part a reaction to the bad publicity generated by the acknowledged previous failure of the police themselves to investigate sexual abuse allegations properly in relation to Jimmy Savile and others.

Recently the police also appear to be taking a worryingly keen interest in patrolling lines of opinion and argument – resulting, for example, in a bizarre case being brought earlier this year by West Yorkshire police, Essex police and the CPS against Miranda Yardley, a self-identified transsexual, for ‘harassment’ allegedly motivated by ‘transphobia’. It is worth noting that while Yardley, the defendant, was and is transsexual, the complainant was not trans, but a ‘trans ally’: the origin of the complaints was a spat on social media.

District Judge John Woollard dismissed the case against Yardley in a one-day hearing, saying there was simply no evidence, and awarding costs to the defence. In his blunt summary: “There is no case and never was a case,” something that neither the police nor the CPS were apparently able to perceive within a ten-month investigation.

Suggested reading

Who will resist the great awokening?

By Eric Kaufmann

Meanwhile another recent development has been worrying solicitors, who witness clients increasingly trapped – like the unfortunate Josef K. – in a legal limbo without apparent end: the rapid rise of the phenomenon of ‘released under investigation’ (RUI). Criticism of the pre-charge bail system – in which suspects were endlessly bailed and re-bailed without their case being resolved – led to bail being widely replaced with RUI.

This is arguably much worse: unlike with bail, there are no fixed calendar dates whereby suspects can discover the progress of their case. Instead, a suspect’s relationships, studies or career must be placed on hold while the case stagnates or inches forward. The suspect will be notified at some point of the case’s direction, but he or she will have no idea of exactly when that might be, and nor are the under-resourced police under any formal obligation to tell them within a given time-frame.

When the Law Society Gazette ran an article on RUI recently, anonymous solicitors spoke below the line of their own experiences. One read: “I’ve had one client RUI for 25 months and counting and the case is not yet even at the stage of being sent to the CPS for a charging decision. That will be a minimum of another four months, so the case might yet break the three year mark in due course.” It goes without saying that such delays also grievously affect the lives of complainants.

More from this author

The woman who haunts the IRA

By Jenny McCartney

For those of us who are not routinely involved with the criminal justice system, such stories crop up troublingly and drift away again. They do not touch our lives – until one day, perhaps, they do indeed affect us or our loved ones, with catastrophic consequences.

Yet something is going profoundly awry with the justice system in the UK, and if it is not understood and addressed as a coherent picture – which it is – it will have deeply corrosive and long-lasting effects. Start, if you like, with reading or re-reading The Trial, and then listen out for its many echoes today.

Those echoes keep on coming, right up until the miserable moment of Josef K.’s death. Two men in frock coats and top hats come for him eventually, officials of the state with malign intent, and K. asks himself: “Where was the Judge whom he had never seen? Where was the High Court to which he had never penetrated?”

One man holds him down, one stabs him, and then K. watches them watching him die: “’Like a dog!’ he said: it was as if he meant the shame of it to outlive him.”

Suggested reading

How we warp our moral code for genius

By Douglas Murray

Well, we must all be wary of hysteria and exaggeration. Frock-coated officials are certainly not stabbing suspects to death in the UK today. Yet still those stubborn little echoes persist – “like a dog!”.

An inquest jury concluded this July that the death of Rafal Sochacki, a 43-year-old Polish national, on 21 June 2017, was most likely due to him being subjected to excessive heat. Sochacki had been arrested on an extradition warrant and was being transported in a prisoner-escort services van, a task outsourced to the private company Serco, on one of the hottest days in central London for over 40 years.

The van stopped outside Charing Cross police station, holding Sochacki in a cell inside the vehicle for 50 minutes with the engine and air conditioning turned off. He was then taken to court at 10am, soaked in sweat, and put into a very hot, unventilated cell: the air conditioning at the court had not worked for weeks, and mobile air-conditioning units were proving ineffective.

Rather like K., in fact, he never got to see the judge or the court. Having been noted as behaving oddly and erratically, he was finally found unresponsive in his cell at 2.45pm, having died of severe heatstroke and hypertensive heart disease.

And it is strange, because when I read about the circumstances of Sochacki’s death, my very first thought was that there might have been a greater public outcry if a dog had been treated in this way.