Every so often I write a post whose main purpose is to be a reminder that social media (including many non-conventional data forms) is both disclosable as a formal matter and potentially vital as a generally incontrovertible source of contemporaneous record.
The last few days have brought us several examples of dishonesty in law and politics. We have had the most eloquent judicial criticism of dishonesty I have ever seen in a civil case – nothing to do with social media, just an old-fashioned exercise of judicial credibility in the face of oral evidence which was beyond belief from witnesses whose demeanour failed to impress. We have had a reminder that the UK Ministry of Justice and its ministers have retained the idea, inherited from the fluently dishonest Chris Grayling, that truth is one of those luxuries, like functioning courts and an adequate supply of judges, which is easily dispensed with in hard times. We have also had a former junior justice minister refer to mounting volumes of evidence as “useless guff from social media”, saying this without any obvious self-awareness during a speech in which he criticised lawyers as “technologically-illiterate”. I will come on to him below.
Disclosure in criminal proceedings
My primary concern is civil disclosure, straying into the criminal side of things only where regulatory breach or large fraud warrants (and can afford) the expense and other implications of managing electronic disclosure.
There are, of course, cross-overs between the civil and criminal jurisdictions. I come across the latter mainly because I follow several criminal barristers on Twitter. Even if I did not, the mainstream news increasingly reports cases of disclosure defects, usually in the context of a failure by the Crown Prosecution Service to disclose documents and data which would either have secured an acquittal in criminal cases or would have made it obvious to an honest prosecuting authority long before trial that the defendant was innocent.
Some of the disclosure failures can properly be attributed to budget cuts affecting the police, the CPS and the courts. Some of it follows from an assumption by some prosecutors that their duty is to obtain convictions by any means, that the presumption of innocence means nothing, and that the withholding of disclosure is a legitimate tactic. Alison Saunders, outgoing head of the CPS, is plainly unfit to hold that position, but it is hard to tell whether that is because she is incompetent or whether she is convinced that all is fair in the prosecution “game” as long as she hits her convictions target.
Dishonesty is the best policy in the politics of justice
Similarly, it is hard to tell whether the Conservative government has run down justice because it is a soft touch in budget terms, because criminals don’t vote Conservative, because Conservative voters approve of harshness towards criminals, or because criminal barristers are easily stigmatised as “fat cats” if you don’t mind lying about their incomes as Lucy Frazer QC MP, Parliamentary Under-Secretary of State in the Ministry of Justice, did on the radio last week.
Although Frazer can’t plead stupidity (she was a commercial QC), it is not clear whether some of the other people responsible for justice at a government level are stupid, dishonest or malignant – Chris Grayling displayed all three of these qualities, for example, when he was in charge of Justice.
The subject, and its overlap with electronic disclosure, comes up because of a speech by Jonathan Djanogly, a former MOJ junior minister in Grayling’s time. In that capacity, Djanogly was fond of repeating the idea that “we have the most one of most expensive legal aid systems in the world”. This line was peddled enthusiastically by the MoJ and by Grayling. They knew it to be untrue; they knew also, as Lucy Frazer (QC and all that) did as she lied about barristers’ incomes on the radio, that corrections would never catch up with the falsehood.
Lucy Frazer went on to say that people were choosing to represent themselves in criminal proceedings. As one barrister said “This is what the Ministry of Justice does to politicians”.
Useless guff from Jonathan Djanogly about social media evidence
Djanogly’s speech was primarily a criticism of solicitors providing legal aid services. Uninhibited by his own role in cutting the fee income of such firms, Djanogly described them as a “fractured 19th-century legal services marketplace” and said this:
I recall trying to persuade criminal defence solicitors to take prosecution evidence online rather than in paper bundles, but the resistance was ferocious.
Why? Because large numbers of solicitors were running their small practices from their homes and could not afford to invest in the required technology.
That type of inefficiency also goes to the Bar, with advocates often getting court papers late, which may have worked for the single lever arch file deposited in times gone by, but with not the online data dump that can now be sent.
This is the point at which one wonders whether Djanogly is maliciously dishonest or just thick. The delivery of documents and other evidence is primarily the responsibility of the CPS, and it is CPS failures which mean that defence lawyers get disclosure late if at all. Such an approach to disclosure would not be tolerated in the civil courts.
The main point which caught my eye from Djanogly’s speech was this sentence:
Yes, we have more data than ever before, but charging to read it on a per page basis is simply outdated. Most of the extra data is useless guff from, say, social media.
That, you thick, thick little man, is because most of the evidence these days is derived from social media. Photographs, Facebook posts, text messages, chat and location data do not merely exceed conventional forms of data numerically, they are often qualitatively much more valuable.
As if to rub home the point, the day after the report of Djanogly’s speech brought us a report about a young man acquitted of rape “after the Crown Prosecution Service failed to hand over thousands of Facebook messages belonging to the alleged teenage victim”.
I see several tweets like this each week, in addition to the well-documented cases, like that of Liam Allen, widely reported in the mainstream press, where the police had (and knew they had) possession of 40,000 text messages of the complainant which would have exonerated Allen.
It works the other way, as well, with people being convicted on the strength of contemporaneous social media messages; we were given as example of kidnappers, one of whom had sent a text message to a girl boasting of their exploits. “The faces in the dock were a picture” apparently, when that came to light.
The normalisation of dishonesty
The normalisation of dishonesty has come at us very quickly and, paradoxically, just as social media has given us access to more contemporaneous data than ever. Before Boris Johnson’s appointment, it would have been unthinkable to say in terms that the Foreign Secretary is deliberately dishonest; Johnson doesn’t even attempt to deny it. Before Grayling, it would have been a resignation matter for a Lord Chancellor to lie once, let alone do it as a matter of course; now a junior minister (with QC after her name) cheerfully gives out statistics about barristers’ pay which she knows to be false. It would once have been unthinkable that the office of Director of Public Prosecutions should be held by someone of the low calibre of Alison Saunders, but that the DPP should so casually accept that the police and the CPS wilfully conceal evidence is beyond belief even now.
A festival of mendacity
This week’s judgment of Mr Justice Turner in Rashid v Munir & Ors is very much one for our times, as you would conclude from the words “a festival of mendacity” in the first sentence. Other eloquent examples include:
“details of the operation and profitability of [the relevant business] were but lightly touched upon in the tax returns of the defendants”.
The judge had found that the evidence of the main parties was “utterly dishonest” and said of the claimant “I do not believe him on this or indeed any other material matter.”
The second defendant was “egregiously dishonest…in his evidence [and] was…as heroically dishonest as he is in his everyday life.”
The third defendant “regards telling the truth as simply no more than a lifestyle choice.”
“each witness is attempting to outdo the other in a rich display of competitive dishonesty.”.
All good stuff. Reading it, however, I realised that almost every one of the quotations above could be applied to Grayling, Johnson and the rest. Boris Johnson might adopt the words “Festival of Mendacity” as the motto on his coat of arms. “Competitive dishonesty” might describe the pursuit of convictions by police and CPS by deliberately suppressing or ignoring potentially vital evidence. I wonder what words Mr Justice Turner would come up with if given the opportunity to pass judgment on our politicians.
The value of social media as evidence
In the middle of all this, an obviously dim ex-minister refers to “useless guff from social media”. In politics, it is social media which corrects ministerial falsehoods within minutes of their being uttered; in crime it is social media which, every week at the moment, negatives false evidence and saves people from prison; it is social media in its widest sense which offers the best contemporaneous evidence of people’s plans, actions, locations and conversations.
There is too much of it, and much of it is deliberately wrong. It is the job of lawyers to sort the relevant from the irrelevant and to distinguish between that which is true and that which is false. The bigger civil cases have access to technology to help them do this, but today’s homily (well, rant, if you prefer) is about the importance of social media and other non-conventional sources of data in cases of all types. Don’t listen to village idiot Jonathan Djanogly, but take this from US forensic expert Craig Ball:
Depending upon your point-of-view, it’s wonderful or terrifying; but, the one thing it will certainly be is probative, discoverable evidence. There has never been a better time to be a trial lawyer in terms of the richness, variety and accuracy of evidence to help us establish the facts. If you are a lawyer who cares about getting the facts right, rejoice!
Craig Ball was really talking here about the Internet of Things (the quotation comes from his article The Internet of Things Meets the Four Stages of Attorney E-Grief) but his words apply to all forms of electronic evidence.
For the moment at least, there seems little to be done to restore honesty to politics in the UK or anywhere else. Born liars like Grayling and Johnson will continue to say things which they know to be untrue, indifferent to the ease with which others can call them out on it. We may be able to improve criminal disclosure now the mainstream press is running with the stories, at least once the appallingly useless Alison Saunders has gone. Judges will continue to rely on their impressions of witnesses as well as on contradictions inherent in their evidence and in contemporaneous documents (including “guff from social media”).
Meanwhile, in the civil proceedings, the regulatory investigations, the compliance audits, the high-end fraud cases, and the internal investigations which are the main subjects of this blog, we plod on, doing our best to comply with rules, searching everywhere we should, and retrieving everything we should, while being proportionate in our disclosure / discovery.
As you high-end civil litigators complain about the burden of discovery / disclosure, spare a thought for those who work in the underfunded criminal justice system. Picture a defence lawyer who manages to drag disclosure out of an unwilling prosecution the night before a trial on which liberty may turn, and who has to review thousands – sometimes tens of thousands – of messages in a hurry, at pay rates which range from derisory to non-existent. Have sympathy too for the prosecution lawyers – leaving aside those who deliberately ignore or conceal documents, there are hard-working police and lawyers who do their best in an environment where funding is tight and the work-load unremitting, and where the tone is set by the likes of Alison Saunders and by ministers who regard “telling the truth as simply no more than a lifestyle choice” as Turner J said of the parties in the Rashid case.