Boris Johnson and his friends remind us of the link between political dishonesty and eDiscovery

When an investigation was announced into the grant made to Boris Johnson’s friend Jennifer Arcuri, I rather assumed that we would shortly hear of missing documents. And so we did. As everyone mocked the elaborate stories told by Boris Johnson’s consigliere Dominic Cummings about his drive to Durham, I recalled another story involving the tracking of a Land Rover Discovery. That journey involved one person being killed with a crossbow; we will never find out how many people the virus-infected Cummings killed with his trip. In both cases, politics and discovery overlapped.

We are short of amusement in these difficult times, but we got some light relief recently when a story resurfaced from last year. Prime Minister Boris Johnson asserted in November 2019 that he had never told a lie in his political career. His life, political and otherwise, has in fact been defined by dishonest assertions, from his days as a journalist in Brussels (when he invented so many of the EU stories which led the less thoughtful of the Telegraph readers to vote Leave), via the Vote Leave campaign itself, on through the lockdown press conferences, and right through to Prime Minister’s Questions last week.

Discovery comes into it, or will do so, in both specific cases and generally. In the wider field, there will in due course be public inquiries into (among other things) the Garden Bridge, the whole conduct of Vote Leave (and specifically into the report on Russian influence in the referendum), the Jennifer Arcuri affair, and the conduct of the Covid-19 reaction. All it needs is for Johnson’s party to turn on him – this will be about a week after the coronavirus dies down so that they can blame him for it without having to handle the problem themselves. The inquiries will flush out some interesting documents which will be used to test Johnson’s assertions, both those made contemporaneously with the events in question and those made in the inquiries. I may book front row seats

Two recent subjects raise more specific discovery points. One concerns the public money paid to Johnson’s pole-dancing IT teacher Jennifer Arcuri; the other is about the trip to Durham made by Johnson’s puppet-master Dominic Cummings.

It was unsurprising that no-one believed Boris Johnson’s assertions that no personal impropriety occurred between him and Jennifer Arcuri, and his claim that his visits to her flat were solely for IT lessons. It was not just that Johnson lies by default or that the story was inherently improbable. Arcuri seemed happy to portray herself as a fun-loving girl. The pictures of herself which she seemed happy to circulate showed her as either sultry or under-dressed – not how I would promote my business, but it seemed to suit her. She was, as Zoe Williams said in this article, “doing what it says on her tin”.

It won her the attentions of the lazy, priapic London Mayor. So far, so dull, and none of our business.

But then it emerged that Arcuri’s business had received large sums of public money. It was not unreasonable to ask if there was any connection between her “doing what it says on her tin” and her banking large amounts of public tin. An investigation ensued, and it is here that the discovery point arose. There were gaps in the email trail which would have shown the decision-making process by which money went to Arcuri. The investigating authority said that it could not prove Johnson’s involvement in the decision-making, but added that there was “evidence to suggest that those officers making decisions about sponsorship monies and attendance on trade missions thought that there was a close relationship between Mr Johnson and Ms Arcuri, and this influenced their decision-making.”

Unfortunately, the investigators went on, “some of the records it had wanted to see ‘either never existed or have been deleted’”.

There is an ambiguity in this which makes my nostrils twitch. When they say that documents ‘either never existed or have been deleted’, are these two categories of documents – the “never existed” ones and the deleted ones – or one category whose absence is unexplained?

Johnson lives to fight another day, but the stench here is the same as surrounds any litigant who gets off the hook thanks to missing documents. No-one can presently assert (and I expressly do not) that Johnson did influence the payments, but when a known liar is saved by gaps in the document trail, the smell persists.

__________

Dominic Cummings invents policies and Boris Johnson executes them to the sound of gnashing teeth from the chorus of lapdogs who sit in Cabinet. It was Cummings who came up with the biggest lie of all – that Brexit would save £350 million a week which would go to the NHS, a deliberate falsehood which was intended to delude the weak-minded into voting for Leave. It did just that, and we don’t need to particularise any other departures from the truth by Dominic Cummings – someone happy to tell that lie is unlikely to be trustworthy in any other aspect.

It was also Cummings who came up with the government’s coronavirus lockdown policy, that incoherent mess of statutory instruments, guidelines and ministerial pronouncements which have led directly and indirectly to many thousands of deaths. Having made such rules for the rest of us, Cummings, apparently showing severe virus symptoms himself, set off for Durham with his wife and child in the family Land Rover Discovery to visit his family on their estate and to drive a 60 mile round trip to Barnard Castle to test his eyesight (yes, I know, but that was his story and, for now at least, he is sticking with it), before driving back to London for a potentially infectious meeting with the Cabinet.

The details are obscure, partly because Cummings contradicted himself with each variant on his story, and partly because, like Johnson, Cummings is assumed to lie with every breath (I can’t and don’t say that he does lie all the time, merely point to the £350 million story and to the assumption that if you lie down with dogs like Johnson you get fleas).

The discovery element which makes this cock-and-bull story appropriate for this blog is to do with tracking car journeys, and especially journeys in Land Rovers. It doesn’t really matter where the little creep went – the only matters of public concern are firstly that the rest of us were obediently locked down in compliance with his rules while he flouted them, and secondly – if the eye test story is true at all – that one who drives for 60 miles while unsure of his eyesight is both morally and legally in the wrong.

For a few days, however, the news was full of different aspects of the story beyond whether any it of was true. How far is it to Durham? Did Cummings go to Barnard Castle at all? How many times did he refuel his gas-guzzling car and how many people did he infect while doing so? Did his family get out of the car for other obvious purposes, and if so where?

As it happens, all these questions (except the number of people infected by this jaunt) could probably be answered by the company which supplied his car. Land Rover Discovery keeps track in real time of journeys made in their cars – not just the actual journeys, and the stops and starts, but the opening and closing of doors and boots.

We know this thanks to a murder case which I wrote about recently – and perhaps the main reason for writing about the Cummings farrago is to give an excuse to link to that article. It was called A crossbow murder and car insurance fraud – technology is quietly filing the evidence. What about your next case?  and it linked to an earlier article about car-tracking technology called When the car sneaks on you and your social media betrays you.

The message from both is that there is a lot of data out there which can readily be turned into evidence for or against a party to civil or criminal proceedings. What matters is to remember to see that it is preserved and to ask for it if it is proportionate to do so.

In the end, it doesn’t really matter which, if any, of Dominic Cummings’s stories were true, though it does matter how many people actually died as a result of his trip. It doesn’t matter what passed, as it were, between Boris Johnson and Jennifer Arcuri but it does matter to know about those documents. Discovery is all around us.

Those public enquiries are going to be fun.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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