The Secret Barrister’s second book Fake Law has as its subtitle “The Truth About Justice in an Age of Lies“. Publication was held over from the spring, and the book arrives at a time of public dishonesty such as we have never seen before. There is a tenuous connection with eDiscovery (the primary subject of this blog) in that the tricks and tools of public dishonesty include those which are familiar (or should be) to anyone engaged in civil or criminal discovery.
This is not a review of the book because I must wait like everyone else for publication on 3 September when it will be available from e.g. Daunt Books for £20 or for slightly less from Amazon. I depend to some extent on the Secret Barrister’s article in The Guardian last week called Against the law: why judges are under attack, but my point is not so much to preview the book as to talk slightly discursively about the age of lies.
Along the way, we might ask why people lie, cheat and deceive. Motive and opportunity are factors to be considered when looking at criminal behaviour and in anticipating security risks, as well as in public dishonesty. For Boris Johnson, lying seems to be a personal characteristic almost divorced from anything he might achieve by it. Smaller fish like Health Minister Matt Hancock tell lies partly to alter the record in anticipation of the inevitable public inquiry into the handling of the pandemic, but also because lying seems to be a qualification for serving in Boris Johnson’s government. Wearing my eDiscovery hat, I am looking forward to that inquiry.
But why do they keep going? Johnson has an 80 seat majority and has got the Brexit he lied so assiduously to get. Adding to the lie pile now just emphasises the fact that he only reached his position by dishonest means, and reinforces the perception that everything he says is untrue.
Why, for example, did he need to pitch a tent on a Scottish clifftop?
It merely gave rise to new rumours: Carrie wouldn’t have him in the house; he sent Carrie to the tent so that he could do as he wished to the house; the tent was to allow music practice out of earshot. None of these stories seems remotely plausible, but Johnson asked for them by a PR stunt which was quite unnecessary – the man treats his whole life as a holiday, so no-one really minds if he takes some of it on a Scottish clifftop.
And what about that photograph of the present family Johnson posing by the sea?
I was prepared to take it at face value, evidencing that Johnson, his girlfriend, the child and the dog were actually there. Once the tent subterfuge emerged, however, alternative versions appeared. The photograph was taken on his last trip to Scotland, it was said, and he was actually strumming his lyre in Greece, according to one version. We all Photoshopped them out of Scotland and into other places – I set them in front of a tent on Oxford’s Port Meadow:
Others, more skilled than I am, chose other locations.
The circle of apparent deception reached its full form when someone Photoshopped them into a green screen studio. Or did they? Is that in fact how this whole picture originated, in advance, ready to be stuck into any location where it was politically expedient for Johnson to be seen? Probably not, but the subject only came up because of the tent stunt.
The point transfers back to civil or criminal litigation where judges who have uncovered one falsehood start seeing them elsewhere in the evidence (or, at least, decide not to give the witness the benefit of the doubt). Part of the point of discovery is to identify contemporaneous sources which confirm or undermine witness evidence. The Photoshop examples above confirm, should we need it, that even photographs are not to be taken at face value, at least without their underlying EXIF data (search this blog for “EXIF” to see how this subject comes up in discovery and elsewhere).
A further trick, beloved equally of litigants and politicians, is to throw so much dust in the air that observers get tired of trying to discern the truth in the murk. You can couple that with what are popularly known as ”dead cats”– trivial issues which get blown briefly into major scandals to take everyone’s eye of what is really happening. This week in the UK it is the BBC’s reported decision to dispense with the words of ‘Land of Hope and Glory’ and ‘Rule, Britannia‘ at the Last Night of the Proms. The frothing gammons and racists happily ran after this on one side, with anti-imperialists on the other, leaving the rest of us stuck in the middle of what speedily became a non-issue. The exam grades fiasco, the Covid mishandling, and the looming spectre of no deal Brexit got relegated to the sidelines as Boris Johnson, who had not said anything useful about any of these major issues, found time to talk about the Proms.
All that brings us back to the Secret Barrister and Fake Law or, at least, to that part of it covered in the Guardian article. Matters of great pith and moment are at stake, to do with the Constitution, the rule of law and the delicate balance between the government of the day and the judiciary charged with upholding the law.
The government claims that it is upholding the will of the people in pursuing Brexit, with Dominic Raab asserting of one of the Brexit cases that an “unholy alliance of diehard Remain campaigners, a fund manager [and] an unelected judiciary” had “thwart[ed] the wishes of the British public”. The government’s opponents said that the alleged mandate is tainted with dishonesty and bad faith. When the courts were asked to intervene, the Daily Mail called the judges “enemies of the people”, and the Daily Mail, searching for a stick with which to beat the judges, reported breathlessly that one of them was an “openly gay ex-Olympic fencer”. That this was meant as a criticism give us some idea of the Mail’s intended audience.
The truth here has been lost. It was lost back in the 1980s perhaps, when an ambitious journalist called Boris Johnson published articles (about an alleged EU plan to legislate for straight bananas, for example) which infected the less thoughtful of the voters with everything from sly insinuation to overt lying. The sort of people who get upset by gay judges and straight bananas were easy meat for a Brexit campaign which put straightforward lies on the side of a bus.
With its large majority, Johnson’s government can more or less ignore public opinion, which makes one wonder why they have spent so much time and money seeking to influence and mislead public opinion. All we are left with as the bulwark against unfettered authoritarianism is the judiciary, and that is why the government is seeking to restrict that control.
The government has the right-wing press on its side, keeping it friendly with beneficial tax regimes and the occasional peerage. It can also afford to buy social media support, both via Facebook and by the armies of unidentifiable trolls who conduct the discourse on Twitter. SB is important in this context, not just for the 399,000 Twitter followers, but for the ability to write readable books which appeal to audiences beyond the narrow confines of lawyers and beyond Twitter.
All of these things – The Secret Barrister, an anonymous troll, and respect for the law – came up in a Twitter exchange last week. SB has been on Twitter for long enough to know that someone who calls himself “Daniel lion”, with lots of digits in his username and a newly-opened account with no followers, was either a bot or (more probably in this case) a man in a basement in Omsk or Tomsk being paid to spread disinformation and confusion.
Daniel tweeted ”A barrister that defends criminals. That is another reason why this country hates lawyers and no longer respects the law”.
SB’s jovial retweet of this got a lot of Likes, as you can see. Some might argue that it was only the RT which gave prominence to Daniel’s stupid tweet. I think we need to have these people (if indeed this is a person) dragged out into a critical light occasionally – I guessed that Daniel’s tweet-stream would also have dislikeable views on immigration and all the other things which make gammons foam at the mouth, and I was right. Daniel’s job is to make others think that their views are in the mainstream. What matters is not the rightness or wrongness of these views, or my opinion of them, but the fact that they exist and the mechanics of dissemination. There will be many who really believe that “this country hates lawyers and no longer respects the law”. They may not be very bright. But they have votes and still apparently love “Boris”, believe in him, tents and all, and agree with him when he and his acolytes attack lawyers.
The problem with taking a while to write an article on topical things is that new subjects keep cropping up which fit the theme and ought to be mentioned. Yesterday, the Home Office published a video about how its efforts to send back “illegal immigrants” were constantly thwarted by “activist lawyers”. In clumsy, clunky style, the Home Office imagery aimed to reflect the Dad’s Army image of gallant little Britain repelling the foreign hordes.
A storm arose at several levels. Cutting through the detail, the administrative head of the Home Office said that the words “activist lawyers” should not have been used, and the video was withdrawn. The sourest possible reaction came from “a government source” (these, of course, mean Dominic Cummings):
Deportations were stopped. We should be clear that some deportations are perfectly proper. The “activist lawyers” are there to make sure the government behaves properly and that people get a fair hearing. Why should the government object to that?
What else will they push through without activist lawyers and courts to make sure that they comply with the law? After all, this is a party which (to take one example), is quite happy to take money from developers at the same time as Robert Jenrick, the Secretary of State for Housing, grants planning permission for a development which would not get approval locally. You may be happy today to see the government deport brown people without pesky lawyers and courts intervening, but what will you do when Jenrick grants planning permission for a generous developer to build 1,000 houses in your pretty village? You would like the courts and those lawyers to be available then, would you not?
Much depends, perhaps, on how you phrase it. Harry Cole is political editor of the Sun. To him, 23 Channel migrants were “sprung by three law firms”. You and I would express that differently.
There are people on my Twitter timeline, and not necessarily only the thick ones, who would say that Cole expressed it perfectly.
Johnson will expect support for his war on the judiciary, and he will get it unless we can persuade enough people of the risks they face once there are no judges left with power to protect them, and once the laws designed to protect them are dismantled. I will leave you with the passage from Robert Bolt’s A Man for All Seasons in which Paul Scofield’s Sir Thomas More explains why this matters.
Perhaps that bit of powerful drama plus SB’s book will win over some of those who are so happy to see the fences taken down.
Credits where known are shown on the pictures.