Perhaps, though, we could just chuck it in ChatGPT? According to a 2025 LexisNexis survey, 61% of UK lawyers have used generative AI for work, with 49% relying on general-purpose chatbot programs rather than specialist legal tools. On the consumer end, “robo-lawyers” are finding clients aplenty. A study by JUSTICE, a legal charity, and the Administrative Fairness Lab found that one-in-six respondents who had experienced a recent legal dispute had consulted an AI chatbot for help.

No longer the exclusive preserve of a cloistered elite, meanwhile, legal research now appears within the competence of sophisticated large language models. A September 2026 report evaluated AI models on practical Dutch legal research. Its best-performing model, Claude Fable 5.1, satisfied 75.7% of individual legal and citation criteria.

One can envision a near future where much lawyering is undertaken by AI. Perhaps clients interact with an interface, which then turns their conversation into a formal submission to the court. Human judges, retained for tradition, then provide desk-based assessments, with neither counsel nor client required to appear. If this premonition is accurate, lawyers are looking increasingly obsolete.

At the risk of breaking the magician’s code, the legal profession has been obfuscating how simple legal argument is for centuries. Behind all the Latin conjurations and private-school wankery, much lawyering involves rote syllogistic reasoning. A general legal rule (“drivers owe a duty of care to other road users“) is applied to the facts of a particular case (“the defendant was driving and the claimant was another road user”) to reach a conclusion (“the defendant owed the claimant a duty of care”).

Once you know the elements of a cause of action or criminal offense, applying the relevant rules to the available facts supplies a framework for assessing probable legal liability and what legal arguments could prove fruitful in court. Ambiguities may exist, particularly when legislation or case law contains open-textured phraseology like “reasonable” or “ordinary”. Yet the arguments that can be put forward follow fairly consistent conventions.

More from this author

Camille Paglia is still exhausting

By Jarryd Bartle

Even attempts to soften the law’s rigidity have produced new forms of it. “Equity” emerged in the Court of Chancery to alleviate injustices caused by the strict application of common-law rules. This allowed litigants to seek injunctions restraining immoral conduct, or the rescission of a contract induced by undue influence or misrepresentation. Over time, however, these remedies became governed by elaborate doctrines with strict conditions on how and when courts would intervene.

It has never been easier for amateurs to approximate “black-letter” lawyering: a term for the routine application of well-established principles and rules, named after the heavy Gothic type face used by medieval scribes. “Plain-language” reforms in the last century stripped legal drafting of unnecessary obscurity (“Anton Piller orders” became “search orders”; “Mareva injunctions” became “freezing injunctions”), while widespread digital archiving has brought statutes and case judgments within reach of anyone with an internet connection.

This was not always so easy. As legal scholar Desmond Manderson has noted, for much of common law history legal principles appeared to the public “as runes”, “priestly signs” whose authority was heightened by mystery. The Magna Carta addressed the world firstly in Latin, then French, languages understood by only tiny minorities at the time. The first complete English translation appeared in 1534, three centuries later, and was still largely unintelligible to a mostly illiterate public. The rise of the machines, therefore, is part of a welcome democratization of legal knowledge and expanded access to justice.

So what place is there for counsel in carne in this Brave New World of automated lawyering? In my view, it is precisely in those aspects of advocacy often argued to be archaic and questionable, in the deeply human practice of veiling conflict in ceremony and adorning argument with eloquence.

Legal rationality — rule-bound and amenable to syllogism — may be susceptible to mechanical imitation. That, however, is merely the science of legal practice, not the art. Logical propositions are just part of the advocate’s repertoire. The true power of the legal profession is found not in judgments but in pageantry.

Philosopher Michael Oakeshott’s Rationalism in Politics offers a useful lens in his distinction between knowledge that can be gained from textbooks and the kind of experiential understanding which constitutes cultivated connoisseurship. Oakeshott calls the first technical knowledge, whose chief characteristic is that it is susceptible to “precise formulation”. The second, practical knowledge, “exists only in use” and “cannot be formulated in rules”.

Oakeshott’s distinction is familiar enough in any solicitor’s office. Taking instructions from a client is about more than simply extracting facts and applying rules. The solicitor must receive a client’s account with sufficient sympathy to encourage candor but with sufficient skepticism to discover what has been omitted. One’s role is part social worker, part detective. For a barrister, an entire dramaturgy attends the presenting of one’s case. Like a grand Shakespearean director, counsel orchestrates the show: whether it’s concessions negotiated with opposing counsel, witnesses brought back to inconvenient particulars, or gentle corrections of judicial misapprehensions. Merely knowing the rules encyclopedically, as an AI program will soon be able to, can never capture the talents for commanding a room and furthering an argument.

Viewed with an eye for performance, the spirit of lawyering is centered around a choreography of manners. For Manderson, a true apologist for the occult features of law, a lawyer of substance must attend to “the ambient, the metaphorical, and the rhetorical effects of language”. Take Cicero’s defense of Quintus Ligarius, prosecuted for supporting Caesar’s opponents in Africa during the civil war. In Plutarch’s retelling, Caesar had already condemned Ligarius in his own mind as “a villain and an enemy”, but agreed to hear the celebrated orator out. As Cicero spoke, Caesar’s face “changed color” when he recalled that Ligarius’s prosecutor had fought against him in the Battle of Pharsalus. In the end, Caesar “was so greatly affected that his body shook and he dropped from his hand some of his documents”. Ligarius was spared, as Caesar would soon have cause to regret, given he joined the conspiracy to assassinate him.

Suggested reading

Inside the Magic Circle

By Josiah Gogarty

Whatever allowance we make for Plutarch’s exaggeration, the scene captures advocacy as an art of dramatic revelation and an appeal to the passions. Voice, gesture, stillness and the ordering of disclosures shape how a story unfolds, helping give a client’s perspective presence before strangers. Romanticization is weaponized in the service of empathy and understanding.

In recent times, “rhetoric” has acquired an unfortunate reputation as trickery and, when applied to legal practice, often conjures up images of sleazy hired guns willing to argue — in the words of Jonathan Swift — “that white is black, and black is white, according as they are paid”. But true rhetoric concerns the means by which one person makes something intelligible and persuasive to another. This goes deeper than doctrinal analysis, to decisions of emphasis and allusion. As literary theorist and legal scholar Stanley Fish has argued, the meanings of legal arguments are not “embedded in words but emerge and are perspicuous in the light of background conditions of intelligibility”. Whether one’s audience is judge or jury, a cutting distinction can make an overlooked experience legally significant while a well-crafted analogy can move others more than cold deductive reasoning.

Though much of the pomp and ceremony of the courtroom can appear terribly old-fashioned, even the quaintest rituals serve a purpose, one foundational to civilization. In Aeschylus’s Eumenides, Athena establishes a court to judge Orestes for killing his mother. His acquittal leaves his accusers, the Furies, threatening vengeance upon Athens. Peace comes only when Athena persuades them to accept an honored place within the city, to be seduced into civility. This “show” of authority gives adversaries a way to submit their quarrels to judgment without surrendering their dignity. Ornate performance, whether the supplicant bow before an elevated bench or the regality of judicial attire, signals that trial and judgment are public acts delivered with restraint.

This is natural justice, a practice more conventional than “rational”. Philosopher Roger Scruton famously understood the common law as an inheritance formed through particular disputes, remaining “close to human life and bound up with a given history”. Such experiential nuances are unlikely to be appreciated by an AI which, rather than grounding its decision on the tangled particulars of human circumstance, is designed to string words together on the basis of static, narrow learned parameters.

To ground lawyering in rhetorical artistry necessitates a shift in legal education. If AI can handle the drudgery of locating authorities and assembling arguments, then the human element becomes even more central. Future generation of lawyers will require a capacity for cultivated passions, what C.S. Lewis called the chest: the seat of “emotions organized by trained habit into stable sentiments”. It also requires a magnanimity of character sufficient to captivate and seduce an audience. Literature, history and poetics deserve a place alongside doctrine. An education devoted exclusively to producing correct answers prioritizes “technical knowledge” over the sensitive, well-rounded soul required for legal practice. We can leave the grunt work to AI, in short, but the delicate business of civilizing conflict still calls for a human touch.

This article is about the second way of understanding the Jeffrey Epstein case.

In 1886, a young German anthropologist named Franz Boas landed in British Columbia, with the intention of studying the indigenous peoples as they began their ritual preparations for winter. He had seen similar preparations before, on Baffin Island in the frozen north, but the scale of these preparations was different: almost nightly, the Kwakiutl gathered in their long, rectangular houses to dance into the small hours of the morning, until the sun showed itself again. They prepared special masks for these ceremonies, and wore complicated insignia made of cedar bark; at many gatherings, there were complicated stage magic techniques, even rudimentary pyrotechnics. The longer Boas spent among the Kwakiutl, though, the more he became convinced that the strangest and most shocking rituals were held behind closed doors, only accessible to those with considerable wealth and long periods of purificatory seclusion behind them. He asked a few villagers about the rumors though: no one seemed to want to talk. They did have a name, though, for the select group of men in the village who were allowed to attend them: the “Hamatsa” — meaning, the “cannibals”.

Boas spent the next decade exploring the Pacific Northwest region. The more indigenous peoples he visited, the more he became convinced that all of them had equivalent, secret brotherhoods. There were “Cannibal Societies” among Kwakiutl, the Bella Coola, and the Tsimshian peoples, not to mention “Grizzly Bear Societies” and “Wolf Societies” who were rumored to eat human flesh, too. What was more, studying the cedar bark insignia of the different brotherhoods, Boas began to suspect that they were all connected: what other anthropologists had believed were multiple different peoples were perhaps better thought of as just two different groups: a scared, confused rank and file, and a secretive, cannibalistic elite.

For several decades, Boas’s discovery languished in the pages of relatively obscure ethnographies. Those anthropologists who encountered it tended to treat secret, cannibalistic cults as a quirk of the Pacific Northwest: a strange outgrowth of the totem religions of the region, and certainly not something with any wider sociological significance. Boas himself was an advocate of what he called “historical particularism” — the notion that societies should be treated on their own terms, according to their own internal logic, and certainly not extrapolated into any kind of grand, sweeping theory of human nature. Then, in 1902, a colonial administrator named P.A. Talbot began to notice some strikingly similar patterns in the region he had been tasked with governing in British Nigeria.

Talbot was first alerted to the fact that there might be a strange, second power system operating in his fiefdom by the road closures. Masked figures kept appearing on public highways and demanding they be shut for unspecified, ritual purposes. Soon they began to commandeer other public spaces: markets, town squares. Attending one of them, Talbot witnessed a masked man kill and eat a baby, only to “resurrect” it for the crowds of cooing onlookers (Talbot himself suspected the real explanation was that there were two different babies). Over time, he uncovered the truth: the masked men belonged to a shadowy group known as the “Ekkpo,” or “Leopard Society”, which had “usurped practically all the functions of government”, regulating trade, adjudicating disputes, imposing fines, and executing people they found guilty of non-observance of public rites, or having witnessed private ones. They had established a virtual monopoly on palm oil nuts, the main agricultural staple of the region.

Talbot published his findings in 1923, in a rather sensational book titled Life in Southern Nigeria. The Leopard Society was a kind of state-within-a-state, their power maintained by a vast network of secretive rituals: mock beheadings, staged resurrections, feats of bodily invulnerability — not to mention, of course, cannibalistic sacrifices. Within a few years, colonial officials across West and Central Africa had begun to notice similar features in their own territories: in Liberia and Sierra Leone, the secretive Poro society wormed its way into just about every important political position with initiates sacrificing their own first-born sons to reach the highest ranks; in Rwanda, the Kubwanda Society maintained secret lodges outside villages where they plotted techniques for taking over political power. By 1950, anthropologists were discovering secret societies on every continent on the planet: the Suque in Melanesia, with their mass sacrifices of pigs; the clown-fraternities of the American Southwest, with their black-and-white body paint; the “bear cults” among the Ainu of Japan, with their hidden feasts of ursine flesh. What Boas had thought was a relatively isolated phenomenon confined to a few fishing peoples in British Columbia was starting to look like a human universal.

More from this author

Philip Roth’s coldhearted betrayals

By Thomas Peermohamed Lambert

What did this all mean? For a while, the discipline of anthropology could not agree. Certain esoteric interpreters liked to think that the sheer preponderance was evidence of some hidden, perennial truth, accessible only to a select few in each society — that the Hamatsa and Ekkpo and Poro and Suque were privy to the same, occult wisdom as the Rosicrucians, the Freemasons, or the Hermetic Order of the Golden Dawn. But, as other anthropologists quickly pointed out, it seems that the “wisdom” guarded by the secret societies was pretty variable — and in many cases, initiates didn’t even really seem to know what the secret they were guarding actually was. In fact, what all human societies seemed to require was not a particular kind of secret ritual or rite, but an excuse for secrecy itself.

The next breakthrough came in the Nineties, when archaeologists in France and Italy began to notice some strange patterns in the Paleolithic cave dwellings that littered the Northern Mediterranean. With surprising regularity, they noticed, there would be smaller caves, positioned a little way away from the main dwellings with hidden apertures, with unusual concentrations of cultic artifacts, and — entirely unheard of in other dwellings from the period — evidence of cannibalistic human sacrifice. What was more, such dwellings tended to belong to very specific types of peoples. The cannibal cults invariably seemed to emerge in “transegalitarian” societies — that is, societies who were caught somewhere between flat, egalitarian hunter-gatherer bands and stratified, feudal societies with established hereditary classes. In such societies, the archaeologist Brian Hayden explains, everything was up for grabs: greedy “aggrandizers” needed to recruit deputies and cronies, and quickly; but in the absence of standing armies and sophisticated ruling-class ideologies about the importance of giving tithes to the local baron or paying back one’s student loan, they needed to get creative. Perhaps, the archaeologists began to suspect, all the machinery of terror was simply a way of solving a technical problem of government: how to cleave apart a group of people who formerly believed themselves to be bound together in structures of reciprocal obligation. Masked ceremonies and mock-beheadings to terrify those excluded. Cannibalistic ceremonies to lock in the initiates. After all, were you really going to go crawling back to your family for forgiveness when you had just sacrificed your first-born son?

It is a surprise, then, that despite the question of the origins of social inequality having bedeviled political, social and legal thinkers since Rousseau, the ubiquity of such grisly, occult rituals isn’t better known. Secret societies are not just a vestige of older, quirkier times; they remain one of the most empirically sound explanations we have for why groups that have hitherto been bound together by bonds of community and family suddenly explode into hierarchy. Indeed, they are perhaps best thought of as social technologies for creating hierarchies. As such, they are also tell-tale signs that a group of people, however much they claim to be acting in the name of the common good — however many reputable chieftains they sponsor, however much of the local Congolese rubber industry they own — plan on sowing division.

In an important sense, the Epstein revelations are simply the latest chapter in the ancient history of secret societies designed to enforce boundaries between a cozy elite and a terrified rank and file. The evidence — the testimonies of all those underage girls trafficked for sex, the trapdoor into the ocean, the torture video, the suspicious order of 300 gallons of sulfuric acid the day after Epstein’s indictment — certainly seems grisly enough to guarantee a similar kind of bond of secrecy among those involved. What is more, Epstein really does seem to have had a coterie of powerful people willing to give him the benefit of the doubt against all evidence: not just among the celebrities who flocked to him long after his conviction, but also, perhaps, in institutions like the FBI, which gave him peculiarly lenient plea deal back in 2007, not to mention the virtually unprecedented guarantee of “immunity for all co-conspirators”. But in a sense, it is the more feverish rumors, like the cannibalistic orgies in the upstairs rooms of pizza restaurants posited by QAnon, that are most telling of Epstein’s sociological significance. Suddenly, spontaneously, people with no familiarity with the Hamatsa, the Ekkpo or the Poro, are devising imagery straight out of the ethnographies of Boas and Talbot. It is as if ordinary people know, instinctively, that the greater the inequality, the stranger and more occult the rituals that reinforce it need to be.

Of course, this view of Epstein does give the lie to a certain, complacent view of our own society — one that sees it as founded in a set of liberal institutions whose principles include “transparency” and “democratic accountability” and “not killing babies in cannibalistic orgies”. But perhaps this correction is overdue. After all, mainstream historians such as Margaret Jacob and Frances Yates have been arguing for decades that secret societies were right at the heart of the political foment of the Enlightenment, with groups such as the Carbonari in Italy, the Comuneros in Spain, and the Decembrists in Russia incubating pretty much all the most important democratic institutions of the 19th century. Even today, it is hard to spend too much time among politicians and barristers in London without noticing, say, the preponderance of freemasons in the livery companies of the City of London, or the tendency of entire political dynasties to be drawn from the alumni of Oxford drinking societies with humiliatingly macabre initiation ceremonies involving dead pigs. As hard as it might be to imagine some horsehair-wigged judge staging the mock-execution of an infant, Ekkpo-style, our most venerable institutions do seem very good at devising ways of getting their members ensnared in a web of each other’s humiliating secrets, even without an Epstein to orchestrate it all.

Suggested Reading

Jeffrey Epstein's corrupt overclass

By Mary Harrington

But perhaps this conspiratorial reading misses the most important way in which our liberal institutions have begun to function like secret societies. After all, far more potent than the way these institutions operate behind closed doors is the way they operate out in the open — specifically, the way they strike fear into those who do not belong to the elite guild. Take the law, for instance. Reading over the Epstein files, one of the most shocking things one discovers is that for Epstein and his affiliates the whole function of the legal system seemed to be to frighten and bully those who did not really understand it. Epstein appears to have been serenely comfortable using his lawyers to hound and pester people who fell afoul of him: for him, with the best lawyers in the world on retainer, a few dozen lawsuits were easily navigable; for his victims, with normal jobs and families and no savings to pay for counsel, just one lawsuit could quite plausibly ruin their lives. This technique – using what are supposed to be neutral procedures for administering justice as a punishment in their own right – is so widely acknowledged today that it even has a nickname in America: the SLAPP, or “Strategic Lawsuit Against Public Participation”. But we should not be seduced by the jargon into thinking this is anything new. The underlying logic is exactly the same as the Hamatsa and the Ekkpo: the law is a secret guild, that works in the service of initiates, and terrifies everyone else.

This logic seems to be increasingly popular among politicians, too. In the UK, our political class seems to be gleefully shedding the Enlightenment commitment to accessibility and transparency in legislative affairs and embracing the occult techniques of the Ekkpo. The last five years have seen pieces of legislation creep into force that are unprecedented in their sheer vagueness: the Police, Crime, Sentencing and Courts Act of 2022, with its decade-long sentences for those who cause “serious annoyance, serious inconvenience or serious loss of amenity”, whatever that means, or the Public Order Act of 2023, which renders illegal all protest that might cause “serious disruption to the life of the community”. Now ask yourself: what are these bills meant to achieve? What any of these legal widgets really means is a secret, known only to initiates who have sifted through reams of case law and sat in on the relevant closed discussion groups at Chatham House. It doesn’t matter. You are not supposed to obey rules like these. You are meant to cower before them in holy terror.

This is why the anthropological record is such a useful corrective. If we in the UK suffer from one national defect above all others, it is a kind of deference to bourgeois authority: a nice, public-school accent, the flutter of a gown, a well-timed “hear ye”, and we all become as obedient as lambs. The British public has become very accustomed to asking whether things are legal or illegal, harmful or not harmful, sanctioned by the bureaucracy or not sanctioned, but tends to forget to ask what the function of these designations actually is, how strange they look from the outside — to a visitor from the black fjords of the Pacific Northwest, perhaps, or an anthropologist fresh off the boat armed only with a notebook. If there is some small good that comes from the Epstein case, it will be that it has helped us to recapture some of that strangeness. For the first time in decades, people seem to be viscerally, instinctively aware that when it comes down to it, power is never actually about laws and regulations and procedures. It is about what goes on in hidden caves and smoky rooms. It is about the infinite terror of what we do not understand, and the suspicion, even if we cannot prove it, that the person ordering us around might just have a taste for human flesh.

Startlingly, Lammy’s proposals go even further than the recommendations of Sir Brian Leveson in his controversial — and widely criticized — report on the future of the criminal courts. Where Leveson recommended removing the right to a jury trial for offenses with sentences of less than three years, Lammy’s proposals would restrict that right only to cases of rape, murder and manslaughter, vaguely accompanied by so-called “public interest” cases. While Leveson proposed that Crown Court cases not tried by juries would still have a judge and two magistrates, meanwhile, the new proposals suggest cases could be tried by single judges.

But even if the Government, as seems increasingly likely, retreats from Lammy’s scheme a return to Leveson’s plans is no victory. Consider, first, the legal principle supposedly underpinning jury-free trials. Both Leveson and Lammy claim that there is no “right” to a jury trial. Yet this assertion has been expertly dismantled by the criminal barrister and academic Alex Benn. Leveson, for his part, takes an approach to the concept of “constitutional” rights that has no place in the English legal tradition: in uncritically adopting Lord Justice Auld’s definition of “an entrenched right overriding all other legal instruments”, he sets the bar far too high.

More from this author

Starmer’s Chagos deal risks his life’s work

By Harry Gillow

As Benn explains, in a common law system without a codified constitution, “constitutionality” must mean more than Leveson’s narrow approach. Rather, it also represents the “fundamental values” of a country’s legal and social system. By this measure, jury trials are undoubtedly constitutional, with a pedigree stretching back even before Magna Carta. Levison notes that there is no right to a jury trial under Article 6 of the ECHR. But that is tilting at a straw man: as even Leveson concedes, there could hardly be such a right in an international system covering disparate legal systems with no history of jury trial.

Not that the Government seems to care about venerable historical principles. It’s especially galling, here, that Lammy’s justification for dumping jury trials is something as banal as a lack of capacity in criminal courts. Yes, the system is in crisis — years of underfunding, and the crippling Covid backlog, has left it on the verge of collapse. But as Leveson himself notes, 2023-4 spending on jury costs was a mere £36 million, a fraction of the total court budget of £2.5 billion. There’s another issue here too. As Benn notes, the justification of crisis implies that jury restrictions might be undone once the worst has passed. But there is no indication of that in Lammy’s proposals, and little realistic hope that a future government would devote the cash and inconvenience of bringing back juries.

More fundamentally, and as Leveson’s focus on the ECHR implies, the Government’s proposals give a depressing insight into what it actually thinks about the law — preferring to obsess over the dry, narrow letter above its spirit. When, for instance, the question involves surrendering British territory at the whim of a hostile court? Downing Street cheerfully hands over billions to smooth the deal. When it’s being asked to accept urgently needed recommendations on nuclear power, changes that might just stop us from tipping into a full-blown energy crisis? The government is far too worried about its international obligations.

Yet when it comes to abrogating cherished British rights — polled in 2011, the public ranked jury trials only second to (of course) the NHS as top choices for protection in a Bill of Rights — Starmer and his ministers are utterly insouciant. The unfortunate impression is of ministers far more concerned with the niceties of internationalism and bien-pensant progressive causes than ancient and vital traditions.

And they really are vital. Contrary to what some (often well-heeled) lawyers argue, the ability of juries to reach inconsistent verdicts is a feature, not a bug, of the system. It is the epitome of a model that prioritizes acquitting the innocent over condemning the guilty, where the very point of the process is to provide a safety valve for when things just feel wrong. As Leveson noted from Lammy’s own review into the treatment of minorities by the criminal justice system, jury verdicts are one area apparently unaffected by ethnicity. As any civil barrister will tell you, the identity and attitude of a particular judge can have a dramatic effect on the outcome of a case: the very fact that jury trials involve 12 random people avoids that precise problem.

The point is not — as sometimes argued — that judges from one background cannot sympathize with another. Nor is it that jury trials always reach the right verdict; there are undoubtedly cases where they don’t. Any jury system like our own will be prone to perverse outcomes, like the acquittal of the Colston protestors in Bristol. It is, rather, that it provides not only a vital safeguard against state power and dubious prosecutions, but also a superb mechanism for ensuring broad acceptance of an outcome across society. It isn’t some bewigged and distant judge descending from his chambers to condemn you, but 12 of your peers, plucked from obscurity to reach a verdict before returning to their workaday lives. It is, in a very real sense, society’s verdict — not the system’s.

Suggested reading

Britain’s free speech shame

By Adam King

It’s here, especially, that you might wonder if the Government has thought its plans through. We live in an age of judicial politicization, with the increasingly judiciary dragged into political matters — dragged, more often than not, by politicians reluctant to actually make decisions themselves. And yet this government, nominally so committed to the protection of the judiciary, led by a former director of prosecutions, sees no issue with individual judges being required to give their reasoned verdicts for acquittal or conviction. Nor is the carve out for “public interest” cases any answer. Who, for example, will decide what qualifies, and how will the Government answer the inevitable charges of two-tier justice when certain cases are granted a jury while comparable ones aren’t?

Either way, restricting juries represents a shift towards an increasingly technocratic and legalistic state, taking one of the fundamental questions in society — who gets to decide innocence and guilt — ever more out of the hands of the general population. It’s all too easy, here, to see the problems that might arise from removing, in the words of the judge and legal philosopher Lord Devlin, the “protection against laws which the ordinary man may regard as harsh and oppressive”. For Devlin, the “little parliament” that each jury represented was central to British democracy: he could not “see the one dying and the other surviving”.

And certainly, if, as Devlin states, the first objective of any would-be dictator would be to neuter Parliament, the next would be to diminish trial by jury. “For no tyrant,” as Devlin warned, “could afford to leave a subject’s freedom in the hands of twelve of his countrymen.” Indeed, the justifiable outrage at certain overzealous hate-speech prosecutions only shows that we can’t simply rely on the law being just. Juries, for close to 1,000 years, provide a key protection against the excesses of a state that will, by its nature, rarely be primarily concerned about the law’s effect on an individual. The security of a jury trial can be the difference between ruin and redemption. And one day, you might need 12 of your peers to judge you too.

“We’re growing enough for 4,000 prescriptions a month,” says James Leavesley, CEO of Dalgety, the firm that built and owns the facility. “So far we’ve invested £12 million. But we plan to expand to meet the needs of 22,000 patients.” To get this tour, I’ve had to sign a non-disclosure agreement, which means the only thing I can say about the location is that it’s somewhere in the Midlands. Security, supplied by ex-soldiers, is tight. Should a criminal gang try to steal the crop, an armed police response is only a phone call away.

Licensed by both the Home Office and the Medicines and Healthcare Regulatory Agency (MHRA), Dalgety is one of four firms that run legal cannabis farms in Britain, and represents the most respectable end of the country’s burgeoning medicinal cannabis market. Jane Sawyers, a former Staffordshire chief constable, is a non-executive director, and until she became a minister last year, so too was the former Labour Home Secretary Jacqui Smith.

When regulations on medicinal cannabis were first eased seven years ago — following a campaign by parents desperate for an effective treatment for epilepsy in their children — this is roughly what was envisaged: a robust and regulated operation, providing rigorously tested products to people with specific clinical needs.

This, however, is not what most of Britain’s £300 million medicinal cannabis industry actually looks like. Nor is it why figures like Snoop Dogg are so keen to invest. What has emerged, rather, is an online bazaar — below the radar, but perfectly legal — in which British patients can obtain imports of ultra-high strength cannabis from American and Canadian companies whose brand names emphasize their non-medical purpose. “Fuck Around and Find Out” and “Haymaker Haze” are just two among many, the latter fronted by the ex-boxer and convicted rapist Mike Tyson. Most are not supplied in any recognizable medicinal form, such as capsules, but as cannabis flowers to be vaped or smoked.

The fact that non-medical cannabis remains illegal in Britain has not stopped doctors from prescribing these brands, marketed as lifestyle products in jurisdictions where marijuana is legal, for medicinal purposes at private clinics. Meanwhile, the Government is only starting to wake up to the risks, particularly when it comes to cannabis-related psychosis. Just last Thursday, its Advisory Council on the Misuse of Drugs announced plans to investigate whether legalization has had its “intended impact” — and to identify any “unintended consequences”.

Suggested reading

The illusion of ‘safe’ marijuana

By Kevin Sabet

Certainly, evidence implying this isn’t hard to find. “This cannot be real,” writes a contributor to a Reddit forum on medicinal cannabis. “I just got my first order. I can’t believe I’m holding weed legally.” Strains UK, a dedicated cannabis review website, also lauds high-THC brands being prescribed by doctors. One example, known as “Gorilla Glue”, is apparently famous for “putting users into an amazing daze!” Another is “Lemon Cherry Gelato”, whose users find that “every hit will make you grin like a fool”.

How did we get to this point? Cannabis, after all, is still a Class B substance under the Misuse of Drugs Act, which means those caught selling or importing large quantities illicitly face hefty jail terms. In theory, possession is illegal too, though this is rarely enforced.

Yet there are also legal ways to secure cannabis. By the middle of the last decade, a handful of pharmaceutical products derived from the plant had been licensed. One example is Sativex, a mouth spray used to treat nerve damage caused by multiple sclerosis. That was shadowed by a broader campaign to legalize cannabis for medicinal use, led by MPs such as Labour’s Paul Flynn. In 2016, the All-Party Parliamentary Group for Drug Policy Reform issued a report saying the medicinal use of cannabis should be permitted, with the document co-authored by an NHS neurologist called Mike Barnes.

Spooked by the publicity given to childhood epilepsy, the then-Home Secretary Sajid Javid oversaw the legalization of medicinal cannabis in November 2018. This meant that cannabis could be privately prescribed by doctors registered as consultant specialists with the General Medical Council (GMC). According to Professor Trevor Jones, a former government adviser who developed drugs to treat epilepsy and HIV as head of research at the Wellcome Trust, regulation was supposed to be “extremely strict”. Advertising the drug is unlawful, and prescriptions are supposed to be based on “purely therapeutic considerations”.

However, the rules do not specify what type of specialists are permitted to prescribe cannabis. The GMC says that “any doctor on the specialist register in any specialty” is permitted to do so, with perhaps 140 working across the country. Nor is there any restriction on the conditions for which cannabis can be administered. Classed as a “special category” drug under the Human Medicines Act, it can be privately prescribed for any patient whom a doctor considers has an “unmet clinical need”. This includes conditions for which it is banned in the NHS, such as pain relief, depression or anxiety, because of a lack of evidence.

“Many patients use the clinics simply to get marijuana and not be arrested,” Jones says, “and that’s not good medical practice.” All the while, prescriptions have soared. In 2020, private clinics and pharmacies dispensed just 4,000 prescriptions. Yet though new NHS prescriptions are rare — the Care Quality Commission (CQC) stated there were fewer than five across the country in 2022-3 — in the year to March 2024 the number of private prescriptions increased by 130%, to 346,000, following a jump of 119% the year before. In 2024, legal imports of the drug also more than doubled. Industry sources says there are roughly 75,000 patients nationwide.

There are now 43 cannabis clinics in the UK, including Mamedica, the outfit with which Snoop Dogg has announced his £4.5 million investment, and which alone claims some 7,500 patients. Mike Barnes, co-author of that 2016 parliamentary report, is doing well too: his consultancy firm Maple Tree has advised more than 300 private cannabis clinics, pharmacies and distributors.

Taken together, this gaggle of private clinics provide cannabis prescriptions for over 70 conditions, including not only anxiety, depression and chronic pain, but also more surprising ailments such as psoriasis. Most operate entirely online: patient and doctor will never meet face to face, but rather conduct a short video interview following a written survey. The clinics are supposed to be regulated by the CQC, but so far, it has inspected just 17 out of 43. The cost for an initial consultation is usually about £100, but after that, there is bigger money to be made, with some patients paying more than £2,000 a month for cannabis.

The consequences, says Professor Sir Robin Murray, one of the world’s pre-eminent experts on the links between cannabis and psychosis, can be disastrous for mental health. To explain what he means, he describes one of his patients at Britain’s only cannabis psychosis clinic at the Maudsley Hospital in London. His patient was a young man who had totally lost the ability to distinguish between his psychotic delusions and reality. With treatment, Murray’s patient improved — until he was prescribed medical cannabis from a private clinic. Far stronger than the illegal drugs he had smoked previously, Murray’s patient slipped back into psychosis. More than a year on, he’s still sectioned under the Mental Health Act.

There are no reliable statistics on how many medicinal cannabis patients have become psychotic. But there is good international evidence that frequent intake of high-strength cannabis increases the risk — and here the situation is especially worrying. For if the dried leaf marijuana found in Britain 40 years ago was just 3% THC, which Murray likens to a weak draft lager, private clinics now regularly prescribe cannabis 10 times as strong. Once again, that’s arguably a function of lax regulation. Remarkably, the law sets no limit on a prescription’s potency, while The Lancet has found that smoking high-THC cannabis daily increases the risk of psychosis by at least 400%.

Cannabis clinics say they will not prescribe the drug for anyone with a history of psychosis. But many who do develop psychosis after taking cannabis will never have experienced it before, with one new study finding that individuals with no history of mental health issues, and who “self-medicate” with cannabis, are actually more likely to develop problems later.

Given the potential risks, the way many clinics and suppliers market their services is a further area of concern — especially given the supposed advertising ban. On top of its investment from Snoop Dog, for instance, Mamedica operates in partnership with Cookies, a hugely popular American recreational brand founded by the rapper known as Berner, whose hits include an album called Hempire. Cookies brands available in Britain via Mamedica include the 31% THC “Hawaiian Rain”, which Strains UK says provides “an enjoyable head high and a relaxing body stone”.

Despite the advertising ban, meanwhile, Mamedica trumpeted its Cookies partnership on social media, calling it an “iconic brand”, and in June issued a promotional video presented by the comedian Dom Joly. It shows him trying unsuccessfully to buy cannabis using euphemisms such as “hippy broccoli” and “stuff”. The video never mentions the drug’s real name, but its meaning is clear. It closes with a voiceover saying: “Talk to the experts if you’re considering alternative healthcare. Mamedica — for safe, legal care you can trust.”

Then there’s Mike Tyson, whose strains, marketed under the brand name “Tyson 2.0”, and including the 28% THC Haymaker Haze, are grown in North Macedonia and distributed in Britain by PHCann International. Last year, its CEO Sasho Stefanoski said that partnering with the former boxer meant “we can lead the charge in pushing industry boundaries”.

Suggested reading

Estonia’s opioid crisis is heading for Britain

By Michal Kranz

I asked Andrew Tyler, Mamedica’s CEO, if he thought the line between using cannabis for recreational and medicinal purposes was becoming blurred, and about the risks of high THC strains. He said Mamedica ensured patients went through a “rigorous eligibility process”, with their safety the “overriding consideration”, and “where there is any personal or family history of psychosis, we do not prescribe”. Perhaps. But as even Ralph MacMurray, the man behind Medbud.wiki says, “you can’t really separate recreational and medical use”.

Of course, medicinal cannabis still retains plenty of supporters, including many seemingly conscious of the risks. One is Graham Woodward, a former psychiatric nurse who now heads the Releaf cannabis clinic. Beyond refusing to prescribe cannabis with THC of more than 25%, Releaf is also unusual in gathering data on the drug’s effects. The firm is currently working with researchers on a clinical trial for people with long Covid.

Mike Barnes, too, says he is against using strains stronger than 25% THC, and railed last year against the growth of the “pseudo-recreational market” under a medical guise. On the other hand, he is a Mamedica shareholder, whose strongest available strain comes in at 34%. He also insists that Murray overstates the risk of psychosis, arguing that with careful prescription the dangers are “minimal” — a claim that prompts Murray to suggest Barnes visit some of his patients.

Despite the new Advisory Council review, meanwhile, much of officialdom seems blind to the risks. Last year, for instance, the CQC called for a multi-agency inquiry into whether the law was working as intended. It was ignored. Jones and others recently lobbied the Home Office and the MHRA, which is supposed to grant permission for every cannabis import. He has heard nothing back, and when I asked the same departments for comment, I got no response. Jones also wrote to the GMC asking them to investigate the role of the “specialist doctors”, but was rebuffed. “The GMC,” he was told, “is not an inspectorate, and we do not proactively monitor compliance with our professional standards.”

All the while, the bonanza continues. Barnes says he thinks 2-3% of the population could “potentially benefit” from taking medicinal cannabis — altogether including about two million people. Dalgety’s James Leavesley is not quite as bullish, but points out that 1.8 million people already take illegal cannabis for medical reasons. If even half that number switched to legal prescriptions, he says, “the market would be huge”. Given the apparent risks, however, not everyone will be lighting up.

Breakneck, a well-reviewed new book by Dan Wang, makes the case that China is catching up with America because the former is run by can-do engineers, and the latter by don’t-do lawyers. But if America’s lawyer problem is bad, ours is worse. Not worse because our lawyers are more powerful — America’s codified constitution and litigation addiction suggests the opposite — but because our lawyers simply weigh heavier in the makeup of our elite. The US has Silicon Valley, a colossal military-industrial complex and various other fearsome power centers that fight for control of the national steering wheel. In the UK, what is there outside of the City-adjacent, high-end service sector, of which corporate law is a dominant constituency? A few bioscience labs in the southeast, barred from expansion by bat-shagging Lib Dem councilors.

Corporate law, consulting and finance, the troika of City professions that Britain has bet the house on since Thatcher, are pitilessly effective at sucking up our elite graduate class. It’s the third and sometimes the second, closely identified with hyper-capitalist greed and PowerPoint-tweaking bullshit artistry, which get most of the attention. But corporate law might be the most symptomatic of a service-geared economy that’s totally dependent on the global financial tides for business — reactive rather than weather-making. “A bank is ultimately more real economy than a law firm,” says Jack*, an Oxbridge humanities graduate who works at Slaughter and May, one of the five “Magic Circle” companies which constitute the pinnacle of British corporate law. Banks have money, with which to do stuff. Corporate law firms are hired to help banks (and other businesses) do their stuff, whether it’s mergers, acquisitions, due diligence or whatever else. “We’re facilitators rather than actual doers.”

Jack, who’s around 30, is one of many humanities grads to have gone into corporate law recently. That’s another thing about the profession. Consulting and finance tend to attract those wanting to make a lot of money. But as mounting property and day-to-day living costs push formerly middle-class jobs like teaching into the precariat, corporate law has emerged as the profession of choice for clever, well-educated sorts who don’t have a particular facility with numbers or passion for business but would still like a salary that allows them the comfortable life they expected growing up. “When I was at uni,” says Adam*, another Oxbridge humanities graduate around 30, “there was a lot of quite confusing talk about finding a passion, that I listened to and got quite engaged with for a couple of years. And then I started to think a bit more practically about it.” He ended up at the London office of an American corporate law firm.

More From This Author

Gen Z’s favorite rabbi

By Josiah Gogarty

And neither are they especially worried about AI eating their Pret lunch. They use the technology to do basic research, but find it’s still too inaccurate to rely on without proper checks. Law firms don’t want to be feeding confidential info into AI systems anyway, which is perhaps why there doesn’t seem to be any immediate squeeze in hiring trainees quite yet. In the longer term, who really knows? AI evangelists would say that corporate law is exactly the kind of structured, fact-rich knowledge work that will be well automated sooner or later.

It certainly puts a faint crack into the profession’s reputation as the platonic ideal of a stable upper-middle-class career. But in the more immediate term, isn’t it the stability itself that’s the problem? Becoming a corporate lawyer “is the opposite of doing anything entrepreneurial”, says Jack. It’s for “very smart people who are fundamentally not risk takers”. The fact it holds such appeal contributes to Britain’s “massive growth problem”. When “the smartest people in the country go off to be fucking consultants and lawyers”, what hope do you have of founding companies and industries that actively shape the world rather than being dependent on globalization cruising along as usual?

Reactive doesn’t necessarily mean constricting, thinks Jack, who says that though “excessive or incorrect legal frameworks are not helping the UK”, this is not a problem of bad lawyers but “a problem of bad laws” — and bad laws are the fault of politicians, who increasingly conceptualize law as an immovable obstacle rather than something that their mandate demands they shape and reshape. But maybe that conceptual blindness is, as Wang says of America’s politics, due to a legalism which ultimately flows from the profession’s popularity and prestige among our elite. If every politician’s son and daughter and partner and best friend is a lawyer, why wouldn’t they adopt a similar mindset?

And in our case, there is no Californian tech idyll on hand as an alternative. There is, simply, the City. Trump 2.0 coupled up with Silicon Valley in its anti-legalistic crusade. Britain’s populist troublemakers will have to fight on their own, because there’s no extra-government power center that shares their sensibilities. (That’s if the Labour government of lawyers doesn’t pre-empt them, as Justice Secretary Shabana Mahmood has recently shown intimations of doing.) Good corporate lawyers, and good lawyers in general, might know how to wind their way around Britain’s legislative maze with consummate skill. But a non-legalistic kind of politics knows a more effective trick: that the best way around something is often through it. You don’t unpick the knot — you take a knife to it.

*Names have been changed

This time might be different. Britain’s unemployment rate, according to figures released this week by the Office for National Statistics, is at its highest in four years. We are in a jobs recession. And it appears that young people are being disproportionately affected. Since ChatGPT was released in November 2022, entry-level jobs have dropped by one third — a development for which large language models have been blamed. Companies are increasingly replacing junior workers with AI that can write code, analyze data, and handle customer service. The first rungs on the white-collar ladder — research assistant, junior analyst and so on — are disappearing.

Previous unemployment crises were temporary. Workers, young and old, waited out the recession, then found their place in the job market. But AI doesn’t go away when the economy improves. It only gets better. Paradoxically, we may be on the verge of unprecedented economic growth alongside unprecedented unemployment.

Until fairly recently, it was thought that the first modern jobs to be automated by AI would be those requiring the least academic education: manual jobs, such as those in manufacturing and agriculture. That forecast turned out to be incorrect. The tasks once considered particularly challenging, uniquely human (writing, programming, art) are the ones most vulnerable to current AI capabilities. In contrast, many skills that come easily to us (moving dexterously, making emotional connections) are much harder to replicate using AI.

Consider the case of Annabel Beales, a copy editor. In 2023, she landed her “dream job”, editing copy for a garden center, drawing on specialized knowledge from her university degree and formal training. But eight months in, her workload started to lighten, and she overheard her boss advising colleagues to “[j]ust put [their writing] in ChatGPT”. She was laid off six weeks later. Beales, a white-collar worker, bore the brunt of AI, not her gardener colleagues.

Some economists warn that millions of jobs could vanish within a few years. Others argue new roles will emerge faster than old ones disappear. Tech leaders promise AI will free us from drudgery while expert forecasters fear mass displacement (and replacement).

But some patterns are already emerging about which jobs will disappear first and which might survive longest. Of particular importance is the matter of autonomy — the extent to which AIs can act without supervision. ChatGPT can write emails and generate reports, but someone still has to send those emails and act on those reports. These chatbots, however, have led tech leaders to repeatedly insist AI will “augment” rather than automate. If demand doesn’t rise correspondingly, augmentation still reduces jobs. One person can now do the work of three.

But the real change will be autonomous AI agents. In June, one of us — Jason — attended an event, in San Francisco, fully organized by a team of AI agents. As far as we know, it was the first of its kind, and it was quite delightful. Sure, the AI agents couldn’t yet book a proper venue — we met in a public park — or organize catering. But 26 people still showed up. The agents are now setting up their own merch store. In the Bay Area, commuters often pass adverts for AI sales agent startup, Artisan, urging employers to “stop hiring humans.”

Not all challenges have been solved. AI models mostly still can’t act autonomously, make truly new scientific discoveries, or coordinate at scale — but these are all tractable engineering problems. And companies are hard at work to solve them.

So how do you predict which jobs will disappear? The most important factor is the “time horizon” of a task: how long an average human needs to complete it.

In Silicon Valley, where cutting-edge AI is being developed, the graph that people watch most closely is the so-called “time horizon” of tasks that AI can do well. This measures how long the technology can operate like a good employee. METR, a research non-profit that evaluates AI capabilities, has been tracking this phenomenon. They’ve found that AI’s ability to complete longer tasks is doubling every 3.5 to seven months. Existing models can handle tasks that take humans up to about 20 minutes with 80% reliability. At the moment, when put to work on tasks requiring more than four hours, the models almost always fail. But if this exponential trend continues, AI agents could tackle month-long projects within a decade.

For example, call center workers spend their days handling calls that take 10 to 20 minutes. Each call is a complete task an AI can master. The same goes for freelancers writing blog posts or paralegals drafting contracts, or analysts entering data.

Compare this, though, with a CEO whose day is broken up into activities — a meeting, a decision, a public appearance — that each requires years of context which a machine can’t yet replicate. The CEO might spend 30 minutes deciding whether to acquire a competitor, but that decision draws on decades of experience with similar deals, knowledge of company culture, and understanding of market trends. It’s not really a 30-minute task.

This suggests the first rule of a longer-lasting job: increase the context needed to perform your work. The rule corresponds well to climbing the corporate ladder: the higher you go, the more your decisions depend on long-term strategic planning and years of accumulated knowledge that can’t be easily replicated.

But task duration alone doesn’t tell the whole story. Other factors matter too. Every support chat, every line of code, every written report creates data that is used to train AI models. Companies are already deploying “productivity monitoring” software that records employee screens and keystrokes: ostensibly for performance review, but really to capture how humans complete tasks.

Your particular industry might have some resilience. Hollywood actors stopped AI from using their likenesses because they could halt billion-dollar productions if their demands weren’t met. Dock workers keep automation at bay because they can shut down ports. White-collar professionals, learning from the dock workers, might organize quickly enough to survive the first round of automation. In contrast, freelancers and contractors — who have no collective bargaining power — might be left worse off. Indeed, Duolingo’s CEO announced they will “gradually stop using contractors to do work that AI can handle” , though he later pulled back after public backlash.

The transition, then, won’t happen overnight. At first, companies will keep employees as managers of AI agents, with each worker supervising automated systems that gradually take over their tasks. And some work will remain inherently human. We still watch people play chess even though computers have the beating of them. Live music, sports, and theatre draw audiences precisely because humans perform them. The appeal lies in limitation and struggle. We connect with the effort, not just the outcome.

Trust is important too. We’ll keep human politicians and military commanders for the reason that people are reluctant to delegate life-and-death decisions to machines. Parents want human teachers for their children, patients prefer human doctors for serious diagnoses, and clients choose human lawyers for high-stakes cases.

But preferences and levels of trust do change, eventually. Will we still want human entertainment when AI can create unlimited, personalized experiences tailored exactly to our tastes?

Overall, perhaps it is lockdown-friendly remote work, the kind that became the norm during the Covid-19 pandemic, that is the best insight into what is to come. If your job can be done from home via email, Slack, and video calls, then it is likely that AI will soon be a competent substitute for you. The pandemic revealed how many roles require only digital tools and clear instructions. Those jobs became automation-ready overnight.

Suggested reading

The UK’s last shot at AI relevance

By James Kingston

The enormous changes afoot demand deeper questions about work’s purpose. Beyond paychecks, jobs provide structure, identity, social connection, and meaning. The question “What do you do?” shapes how we see ourselves and how others see us. But the solution isn’t choosing between economic security and meaningful work — it’s decoupling them. Guarantee baseline economic security while creating new forms of meaningful participation outside traditional employment. Preserve opportunities for skill development, interpersonal connection, and societal contribution, even as jobs change dramatically.

The next couple of years are crucial. Building superintelligent AI should not be treated as inevitable. These systems require massive capital investment and government support. Data centers need licenses and construction approval. And union leaders and professional associations have a role to play. Instead of reacting after automation hits, they should get ahead of it and protect their members proactively.

Right now, then, we face a genuine choice about whether to build these systems at all. If we proceed, here are some guiding principles.

First, we should tax AI agents like we tax human workers. Governments should use that revenue to fund programs that maintain worker agency rather than creating helpless dependence.

Second, people should have democratic access to technology. Give everyone a compute allocation — enough processing power to run their own AI agents. We should prevent technology from concentrating power in fewer hands.

Third, we should preserve meaningful human involvement. Society should not stop at the low bar of requiring a human “in the loop”. Instead, pursue robust, effective techniques of supervising AIs even when their capabilities outstrip our own. When humans begin to drag down machines — like in chess — we lose the incentive to include them. But sometimes we need to choose human participation over pure optimization.

These changes aren’t inevitable. Offshoring manufacturing in the Nineties was a policy choice. So is the deployment of highly capable AI across the economy. Earlier this year, in his speech outlining an “AI Opportunities Action Plan”, Keir Starmer proclaimed that the UK must “make it work for working people”. To succeed, his Labour government will need to understand what makes jobs vulnerable: how long it takes to automate the smallest constituent task. Young people, contractors, and digital workers face the highest risk. But when they become unemployed — a process that has already begun — the rest of us will follow.

We should build technology to promote human liberty and prosperity. If technology fails to meet those goals, then it is no real progress.

What’s striking is how much of the debate recorded by Thucydides uses the language of what we would now consider international law: treaty obligations, even something approaching customary law in the obligations owed by colonies to their founding cities, the Corcyrans’ offer to resolve the dispute by third-party arbitration. But equally striking is that in Thucydides’ narrative, little of this amounts to more than a cover. Both sides’ ultimate appeal is to the raw self-interest of the Athenians, under the cloud of growing tensions with Sparta.

Classical Greece (and the later Hellenistic and Roman periods) was anarchic, in the sense used in international relations theory: each state was fundamentally governed by its own interests. But that very anarchy was tempered, if to a limited degree, by customs — the preservation of the Olympic truce, the principle that treaties should be kept to, some degree of protection for sacred sites, and some mercy for non-combatants — that are not dissimilar to modern international law. No Greek state would have sacrificed its vital interests for these principles, all of which were, to some degree or another, breached over the course of the Peloponnesian War. But even two millennia removed we can see the outlines of a system that must have oiled the wheels of state interaction and regulated the petty, minor disputes that might otherwise consume officials’ time or flare up out of all proportion to the offense.

In this basic state of affairs, there is a lesson that can be lost in the overwhelming complexity of modern public international law: that there are two fundamentally important roles for international law. First, it provides a framework for the day-to-day running of the international system. If there were no settled rules over the treatment of diplomats, and every issue arising from consular relations had to be conducted from first principles, if every matter of international trade had to be negotiated from scratch, if there were no accepted principles of maritime navigation, diplomatic departments the world over would buckle under the workload. Pointless spats would become major crises on a regular basis. Some of this is specified in treaties, some just the result of established custom, but without basic rules to govern the little things, the thousands of ways that states interact with each other every day would become completely unmanageable. For the most part, these interactions are so minor and uncontroversial that the rules that govern them can safely be treated as binding.

The second, more sweeping, role for public international law is to set down clear expectations about what the behavior of states ought to be. Thus states should keep to their treaties, they shouldn’t start unjustified wars of aggression, they should look to spare civilians where possible in war, and so on. That, by treaty or general custom of the international community, these sorts of principles exist gives a strong steer to states that might be tempted to breach them, and provides diplomatic cover to other members of the community in punishing any breaches. The very fact that there are principles broadly agreed in the international community does not, however, mean that it will always be possible to resolve a dispute by following the principles over hard-edged interests and the balance of power. In a system without any true enforcement, it’s somewhere between naïve and wilfully stupid to think that states will sacrifice their vital interests in the name of abstract ideals.

Except, of course, for Britain. And it’s here that the real problem with the Government’s approach to the dispute over the Chagos Islands comes into focus — it seems determined to collapse any distinction between a useful system of rules governing day-to-day interactions and what Britain’s vital interests are. Instead, we’re stuck with an establishment that seems obsessed with the idea that the grubby business of national self-interest can be determined by dusty submissions and dry legal clarity, even as the rest of the world becomes ever more confused and chaotic. It seems to believe that questions of national sovereignty can be as dependent on arcane rules as the finer points of taxation treaties.

And the answer, of course, is that they can — but only one way. No other country is going to follow suit. We can provide a beautiful role model for the rest of the world in our determination to adhere to every bit of the spirit and letter of international law, but it’s farcical to think that anyone else will do the same. Yet this attitude — if only we follow the rules one more time, everyone else will realize how wonderful they are — has hamstrung British policy for decades now. Our conviction that the ongoing dispute over Chagos was what was preventing Russia from realizing the error of its conquering ways in Ukraine, or China abandoning its nine-dash line, is of the same artless innocence as our insistence on not only following, but gold-plating to the hilt, every new EU directive during our membership, even while other EU members smirkingly ignored the inconvenient aspects. The unworldliness of our governing class would be comical were it not such a betrayal of our interests.

There is only one way that this can go. So long as the UK holds itself open as an enthusiastic victim, those countries that do still know how to weigh their national interests will pounce. £101 million a year to Mauritius for the privilege of allowing us to surrender territory to them. How much will we one day give Spain for Gibraltar? Will we be paying for Argentinian drilling equipment as the price for surrendering the Falklands? No wonder we were so comprehensively out-negotiated by the EU over Brexit, and no wonder we’ve so meekly fallen in with the current US administration’s chaotic vision for the world.

Perhaps this is all according to plan, part of our rulers’ grand scheme to make Britain the first truly post-national state, a herald of the new world order where law and lawyers rule supreme. But if that’s so, then they’re missing the most essential part of the picture, that voters won’t tolerate such wilful disregard for British interests indefinitely. If Brexit was the canary in the coalmine of rising anger at high-handed interference by abstruse international bodies, it’s not a warning that has been given any heed. The Chagos deal itself may not — yet — have achieved widespread cut-through, but whether it’s opposition to the ECHR, or increasing backlash against trade deals, there’s a steadily growing current of deep suspicion towards international law in general. It’s become increasingly fashionable, in parts of the online right, to deny the very existence of international law. With Reform consistently leading in the polls, how long is it before the UK has a government consciously committed to repudiating the rules-based system in principle? Nor, of course, is the UK alone in this. The US is, if anything, ahead of us, and much of Europe not far behind (even if popular anger there may have been tempered in part by the wry disregard many European nations have long shown for the more restrictive elements of the international legal system).

There’s a sense in which this is a tremendous problem. For all the pomp and imperial overreach of modern international law, it does serve a purpose. The West – including the UK – has done extremely well over the last century out of a system that it broadly designed to serve its own interests. To the extent that the rules-based international system collapses completely, we are immensely vulnerable as a medium-sized power dependent on free-flowing global trade. It’s hardly in our national interest to return to that kind of Thucydidean interstate anarchy that would require us to expend real resources not on ever-expanding welfare, but on guns and ships.

But when we reach that point — as looks increasingly likely — it will be that imperial overreach of the worshippers of international law that will have been the cause. Far from leading to some kind of Fukuyama-esque internationalist utopia, the hubris of Starmer and his ilk can only undermine democratic consent for those bits of the liberal international order that do work. Once democratic support for, and trust in, the basic principle that resolving disputes through rules is gone, it will be difficult to regain. Modern populism is characterized by its deep suspicion of any kind of international cooperation beyond raw power plays. We risk training a generation of future political leaders to have an inbuilt hostility to international law, even where it might in fact serve our interests.

There’s still time to fix this. A sensible government could pull us out of treaties that do nothing but tie our hands — the Aarhus Convention, the Ottawa Treaty, the Convention on Cluster Munitions — and take a hard-headed look at whether others, like the ECHR, are worth the constraints they place on us. A sensible government could rip up the Chagos deal even at this eleventh hour. Indeed, a sensible Parliament could and should vote it down. Despite the Government’s attempts to avoid scrutiny by concluding the deal just before recess, it has committed to implementing the treaty through primary legislation, and is required in any case to lay treaties before Parliament pre-ratification under the Constitutional Reform and Governance Act 2010.

There’s no real prospect, though, that this government will do any of that. Its key members have been forged in a world of grandly benign public law, and seem genuinely incapable of understanding why people might actually care for their nation. Given Labour’s vast majority, there is likewise little hope of MPs exercising even their limited powers of scrutiny to block the deal. This is a governing class that takes pride in a self-flagellating attempt at well-meaning atonement for (real or imagined) historical sins. A change of heart is sadly beyond the realm of the likely, or even perhaps possible. By the time we get a government prepared to stand up for British interests, it may be too late to salvage those parts of the system that actually work. The result won’t just be the collapse of everything Starmer and Hermer have dedicated their lives to — it will be a narrower and more suspicious world for all of us.

Thucydides’ History is, as much as anything else, the story of how even the limited constraints of custom and diplomacy were ever more swept aside in favor of ruthless self-interest under the pressures of war. Less than 20 years after the civilized arguments of the Corinthians and Corcyrans, Thucydides records another debate at Athens over the fate of Melos, a rebelling member of Athens’ empire. The Melians appeal to the Athenians’ better nature; they are unsuccessful. In perhaps the bleakest statement of Thucydides’ worldview, the Athenians justify their decision to slaughter the Melians with the famous “δίκαια μὲν ἐν τῷ ἀνθρωπείῳ λόγῳ ἀπὸ τῆς ἴσης ἀνάγκης κρίνεται, δυνατὰ δὲ οἱ προύχοντες πράσσουσι καὶ οἱ ἀσθενεῖς ξυγχωροῦσιν”: “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” The Government will regret its role in bringing back this predatory world.

UnHerd can now reveal that this was a statement to police by Dr Astha Soni, a pediatrician at the neonatal unit where Letby worked. And it raises serious doubts about the claims that Letby attempted to murder two babies by poisoning them with insulin. Yet the document was not disclosed to the defense before her first trial began, nor during her unsuccessful bid to appeal. Furthermore, we have discovered a second critical omission, involving the outbreak of a dangerous virus in Letby’s neonatal ward.

As Thirlwall’s inquiry proceeds, troubling concerns over Letby’s seven convictions for murder and eight for attempted murder — she is now serving 15 whole life sentences — have only swelled. The UK-based consultant neonatologists Svilena Dimitrova and Neil Aiton have submitted detailed reports on three of the babies’ deaths that refute the evidence given at Letby’s trial, and a separate panel of international experts led by Canadian neonatologist Professor Shoo Lee concluded last month there was “no medical evidence to support malfeasance” in the deaths Letby was convicted of causing. Their assessment: the babies died from “either natural causes or bad medical care”. It all points to a troubling question: is Lucy Letby truly guilty beyond reasonable doubt?

Dr Soni’s secret, undisclosed police statement concerns “Baby Y” — born just after midnight on 2 November 2015, some months into the rise in neonatal mortality at the Chester unit that the police were investigating. Letby was never formally accused of trying to harm him, but the prosecution experts who gave evidence at her trial believed she poisoned him with insulin, just as she did Baby F and Baby L, whom she was convicted of trying to murder. Since Soni’s statement undermines that analysis, it raises worrying questions about the experts’ evidence in those other cases.

Baby Y was a big baby, born two weeks after his due date following a long and difficult labor. He was finally delivered by an emergency cesarean, and transferred to the hospital’s neonatal unit early on 3 November. This happened, Soni said in her statement, after the baby experienced “dusky episodes”, struggling to breathe and turning blue. In the second of these episodes, Soni told police, the baby was not only blue but unconscious, with “his eyes rolled up” and his torso “floppy”. Once on the unit, he was given oxygen, but “didn’t pick up straightaway”. Half an hour later, Baby Y suffered what Soni called a “seizure” — turning blue and making “no respiratory effort”.

When Dr Soni saw the baby again later that night, she said, he was hypoglycemic. Despite increasing doses of dextrose, his blood sugar level remained stubbornly low. His diagnosis, Soni said, was “congenital hyperinsulinism” or CHI, a genetic condition in which babies produce excess insulin. This diagnosis was supported by endocrine experts at Alder Hey hospital in Liverpool whom the Chester doctors consulted, the statement went on. It is also possible that he was suffering from “transient hyperinsulinism”, a non-genetic, common condition with natural causes whose symptoms would have been identical. After more seizures Baby Y was given several drugs and slowly improved, but outpatient treatment for “persistent hypoglycemia associated with seizures” had to be continued for over seven months.

Medical experts for the Letby prosecution saw it differently. In a statement to police in 2021, seen by UnHerd, Professor Peter Hindmarsh of University College London, who was called as an expert witness by the prosecution over the cases of Baby F and Baby L, commented on a test on a blood sample taken from Baby Y on 3 November. It showed that while the boy’s insulin level was high, the concentration of C-peptide, a substance produced in tandem with insulin, in his blood was low. According to Hindmarsh, this meant Baby Y’s hypoglycemia must have been caused by “exogenous” insulin administered by someone in the neonatal unit.

Other prosecution experts agreed. Dewi Evans, the retired pediatrician who had played a central role in the police inquiry and also gave evidence in respect of most of the babies Letby was convicted of harming, also reviewed Baby Y’s medical records. He told police in a statement that he thought his first three seizures had been caused not by CHI, but the “trauma” of his difficult birth, agreeing with Hindmarsh that he had later been given “insulin from an external source”. A third prosecution expert, Dr Sandie Bohin, backed this position too.

However, we spoke to two practicing neonatal consultants who say all Baby Y’s “dusky episodes” and seizures could have been caused by naturally occurring hyperinsulinism, either transient or CHI — which, they say, is far more common than the prosecution experts appeared to believe. They say what matters most is that Baby Y had a confirmed diagnosis of CHI and still needed treatment long after leaving the Chester unit.

Shoo Lee’s expert panel has come to a similar conclusion. Its summary report, now being examined by the Criminal Cases Review Commission (CCRC), says naturally occurring hypoglycemia affects up to 40% of newborn babies, and that the relative levels of insulin and C-peptide seen in babies F, L and Y are also “not uncommon”. The timeline here is important too, because Baby Y’s first three seizures all took place before Letby ever encountered him.

If Soni’s statement had been given to Letby’s defense team, they might have called her as a witness — and explored why she thought Baby Y was suffering from CHI rather than a deliberate insulin overdose. That, in turn, might have enabled them to question the conclusions reached by the prosecution experts around babies F and L. In those cases, too, they claimed that the combination of high insulin and low C-peptide levels pointed to deliberate insulin poisoning.

We asked the Crown Prosecution Service why it failed to disclose Soni’s statement, but it refused to answer, stating only that Letby had been convicted and had lost her appeal. But its former chief, Lord Ken Macdonald KC, suggests the statement should likely have been shared. “The legal test is whether evidence is capable either of undermining the prosecution case or assisting the defense, and if it is, it should be disclosed before trial,” Macdonald says. “It sounds to me that the material you’ve found does meet that standard, and so should have been made available to Letby’s defense.”

Beyond the questions around Soni’s deleted statement, our investigation has uncovered a second key omission. Neither of the juries in Letby’s two trials was informed that a dangerous respiratory syncytial virus (RSV) outbreak was ravaging the neonatal ward. This breakout was so severe that it forced the unit’s closure to new admissions — on 18 February 2016, the day after Baby K, one of the babies Letby was convicted of trying to murder, was moved from Chester to another hospital, where she later died.

Further Reading

The flaws in the Lucy Letby case

By Adam King

This is despite the fact that staff at the hospital were clearly concerned about the outbreak. UnHerd has seen a police statement by Dr Bohin, dated 2021, which refers to a “management synopsis report” on the virus, a spreadsheet listing all the babies who contracted it, along with references to several similar documents about the outbreak.

Until the eve of her first trial, Letby was charged with murdering Baby K, but the prosecution asked the judge to alter the indictment to attempted murder. It was confident Letby had dislodged the child’s breathing tube — but, to quote the prosecution counsel, “we cannot and do not say” that what she did caused the girl’s death. He did not mention the virus sweeping through the neonatal unit when Baby K was born. For her part, Bohin made the dangers of RSV clear. “Its effects are usually mild, but in preterm infants RSV is responsible for significant mortality and morbidity,” she told police in a statement. “The virus is spread easily and can live for prolonged periods on hands and hard surfaces. There is no cure.” Baby K’s medical records do not say whether she was tested for RSV, but she had been in respiratory distress, and if she did contract the virus at Chester, it may have contributed to her death.

Meanwhile Shoo Lee’s expert panel is skeptical of the prosecution’s argument that Letby tried to kill Baby K by dislodging her breathing tube, suggesting instead that the hospital had used the wrong size tube, causing air to leak.

Beyond the medical questions here, these documents could have implications for Letby’s future. The CCRC and the Court of Appeal can consider fresh evidence that might, in theory, have been available at the time of a trial — if they are satisfied that to do so would be in the interests of justice. But they also have to consider whether there is a reasonable explanation why it was not used by the defense, and there is no stronger reason than a failure by the prosecution to disclose evidence to start with. This is ultimately why the cases of Baby Y and Baby K may yet be so significant.

The answer is that they have all been shortlisted for Islamophobe of the Year awards by the Islamic Human Rights Commission (IHRC), a British campaign and advocacy group with close links to the Iranian government.

It all sounds like a bit of a joke. The “Commission” used to promote the Awards in a semi-comedic style: as an irreverent swipe at those who have shown hatred to Muslims in public life. But there was always a bad smell about all this: having a laugh, about hatred. The apparently light-hearted format enabled fierce denunciations of others for the same reasons that are getting people killed. In 2015, the IHRC gave another of its Islamophobia Awards to the French satirical magazine Charlie Hebdo — just two months after jihadis slaughtered 12 people at the magazine’s offices in Paris.

The origins of this unsavoriness are no secret. In his 2023 review of the Prevent anti-extremism program, William Shawcross described the organization as “an Islamist group ideologically aligned with the Iranian regime”, with a history of “extremist links and terrorist sympathies”. Until recently, the IHRC’s director was Saied Reza Ameli, also secretary of Iran’s Supreme Council of Cultural Revolution.

Nevertheless, thanks to its campaigning on Islamophobia, the IHRC has had a notable influence on British public life. And Islamophobia is now a pressing concern of the British state and Labour government.

More from this author

We need to talk about Southport

By Ben Cobley

How can we best understand this concept of Islamophobia? One of its problems is how it seems to mean whatever the likes of the IHRC dislike at any given moment. The literal meaning, though, is implicit in the word: Islam-phobia. It suggests an irrational fear of Islam, prompting questions of whether fear of Islam is itself irrational (a view that would match Islamic doctrine) or whether versions of that fear can be rational.

From the Islamist scene in Britain, a group called Muslim Engagement and Development (MEND) has placed itself at the forefront of efforts to identify and combat Islamophobia. It provided significant support for a landmark report in 2018 by the All-Party Parliamentary Group (APPG) on British Muslims, co-chaired by current Health Secretary West Streeting MP.

MEND stated that Islamophobia was:

“…a prejudice, aversion, hostility, or hatred towards Muslims and encompasses any distinction, exclusion, restriction, discrimination, or preference against Muslims that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

This, you might say, is a maximalist position. In a cutting response to the APPG report for Policy Exchange in 2019, Trevor Phillips, John Jenkins and Martyn Frampton noted that “the comprehensiveness of the behavior that MEND seeks to place beyond the pale is striking”. A whole smorgasbord of other potential definitions can be found in the APPG publication. Some of these definitions came from academics. One came from the Organisation of Islamic Conference (OIC), a grouping of Muslim governments from around the world. The OIC described Islamophobia in 2007 as “the worst form of terrorism”. In a follow-up report, it said:

“Islamophobia signifies the contemporary proliferation of discrimination against Muslims and distortion of Islam and is partly due to the ignorance and lack of understanding of Islam in the West. It would be an unfortunate error of judgment in believing that Islam is linked to terror; that it is intolerant of other religious beliefs, that its values and practices are not democratic; that it favors repression of freedom of expression and undermining human rights.”

The APPG report makes similarly bold claims, the core one being that “Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness.” The behaviors it deemed Islamophobic include those which are already illegal, such as threats of violence, and discrimination at work. But the report also claims that Islamophobia encompasses Muslim students failing to win places at top-level universities, and the schools inspectorate Ofsted questioning whether young girls should be wearing the hijab. And if you think these definitions are overly expansive, then you might already be an Islamophobe. Another example of Islamophobia, the report says, is “accusing Muslims… of exaggerating Islamophobia.”

Suggested reading

Why Islamism became woke

By Ayaan Hirsi Ali

Islamophobia is a total wrong, it appears: blasphemous but also irrational and immoral; rooted in Western racism and ignorance. And from it arises the error of thinking there is any link between Islam and young Muslim men yelling “Allahu-Akbar” (“God is Great”) as they plunge knives into passers-by on European streets. As the OIC points out, this would be unfortunate. Not wrong, inaccurate or unfactual, but unfortunate and an error of judgment.

These claims are worth unpacking, not least for how they demonstrate the characteristic Islamist fusing of a so-called “mediaeval” religion with the techniques and styles of Western secular modernity, particularly progressive social science.

From the Islamic perspective, Islam cannot be associated with bad things because it represents submission to a perfect God. All problems associated with Islam and Muslims therefore must originate outside Islam. For the more ideological sociologists and historians meanwhile, bad things in society necessarily have their root cause in Western culture, capitalism, Whiteness, colonialism, Englishness and the rest.

These two perspectives come together in what we might call Islamist sociology, which treats Islam as a force of progress in the world. Progressive ideology is particularly amenable to Islamists, for it conveys the ideas that believers are on the right side of history. History is on their side. The world is moving in their direction. If you do not accept their version of truth, you will eventually lose.

The West’s ignorance of this perspective matches the Islamic notion of “jahiliyya”, which describes the age of ignorance before the Prophet Mohammed received the word of God. Applied to Western countries, it supposes that we are in a pre-Islamic state of ignorance. Mainstream Left-wing history and social science see things in a similar way. In this view, Muslims and other immigrants serve as a motor of change, bringing us to a higher historical state.

In this way, the notion of Islamophobia helps to bring together Islamic and Western intellectual traditions. It converts Islamic law — or merely the desire of Islamists to punish those who displease them — into secular rationalist and moral language, helping to mobilize both Muslims and non-Muslims in support. In effect, it works as a form of linguistic laundering: converting religious authority into a general, all-consuming rationality and morality. This makes it an effective tool. Critics of Islamophobia often speak of how it gets “weaponized”. This assessment is accurate, for the concept is consistently used as a prop to punish, but also to deter and bring others onboard via the appearance of strength. At the very least it is a form of social technology, working to advance the group’s aims, to build the size and strength of the group, and to weaken its opponents.

In this regard, the lack of an agreed definition can be a strength. The nebulousness of “Islamophobia” grants maximum flexibility to those who deploy this weapon. It is a weapon that can be used freely to denounce anyone who displeases Islamists and their allies. It can be invoked against the authorities, to intimidate and win concessions. And it can be used against fellow Muslims, as a more ecumenical version of takfir. (Takfir is excommunication from Islam, or society, potentially meriting death).

If we are not to be Islamophobic, it seems we must defer to Islamists, to their interests and their interpretation of their religion as perfect. We must bow to Islamists’ authority to decide the boundary between right and wrong in relation to Islam. This fits into the Islamic distinction between the “dar-al-harb” (the House of War) and the “dar-al-Islam” (the House of Islam): assigning all bad things in the world outside Islam, to a state of war. Through this framing, Islamists can bypass inconvenient issues like the “grooming’”(or “rape”) gangs and Islamic terrorist attacks. The culprits are not the individuals involved, but external forces: lax morals in Western society, colonialism, wars in Iraq and Afghanistan, Israel-Palestine and discrimination against Muslims in the West.

This distinction between the House of War and the House of Islam helps explain another of the Islamists’ tendencies: that of inveigling themselves with the authorities one minute and denouncing them in the strongest terms the next. There is a tension here. Islamists see the West as a place which, while not of Islam at the moment, at least has or might have arrangements with its representatives. At the same time, the House of War is implacably hostile to Muslims and must be fought against. The APPG report points towards the latter in describing Britain as an “Islamophobic environment”: it is another way of describing a House of War.

In this framing, like the closely related idea of systemic racism, everything is touched by Islamophobia and so everything will have to be changed to defeat it. From the track record of advocates, their maximalist approach and their intolerance of differing views, they will likely never be satisfied.

Nevertheless, the British state is trying to satisfy them. Angela Rayner, the Deputy Prime Minister, recently set up a group “to deliver a definition of Anti-Muslim Hatred/Islamophobia within six months”. Explaining the creation of this group, the government said that “incidents of anti-Muslim hatred reached the highest number on record in 2024.” The group’s chair, the former Conservative minister Dominic Grieve KC, said the group’s task was to balance the pressing need to impose a definition on behalf of British Muslims “with the unwavering requirement to maintain freedom of thought and expression under law for all.”

Eventually the Government will have to decide: between censorship and freedom. If a definition is indeed agreed and, as activists demand, operationalized, the effects will be significant. Media reporting will become even more fraught with risk, leading to a more aggressive culture of self-censorship. Academic work likewise: further undermining the culture of truth-seeking in universities. To resist the demands of Muslim activists in the workplace will become perilous for both bosses and employees, clearing the way for Islamic practices to be embedded in daily routines while others are blocked for being discriminatory. At Michaela School, for example, the activists have been temporarily set back, but will eventually win.

It seems that Western traditions of free speech and inquiry, already straining under repeated attacks, will no longer apply in relation to Islam and Muslims in British public and institutional life. And so gradually, seemingly inexorably, Britain will continue its weary progress into becoming an Islamic state in all but name. Islamophobia is a crucial tool in the battle to make that happen: a startlingly effective social weapon.

Debanking is when a bank closes an account in order to censor or punish the customer for political or religious views. The banks, in these cases, are typically responding to ideological pressure or to perceived reputational risk. As you might imagine, anger over debanking rapidly merged with concerns shared by crypto companies, which have also contended with access issues to traditional banking. One CEO shared a letter in which the bank Chase said it was closing his company’s account.

The complaints about debanking were echoed and amplified by Donald Trump. His wife, Melania, claims that she herself was debanked. More broadly, the MAGA movement has ample experience of being booted off social media platforms. The matter of tech debanking, therefore, has been rolled into existing MAGA complaints. By this account, the US government has restricted freedom of expression via several coercive means.

In keeping with this view, Trump’s allies have called for a dismantling of financial watchdogs such as the Consumer Financial Protection Bureau (CFPB). “Delete CFPB”, wrote Musk, echoing Andreessen, who blamed debanking woes on the agency. Examine the policy upheavals of the past two months, though, and you will note that such measures will not have the intended effect.

Far from protecting freedom of speech, the new administration has made it easier for financial platforms to kick users off for political expression. Among the red tape it has slashed were some CFPB rules that were designed to protect, of all things, free speech. This should all work out well for Andreessen, who is one of Silicon Valley’s biggest investors in crypto — the sector that, more than almost any other, yearns for looser regulation.

More from this author

The MAGA battle over foreign workers

By Lee Fang

Just as the casual observer loses sight of the magician’s card, many observers missed Andreessen’s sleight of hand. His remarks on the Rogan show convinced those enraged about censorship to support a niche campaign to unwind protections against crypto fraud.

In this way, Andreessen conflated two unrelated issues for his own financial benefit. In a worrying global trend, a wide array of people — Canadian truckers, Brexit supporters and Palestinian activists — have been removed from financial platforms without due process. Unrelatedly, regulators concerned with keeping crypto startups in compliance with banking rules have taken steps to crack down. Some executives involved in the crypto trade have said they have had difficulty using traditional bank accounts simply because they were flagged by the system. The truckers were debanked; the crypto executives were not.

Consider the viewpoint of regulators. On several occasions in recent years, crypto brokerages and emerging cryptocurrencies have imploded overnight and left ordinary customers with nothing. Regulators have also repeatedly accused crypto startups — including those backed by Andreessen — of a variety of alleged financial crimes. These offenses have included the undermining of rules on money laundering, and the violation of sanctions on terrorist groups. It’s not entirely surprising that those entrusted with safeguarding the financial system view these schemes with extreme suspicion.

As free speech has become a battleground for everyday Americans — waged on college campuses, over political correctness in the workplace, and on social media platforms — a simultaneous legal revolution has taken shape. Corporate actors seeking to eviscerate rules and restrictions on business conduct have attempted to conflate commercial action with free expression. In other words, the business elite is piggybacking off the free speech debate for its own ends.

“The business elite is piggybacking off the free speech debate for its own ends.”

This piggybacking has been taking place for decades. Lawyers have poked and prodded, attempting to find new legal maneuvers to classify business behavior as protected speech. In this vein, Southwest and Spirit Airlines have repeatedly litigated to block a regulation that required airlines to display the full price of tickets. Another example comes via the private rating agencies that were responsible for falsely certifying the safety of risky mortgage-backed securities in the lead up to the 2008 financial crisis. In court, the agencies argued that they were simply expressing First Amendment-protected speech, and were thus exempt from fraud lawsuits.

These efforts largely failed in court, but other, similar arguments have begun to prevail increasingly often. In the Supreme Court ruling Sorrell v. IMS Health Inc., Justice Anthony Kennedy struck down laws against health care firms mining and selling patient data to pharmaceutical companies. The patient data laws, Kennedy wrote, violated commercial speech laws and “burdened a form of protected expression.” In similar fashion, Kennedy and his Supreme Court colleagues cited the First Amendment when ruling in 2018 that the imposition of union fees on non-union public sector employees was unconstitutional. The imposition of fees, they said, amounted to coerced financial speech.

Most famously, Kennedy wrote the majority opinion in Citizens United, the 2010 decision that allowed unlimited corporate and independent spending in elections. The court ruling ushered in our current era of engorged Super PACs and dark money spending, all in the name of the First Amendment. The rules that had governed the financing of political campaigns, Kennedy wrote, had unduly restricted “corporate political speech”.

More from this author

Everyone loses in America's misinformation war

By Lee Fang

The flood of challenges continues. The First Amendment is being used to attack corporate regulations, ethics laws and consumer safety rules. Corporate attorneys are attempting to overturn the few existing laws restricting robo-calls and automated texts; interest groups funded by Google and Facebook have claimed that antitrust enforcement would increase censorship and stifle free speech; and state bans on lobbyist gifts to legislators are continually under threat. Lawyers have argued that such gifts are not bribery, but an example of free expression.

The new administration might find that this legal trend threatens some of its most consumer-friendly reforms. Processed food industry lobbyists have threatened to use First Amendment lawsuits to strike down the Food and Drug Administration’s new updated guidelines on what foods can be labeled as “healthy” — a cause that has been championed by Robert F. Kennedy Jr., Trump’s new health secretary. Trump has also promised to minimize pharmaceutical advertisements on television, but this endeavor, too, is likely to face challenge in the courts on the grounds of freedom of expression.

All of this is taking place without society having made much progress on what we should consider genuine freedom of expression. Banks are still free to arbitrarily remove customers, college students continue to face coercion over free speech, and social media platforms retain near-untrammeled power to censor their users.

Corporations, then, have taken an expansive view of the First Amendment in order to remove constraints on their power. But ordinary Americans have been left on the sidelines, as vulnerable as they ever were to government and corporate censorship.

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.

More from this author

Do Just Stop Oil deserve to be in prison?

By Adam King

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.

Suggested reading

The danger of convicting with statistics

By Tom Chivers

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”.

More from this author

The truth about sexsomnia

By Adam King

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.

More from this author

Do Just Stop Oil deserve to be in prison?

By Adam King

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.

Suggested reading

The danger of convicting with statistics

By Tom Chivers

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”.

More from this author

The truth about sexsomnia

By Adam King

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.

Trump, of course, is no angel. In 2020, he attempted to suborn vice-president Mike Pence into delaying the congressional ratification of the election results, and pressured Georgia Secretary of State Brad Raffensperger, a fellow Republican, into finding enough votes to change the electoral college outcome in his favour in Georgia. In seven other states, Trump’s henchmen also plotted to use fake electors to swing the results. To their credit, Pence, Raffensperger  and other senior Republicans stood up to Trump’s bullying. The rule of law in the United States was put to the test by Donald Trump — and it passed the test.

But now, anti-Trump Democrats have put the rule of law in America to the test again — and this time it has been bent to the point of breaking. In February, a Manhattan jury found Trump guilty of civil fraud in a case involving alleged overstatements of real estate values. And yesterday, following the prosecution of Democratic District Attorney Alvin Bragg, another Manhattan jury found Trump guilty of alleged violations in a case involving the reporting of hush money payments to the porn star Stormy Daniels. It was the first time a sitting or former US president has been convicted of a crime. It was also the first time that the allies of a president of one party have successfully weaponised the American judicial system in an attempt to destroy the presidential candidate of another.

In both of these cases, the partisan motives of the Democratic prosecutors and judges were evident. Campaigning as a Democrat for the office of Attorney General in New York State in 2018, Letitia James promised that she would selectively prosecute Trump, and find some excuse, any excuse, to do so: “I will never be afraid to challenge this illegitimate president,” she said. “I will be shining a bright light into every dark corner of his real estate dealings and every dealing.” The civil fraud case brought against Trump by James was presided over by Judge Arthur Engoron, an elected judge and a Democrat who was elected to the First Judicial District of New York in 2015 without any Republican opponent, so rare are Republicans in New York.

The partisanship of the Democratic officials in the hush-money case has been just as blatant. Charges like those brought against Trump in the hush money case were rejected as too weak by Cyrus Vance, the previous Manhattan district Attorney, and they were also rejected as too flimsy by Vance’s successor, Manhattan’s current DA, Alvin Bragg. Bragg only changed his mind and brought charges against Trump after two things happened. The first was the publication of a book — People vs. Donald Trump: An Inside Account — by Mark Pomerantz, a member of Bragg’s team who resigned in protest in 2022, claiming that Bragg was not doing enough to prosecute Trump. The second was the fact that, by 2023, it was becoming clear that Trump would be the Republican nominee for the presidency.

In the hush money case, Bragg turned what would ordinarily be a minor misdemeanour involving falsifying records into a felony, by claiming that it was somehow part of a nefarious scheme to interfere in the 2016 election. Yet even eminent legal experts find it hard to explain exactly why Trump was charged: last year, even the Left-wing website Vox described the case’s “legal theory” as “dubious”.

In these two New York cases — and a third case in January, in which Trump was fined an exorbitant $83 million for allegedly defaming E. Jean Carroll after another jury in Democratic Manhattan had found him guilty of sexual abuse, but not rape — the legal theories may have been questionable, but the motivations of the prosecution were obvious. It is difficult not to believe that the purpose of the extraordinarily high fines in the civil fraud case and the defamation case has been to cripple Trump’s presidential campaign against Biden. And the manifest purpose of the conversion of a minor misdemeanour into a felony seems just as clear — to allow Biden and other Democrats to brand Trump as a “convicted felon” between now and the November election, and, if possible, to remove Trump from the campaign trail by jailing him.

Even more disturbing than these kangaroo court trials in one-party Democratic New York is the Espionage Act case against Trump, currently being prosecuted in Florida by Special Counsel Jack Smith. In 2016, all Democratic justices voted with the Republicans on the Supreme Court to overturn Smith’s earlier prosecution of Republican governor Robert McDonnell in a corruption case involving gifts; the unanimous court warned of “the broader legal implications of the Government’s boundless interpretation of the federal bribery statute”.  In spite of — or perhaps because of — his overzealousness as a prosecutor, Smith was appointed by Biden’s Attorney General Merrick Garland, who just happened to have been blocked from a seat on the Supreme Court by the Republican Senate majority in 2016 after then-president Obama nominated him. A minor dispute over the possession of classified documents between ex-president Trump and the bureaucrats of the National Archives and Records Administration (NARA) gave Garland a chance to exact personal revenge. In August 2022, Garland authorised an unprecedented raid by FBI agents who, in Trump’s absence, ransacked the Florida home of the ex-president.

Like Trump, Joe Biden kept boxes of classified documents in his home following his term as Barack Obama’s vice-president. And like Trump, Biden was investigated by a special counsel appointed by Merrick Garland, Robert Hur. But Hur refused to press charges under the Espionage Act against Biden on the grounds that he is “an elderly man with a poor memory”. In stark and disturbing contrast, Smith issued a 37-count indictment against Trump, with most of the charges being based on the Espionage Act of 1917.

More from this author

The Donald Trump Monster Movie

By Michael Lind

From the very beginning, the Espionage Act — a vague, sinister law passed by Congress in a fit of hysteria during the First World War — has been abused by presidents against opposition politicians and journalists. President Woodrow Wilson’s Democratic administration used it to give his Socialist presidential rival, Eugene Debs, a 10-year prison term in 1919. In the same year, Victor Berger, a Socialist member of the House of Representatives, was also convicted under the legislation. In spite of winning an election, Berger was denied his seat in Congress and disqualified from public office under Section 3 of the Fourteenth Amendment, an irrelevant clause designed to prevent ex-Confederate insurrectionists from regaining power after the Civil War. Ironically, this is the same archaic provision that was weaponised recently by Democratic officials in Colorado, Maine and Illinois, who sought to disqualify Trump from appearing on Republican primary ballots in those states, before a unanimous Supreme Court in 2024 ruled against such efforts.

Having run for President in 1920 from behind bars, Eugene Debs was pardoned by Republican president Warren G. Harding in 1921, while Berger’s conviction was also overturned in the same year. In a similar vein, we can hope that enlightened state or federal courts will overturn the unjust convictions of Trump. But whether or not that happens, the damage to America’s democracy has largely been done.

Suggested reading

The ghost who haunts the MAGA revolt

By Geoff Shullenberger

In the short run, the corruption of the American legal system by Democrats out to get Trump has  shattered the reputation of New York state as a safe place to live and do business. Yet far worse is the damage to America’s global reputation. Thanks to these Soviet-style show trials, the US can no longer plausibly claim to be a global example of the nonpartisan rule of law and constitutional government. That reputation was already damaged by Trump’s clumsy attempt to overturn the results of the 2020 election. Today, however, thanks to his enemies’ willingness to turn the courts into tools of election interference, that perception that the US is now the world’s largest banana republic has been cemented.

For in the future, by weaponising state law to try to destroy federal candidates and officeholders of the rival party, Democrats have opened a Pandora’s box. It is probably only a matter of time before Republican attorney generals or former Democratic politicians on their own trumped-up charges. And why not? The use of lawfare against Trump has put a target on the back of Democratic politicians. Already some Republicans are calling for prosecutions of James and Bragg under an obscure federal statute against electoral interference. After all, such prosecutions, ruinous as they would be, are more plausible than the cases that those prosecutors have brought against Trump.

In Robert Bolt’s play A Man For All Seasons, Sir Thomas More responds to William Roper’s statement that he would “cut down every law in England” to go after the Devil: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?” The Democrats are about to learn a similar lesson: that even the Devil deserves the benefit of the law.

The past year has been particularly rough for the once-robust but now-obese and physically frail Thomas, beset by investigations into financial improprieties and heightened scrutiny over gifts and favours from wealthy benefactors. The oldest member of the Court at 74, he doesn’t seem to be long for the bench. And when he finally departs, not only will it mark the exit of the Court’s most polarising — and, perhaps surprisingly, most relatable and down-to-earth — figure, but could also alter the trajectory of American jurisprudence.

Thomas’s journey to the Supreme Court bench was, as lawyers might say, sui generis. Raised in poverty in Pinpoint, Georgia, his early life was framed by hardship and resilience. He was reared by his grandfather, Myers Anderson, a self-made man who built his own home and instilled in Thomas a rigorous work ethic and staunch moral code that the young man has, at times, struggled to follow.

After entering a seminary with the intention of becoming a priest, Thomas’s path dramatically shifted: he swiftly developed a pornography addiction so profound he wallpapered his apartment with nude pin-ups. To accommodate his less religious tendencies, he moved to the College of the Holy Cross, a liberal arts school in Massachusetts, where he embraced and then critically questioned the radical ideologies prevalent during the Seventies. His shift to conservative thought crystallised during his time at Yale Law School, where he began to question the efficacy and morality of affirmative action and other liberal policies he felt patronised rather than empowered African Americans.

Though one of America’s few black conservative intellectuals, Thomas’s ascent to the Supreme Court was anything but smooth. Nominated by President George H.W. Bush in 1991, his confirmation hearings — conducted in a rushed fashion by then-Senate Judiciary Committee Chairman Joe Biden — were nearly derailed by accusations of sexual harassment by Anita Hill, a former colleague at the Department of Education and the Equal Employment Opportunity Commission. They soon became a national spectacle that polarised public opinion and highlighted deep societal rifts around race, gender and power.

Largely because Biden closed the hearings before more witnesses could come forward, Thomas was confirmed by an exceedingly close Senate vote, 52-48. However, the scars of the process left a lasting imprint on his tenure and public persona: rarely speaking during oral arguments in the decades thereafter, Thomas adopted a jurisprudential approach that favoured colourful written opinions, where his advocacy for an unorthodox conservative interpretation of the Constitution could be fully articulated without immediate rebuttal.

Crudely speaking, Thomas could be considered an “extreme originalist”, often seeing cases through a lens that emphasises the Declaration of Independence and its revolutionary principles (instead of the later Constitution, which actually established the government). Along the way, he has freely taken peculiar positions — such as his opinion in Virginia v. Black (2003) that cross-burning constitutes racially intimidating conduct rather than mere speech, and should be unequivocally banned — aligning him unexpectedly with more liberal views on this issue.

Suggested reading

PEN America has surrendered over Israel

By Lionel Shriver

But these were rare occasions. In United States v. Lopez (1995), by contrast, where the Court evaluated the constitutionality of the federal Gun-Free School Zones Act — which banned the possession of firearms in school zones — Thomas concurred with the majority that this act exceeded Congress’s power under the Commerce Clause. He argued that regulating guns in schools was a fundamentally local matter that had insufficient impact on interstate commerce to justify federal oversight. However, in doing so, he potentially provided the grounds to invalidate the Civil Rights Act of 1964 and a host of other landmark federal laws enacted under the Commerce Clause that helped end state-based segregation in the South.

A decade later, in another significant case, Kelo v. City of New London (2005), Thomas dissented from the Court’s decision, in which the combined liberal-conservative majority ruled that the city could legally seize private property without the owner’s consent — in this case, someone’s actual house — and sell it to private developers as part of an economic development plan. Thomas criticised this decision, arguing that it strayed far from the founders’ intent that “eminent domain” be used only for direct public uses, such as the construction of roads or bridges, not to coercively transfer property from one private owner to another under the guise of economic development. His dissent underscored his deep scepticism of expansive government powers. “Something has gone seriously awry with this Court’s interpretation of the Constitution,” he wrote.

As well as presenting himself as an advocate of a more restrained interpretation of federal authority, Thomas is the most relatable justice in another critical respect: he was born poor and always sought material comfort. Over the past year, ProPublica has highlighted multiple embarrassing instances where Thomas received gifts that included international vacations on private jets and luxury yacht trips, financed by billionaire donors who, depending on one’s interpretation, were either sympathetic friends or cynically buying access.

Suggested reading

Why London is beating America's cities

By Joel Kotkin

Early in the 2000s, for example, Thomas found himself hundreds of thousands of dollars in debt, his financial strain coming to a head after he borrowed $267,000 from a friend to buy a high-end RV. Eventually, mounting political pressure sparked discussions about his potential resignation from the Supreme Court; in response, Justice Thomas advocated, albeit unsuccessfully, for the lifting of restrictions on paid speeches by justices. This change was necessary, he argued, to alleviate the financial challenges faced by public servants like him, who he felt were paid significantly less than they could earn in the private sector for comparable roles. In reality, his perspective has indeed been valuable, but at what cost?

These late-life controversies all but ensure a miserable end for Thomas. As health challenges and ethical controversies cloud the twilight of his four-decade career, Thomas likely won’t leave with his held high, regardless of whether he retires due to infirmity or is forced to step aside. Nevertheless, his story — tragic though it might be — highlights the importance of genuine diversity in government, in thought and approach as well as background. For while his legacy will be a subject of intense debate and reflection, he has already ensured his place in the annals of American legal history as a common-man justice so silent on the bench that he almost wasn’t there — at least in the conventional sense, but profoundly present in every other. He will be replaced by another elite in disposition and background. And we can rest assured that we will never see his like again.

A century later, the question of whether we the people have a right to know about justice remains unresolved. Despite our obsession with “transparency”, it is becoming increasingly hard to know what is going on inside Britain’s courts.

“Atrocious”, was how the chair of the Bar Council described our justice system earlier this week, in an interview with the Financial Times. But just how “atrocious” is impossible to glean. Over the past decade, court reporting has withered as funding dries up. And no company embodies this more than Court News UK, the last court reporting agency to operate from the Old Bailey, where I’ve spent the past three months following their reporters for a podcast documentary.

“There are huge black spots now,” says Guy Toyn, co-owner of Court News UK. “London is still fairly well covered. But go up to cities as big as Birmingham, or Nottingham, and there just isn’t anyone there to see what’s going on. Let alone regional courts.”

For the last 25 years, Court News UK has been run by two reporters, Toyn and Scott Wilford. In the early days, they worked from a “windowless basement” bursting with at least three other press agencies, several photographic agencies, and dedicated court reporters from the likes of The Telegraph, The Times and The Sun. “It felt like a Fleet Street annexe,” says Wilford. They wrote up reports, then sold them to national and local papers. “At one point we had 10 reporters and two photographers. You could literally get an order from anywhere — I think there’s a newspaper up in the Orkneys that was one of our clients. They all had budgets. All these local papers around London had budgets. So you’d have a running list of seven or eight murder trials and be thinking: God, how am I going to service all this…”

What happened next is a familiar story. First the internet, then social media, blew up their model. By the late 2000s, national papers began to cut costs, and local ones mostly went bust, folded into bigger consortiums that stripped out most of the on-the-ground reporting and stuffed what remained with clickbait. Court News’s rivals all went bankrupt. The staff of 12 at Court News shrunk to four. Increasingly, the recruits are smart first-jobbers, who can make do with the meagre pay.

Suggested reading

Jonathan Sumption on Gaza, lockdown and the ECHR

By Jonathan Sumption

The world, in other words, moved on. Much of the journalism that has passed into history isn’t worth sentimentalising, any more than the passing of the lead presses that used to rumble the pavements of Fleet Street. But court reporting is not like most other journalism. It is an almost artisanal trade that relies upon reporters trained in shorthand and familiar with contempt and libel laws, who sit at the back of cases for hours while arcane points of law are expounded, spooling out pages of notes. Whereas many media businesses were supplanted by slicker models enabled by the internet, in court reporting there is simply no alternative to being there. The legal fraternity and the Ministry of Justice (MoJ) are not going to provide the information, let alone parse it.

This is because the legal world is curiously insular. The courts tend to treat any spectators as an unfortunate nuisance. For the English and Welsh system, there is one rudimentary website that lists the following day’s court schedule by the names of the defendants. It gives no sense of the charges. And it is subject to change. In fact, it is common to turn up at the appointed place at the right time and be greeted by an empty room — the proceedings were probably moved, but no one bothered to tell the non-lawyers. For court reporters, the only way to receive a full list of the charges ahead of time is still to seek out the judge’s clerk, ask for them in person, and hope that the clerk is well-disposed.

Lawyers have little incentive to fill in the gaps. Even policemen — once happy to have a quiet word with the press about a particular case — are increasingly mute, tied down by the politics of their press offices. There is also no way of obtaining trial information after the fact. As the BBC recently acknowledged, it is impossible to request a court transcript in this country unless you have several thousand pounds to hand. As recently as 2011, stenographers sat on every bench. In a charmingly English way, they were effectively privateers — you could approach them directly, and purchase from them a copy of the official record. But a modernisation wave swept all that away: today, court proceedings are recorded, but the recordings are property of the MoJ. Because it is illegal for private citizens to possess audio of a trial, obtaining a transcript requires hiring a transcription service, which would have to type up weeks of proceedings, with the bill dumped at your door. One rape victim was quoted £7,500.

This matters, not only because of the problem of informational black spots across the land, but because right now court reporters should also be bringing us news on the overall decline of the justice system. On this, the Court News owners agree: in all their 30-odd years of experience, the system has never before been this slow or this useless. “When I started in the Nineties, judges were much scarier. Dickensian, even,” Wilford says. “But they got things done, and there was no messing around. All these murder cases would tend to open on a Monday morning. Now, the whole process seems to have slowed down, so nothing ever seems to start on a Monday. Excuses are made, and then you still find yourself waiting for cases to start on a Wednesday. I think the public would probably be staggered to see how slowly it moves. There always seems to be some kind of administrative blunder in the offing, or prisons don’t seem to produce defendants when they should. Always something.”

Suggested reading

Can the Secret Barrister tell the truth?

By Adam King

One afternoon, during the months I spent in their office, a Court News staffer came back fuming about the sentencing of a Tunisian illegal migrant who slashed his 19-year-old girlfriend’s throat. The trial concluded; he was found guilty. But arriving at the court, the reporter found that sentencing had been delayed for three months, and no one could work out why.

Wilford would often turn the air blue as fresh court dates rolled in, incensed by judges booking in hearings for 2026. In September 2023, I witnessed the sentencing of the accomplices of the crooked cop Frank Partridge, where an apologetic Judge Christopher Hehir gave all the guilty a sixth off their tariff — because their case had been pending since 2015.

Eddie Beaver, who Court News recruited straight from university 18 months ago, agrees that the system is broken. “If I can think of an example that perfectly encapsulates the current attitude of judges, it was when I saw an email that a member of court staff had received at the Old Bailey, and it said the Old Bailey is going to have a ‘new culture’. One where cases will be dealt with swiftly: there will be no dithering. With the caveat that: ‘We will begin to implement this new culture in three months’ time…’”

Many blame budget cuts for the collapse of the justice system. During the Coalition years, the low-priority Ministry of Justice was chopped by around 25% in real terms. “But people have always blamed funding,” Toyn points out. “Ever since I’ve been here, there’s never been enough money. The difference is this: a few years ago, if you had some sort of ridiculous delay, the judge would be extremely angry. I remember a judge — I think his name was Stokes. When the barrister used to come in and say, oh, you know, this isn’t ready, he’d say, exasperated, ‘Caaaaaan we get onnnnn…’ And these barristers would be absolutely terrified, quaking in their boots. Nowadays, it’s all very laid back.”

And with 11 justice secretaries in 14 years, it’s not a problem the Government seems interested in resolving. “It’s just not sexy, is it?” says Beaver. “No one ever got elected on a promise to make the courts work faster.” But is that any excuse? After all, justice should be seen to be done — even if it’s not being done very well.

New Labour has long been a convenient scapegoat for Conservatives of a particular persuasion. But this time, the accusations may have merit. The backlash that followed last year’s Supreme Court ruling — which found the Rwanda policy to be unlawful — is a direct product of New Labour and Lord Derry Irvine’s rights-based judicial reforms. Those reforms, firstly, ensured all policy and legislation-making centred around a culture of rights-compatibility. This was to be given priority over debates regarding the merits and necessity of an elected government’s policy preferences and assessment of the public interest. Secondly, it encouraged the perception of the judiciary as being unchallengeable and hierarchically superior to other branches of the state. The result, as we’re now seeing, is the constraint of an elected government that commands a majority in Parliament.

For New Labour, the aim was to ensure that domestic policy and legislation was subject to, and heavily shaped by, the European Convention (ECHR) rights found in the Human Rights Act 1998 (HRA), regardless of whether the domestic public interest or common good, according to a democratically elected majority government, required otherwise. As such, governments of all stripes would be forced into designing and arguing for policy that sits within the HRA’s framework and adhered to decisions made by the European Court of Human Rights (ECtHR). Other pertinent questions about the need, validity, strengths, weaknesses and democratic support for these proposed measures would become secondary.

Lord Irvine was clear-eyed about the types of rights-based reforms he wanted to introduce. He unequivocally claimed that New Labour’s HRA sought to mould not only the content of law in a range of areas, but also the law-making process. As such, it was New Labour’s specific intention to ensure government policy and legislation was framed around individual rights. To this end, the requirement for ministers to make statements of compatibility when introducing a Bill into Parliament was vital; the “responsible minister” would have to justify their decision in the “full glare of parliamentary and public opinion”. Strikingly, “Sovereignty”, Lord Irvine wrote, “will in future have to be exercised within an environment highly sensitive to fundamental rights”.

Moreover, because the HRA ensures executive and public bodies carry out their work under the umbrella of rights compatibility, Lord Irvine claimed such bodies would be subject to “considerably more rigorous scrutiny” than before — and he conceded the “special arena of human rights” would entail high degrees of judicial intervention.

While Lord Irvine, and New Labour, maintained that parliamentary sovereignty would be preserved, and Parliament could continue to legislate as it wished, the intention was to reposition the terrain for legislating towards matters of compatibility and away from concerns about public interest. If Parliament sought to legislate against the HRA grain, the question would not be of sovereignty or public interest but of rights-compatibility. Further, the duty on domestic courts to read legislation in a HRA-compatible way has led to a wide range of British government policies being reduced to such debates. The results, as we have seen, include well-documented cases of IRA members claiming to suffer a breach of the right to life, and the blocked deportation of suspected terrorists. Even government policies concerning public ownership and late-night flights from London Heathrow airport have been subject to questions of compatibility.

Suggested reading

Jonathan Sumption on Gaza, lockdown and the ECHR

By Freddie Sayers

Of course, while these types of cases can and often have been decided in favour of the Government, the reduction of substantive policy proposals to discussions of ECHR-compatibility, and the resulting delays to their implementation, are debilitating for domestic legislative or public interest programmes. Adhering to basic minimums of rights is important. But to confine the legislative and policy-making process so that it only or disproportionately considers HRA compatibility distorts and significantly harms domestic deliberations about proposed measures. Such a bias also reduces the role of the unique customs and traditions of the country in informing policy programmes, and relegates the view of legitimate domestic actors, such as trade unions, who may have a role in influencing policy or legislation. Designing and implementing domestic measures requires some degree of political and legislative freedom, relatively free from compatibility measures that are premised on decisions made by the supranational voices of the ECtHR.

To make matters even more tiresome for any current or future government, New Labour’s HRA created the perception that the judiciary, and their judgments, were hierarchically superior to the elected majority government in Parliament. In other words, a false impression was created that framed Parliament, and the majority government within, as being unable to question or legislate against judicial decisions. Historically, the British constitution is no stranger to judicial checks on potential overreaches of power. But it is not through enforced judgments that Parliament complies with judicial decisions. Instead, it has always been through sovereign self-regulation, conventions of restraint and respect, and, where this fails, through parliamentary scrutiny and, ultimately, electoral assessment. Despite this, New Labour encouraged an Americanised feeling of judicial supremacy by, first, reframing the role of judges and, secondly, allowing them to enter more substantive discussions about the merits of any given policy or legislative measure.

Lord Irvine confidently asserted that the HRA’s reforms ushered in a new framework and prominence for judicial authority. He understood that the British system was not like that of the United States, with a written constitution, but he believed that the judiciary should be tasked with protecting both substantive rights and the content of those rights. Here, he argued that the success of the US constitution in achieving this was a result of the power given to the courts. Strikingly, in comments that would petrify Lord Chancellors of the Labour Party’s past, Lord Irvine also argued that characteristics of the US Supreme Court would underpin the new rights-protection model in the UK. By moving away from the Diceyean common law model, “the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way”. The HRA, he argued, gave the courts the “constitutional warrant” needed to uphold rights.

Suggested reading

How the judges took back control

By Thomas Fazi

Then, after recasting the British judiciary in the same light as the US Supreme Court, Lord Irvine explained that the introduction of New Labour’s rights-based reforms would kickstart a new process of justice based on the promotion of positive rights. As such, he believed the mechanics of the HRA changed the constitution to one in which citizens asserted a positive entitlement that was expressed in clear and principled terms. This meant that British judges, for the first time, were able to make their own distinctive contribution to the protection of rights. The judiciary would now be armed with a “catalogue of new rights” and “new tools” to uphold freedom. Despite New Labour arguing these reforms maintained the position of Parliament as the ultimate arbiter, Lord Irvine specifically claimed there would be great pressure to concede ground to any decision that the court has made. This would especially be the case if a “section 4(2) declaration of incompatibility” — in which legislative provisions went against the grain and values of the HRA — was made. For those unsure what this might entail, he explained:

“The issue of a declaration of incompatibility is very likely to prompt the amendment of defective legislation. Consequently, while British courts will not possess the power to strike down legislation which is incompatible with human rights, their power to issue a declaration of incompatibility is substantial, given that, in pragmatic terms, it very probably will lead to the amendment of defective legislation. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review.”

Commentators broadly agree on the potency of such a declaration, despite Parliament, in a technical sense, having the ability to ignore it. Indeed, the political pressure created by a “Supreme” Court ruling against a government tends to be so enormous that, in practical terms, the court, not Parliament or the government within, is viewed as supreme. In effect, such a measure is tantamount to ordering the Government and Parliament itself to halt or change direction — something which, prior to 1998, was constitutionally improper.

Moreover, when ensuring the legislation or policy in question was compatible with the HRA, Lord Irvine claimed judges would also be able to conduct a more substantive review of human rights and policy. He argued that the domestic courts would be able to examine whether it was necessary to limit a right, and whether a proposed limitation was appropriate. Therefore a moral approach to judicial decision-making was created. The courts would now have to be satisfied that any interference with a protected right was justified in the public interest of a free democratic society. The result, Lord Irvine explained, would be judicial decisions based on the morality of government policy and legislation — not simply its compliance with the bare letter of the law.

Suggested reading

Why England hates incompetent tyrants

By Mary Harrington

Finally, although seemingly cosmetic, New Labour’s decision to disband the Appellate Committee of the House of Lords and create a new, relocated Supreme Court — via the Constitutional Reform Act 2005 — lent further weight to its aim of fostering feelings of judicial supremacy. Instead of adhering to the unique commixture of powers in the British constitution, the Department of Constitutional Affairs explained the intention was to redraw the relationship between the judiciary and other branches of the state — in addition to enhancing judicial independence. Overall, then, an image starts to emerge of New Labour and Lord Irvine’s responsibility for those in Britain who have spent the past two decades appealing to the paramountcy of the HRA and finality of judicial decisions. This can be clearly seen in the responses to the Rwanda policy from civil society, commentators in the media, and politicians.

Following the Supreme Court judgment, for example, third-sector organisations unequivocally called for the Government to abandon and draw a line under the measure. Others have also criticised the Government’s response  for “disapplying” aspects of the HRA and “disabling the courts”, while reporters have framed the Government’s response as one which “brushes the historic role of our country’s courts aside”. Similarly, among politicians, legislating against the Supreme Court has been described as “an affront to democracy”, with MPs expressing concern about “the possibility that, by effectively reversing through statute a Supreme Court judgment on the facts, the Bill could undermine the constitutional role of the judiciary”.

Of course, these responses do not form a complete picture — but they do provide a snapshot of the enthusiasm for judicial supremacy fostered by New Labour. The result, as the Rwanda policy has demonstrated, is a rights-based framework that can significantly obstruct an elected government’s policy or legislative agenda. While New Labour and Lord Irvine may feel like history, we are still stuck in the stranglehold of their reforms.

***

A version of this article was published on the UK Constitution Law Association website.

For years, critics of the ECHR have argued that the Convention and its handmaiden, the European Court of Human Rights, represent an unacceptable infringement on national sovereignty. Supporters of the ECHR, on the other hand, claim that it has been an important driver of social progress, helping to redress blind spots within the UK’s legal system.

In a way, both sides are correct. Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain. Yet it is also true that the ECHR raises important issues over sovereignty and democratic legitimacy. Should a supranational court have the right to decide whether a certain bill, approved by an elected parliament, passes the ethical and moral litmus test?

It is, though, a mistake to treat the ECHR in isolation, as its critics do. For the same question could be asked of any national court, including the Supreme Court itself. The influence of the ECHR is only one part of a much bigger story: the wider judicialisation of our political and democratic systems.

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries, transforming national and supranational courts into full-blooded political and decision-making bodies — and giving rise to a new type of political regime altogether: what some have called juristocracy. As legal scholar Ran Hirschl wrote as far back as 2004, from matters of national security to macroeconomics, “courts have become crucial for dealing with the most fundamental questions a democratic polity can contemplate”. The view that “nothing falls beyond the purview of judicial review”, as Aharon Barak, the former Chief Justice of the Supreme Court of Israel, said, has become widely accepted.

Suggested reading

The case for leaving the ECHR

By Richard Ekins

As a result, it has become standard practice for core political decisions relating to the very essence of public life — such as immigration policy — to be taken by courts and judges. Questions that ought to be resolved through public deliberation in the political sphere are increasingly being settled behind closed doors by a self-selecting judiciary elite. Power has been delegated away from elected bodies and towards technocratic institutions — not just courts but also quasi-autonomous administrative bodies within the state, as well as supranational political-economic institutions such as the European Union. This process of judicialisation has disrupted the equilibrium between the various branches of government, and the fundamental principle of the separation of powers, transforming judiciaries into de facto legislators, at the expense of democratic deliberation.

In this sense, critics of the ECHR are right to claim it usurps the functions of democratic institutions, just as the EU does. As the former Supreme Court judge Jonathan Sumption recently made clear: “The [European Court of Human Rights] is now much more than a judicial body. It is a great factory for making law, which has become a legislative and political authority for the whole of Europe… It is political because many of the issues which it decides are matters of political judgement on which states can legitimately differ.”

But the Convention is only one facet of a much bigger problem: the juristocratic regime. And this is more than just a scholarly issue — it is a matter of class and power.

The birth of today’s juristocracy dates back to the late 19th century, when the gradual establishment of universal suffrage led to growing anxiety among ruling proprietarian elites, including most liberals including Mill, about the entry of the lower classes into government. The fear was that the extension of the franchise would disrupt social stability and constitutional principles — and, more precisely, that the working classes would use their new-found political rights to challenge the dominant economic order.

Most governments responded to this threat by effectively restraining popular participation through a mixture of parliamentary sovereignty, rule of law and formal or informal constitutional conventions. In England, this came to be known as the Westminster system, a regime premised on the idea that Parliament was the only body with the authority to make laws, thus implying the subordination of the judiciary to the legislative.

More from this author

Why the West's elites invented a permacrisis

By Thomas Fazi

This form of political system became increasingly prevalent in Europe in the years after the First World War — and, in most cases, the power of the court to influence the legislative and political process was fairly limited. Indeed, as of 1942, only Norway had a constitutional court with the power to throw out laws adopted by the national legislature. Throughout the Forties and Fifties, however, several countries — including Germany, Italy, France and Austria — adopted constitutions that instituted courts with the power of judicial review: the power to examine, and eventually overturn, the decisions of the legislative and executive arms of government, if deemed in breach of the constitution.

This gave rise to the model of “constrained democracy” that was later emulated across most of Europe: one which possessed all the formal elements of democracy but where the ability of the masses to influence policy-making was subject to new sets of constraints. Though these constitutional courts were officially created as “guardians of the constitution”, they were in fact just as much guardians of the emerging US-led international order. Indeed, the early post-war years also saw the emergence of courts that were international or supranational in their own right, in Europe in particular, most notably the European Court of Justice and the European Court of Human Rights.

Westminster-style polities, such as the UK, were largely immune to this trend. But in the Seventies, the push towards judicialisation underwent a massive acceleration, including in the Anglosphere. Faced with growing pressure from an increasingly militant and politicised body politic, political elites resorted to various forms of depoliticisation — the removal of political decisions from the realm of popular-democratic contestation — in order to escape such pressures.

Judicialisation was one of the key tools — by either relying on the courts to challenge existing aspects of the social order that would have been hard to change through the normal channels of democracy, as Thatcher did, or by outright transferring power from majoritarian decision-making bodies, such as parliaments, to courts at the domestic and supranational level.

As Hirschl explained, even though this transfer of power might appear to run counter to the interests of political elites, in fact it served their interests very well. It allowed them to “scapegoat” the courts for policies they themselves wanted, safe in the knowledge that high judges tend to reflect the elite consensus on major cultural and political issues. “Deference to the judiciary, in other words, is derivative of political, not judicial, factors,” he wrote.

Suggested reading

Jonathan Sumption on Gaza, lockdown and the ECHR

By Freddie Sayers

For the UK, this journey largely accelerated with its entry into the EU in 1972, which over time transformed EU law into something akin to a higher law. The second big push towards judicialisation came in the late Nineties and early 2000s under New Labour, with the creation of the Human Rights Act and then the Constitutional Reform Act of 2005, which paved the way to the creation of the Supreme Court in 2009.

Yet for Britain’s political elites, judicialisation still carried a risk — namely, that the courts would start producing judgments that no longer reflected the ideological preferences of those who handed authority over to the judiciary in the first place. Hence, the Conservative Party finds itself unable to enforce its Rwanda policy.

So, when leading Conservatives claim that the ECHR represents an infringement on democracy and parliamentary sovereignty, and that leaving the ECHR is necessary to complete the “Brexit project”, they are not wrong. The problem, rather, is that these arguments ring hollow.

After their victory in the EU referendum, many hoped that Britain’s democratic rejuvenation was just beginning; instead, the Conservatives have gone out of their way to avoid democratic scrutiny. They have a Prime Minister who rules without a democratic mandate, and a party machine which seems more interested in internal squabbles than fulfilling its electoral promises.

Should we be surprised, then, that a majority of people, according to a recent poll, don’t want to leave the ECHR? Perhaps they realise that, for withdrawal to make sense, it needs to be part of a radical project of re-democratisation. But that would require the existence of a political class that believes in democracy. Even if the Tories somehow manage to conjure up a way to bypass the Rwanda ruling, that uninspiring reality is unlikely to change.

This week, he joined me at the UnHerd Club to discuss everything from our evolving attitudes to war and Joan of Arc, to Covid, the ECHR and Roe v. Wade. Below is an edited transcript.

Freddie Sayers: Lord Sumption, you’ve kindly agreed that we are on “ask me anything” rules. Our ambition is to move between your recently completed history of the Hundred Years War and contemporary controversies that a historical perspective might shed light on. Let’s see how that goes! 

To begin with, it’s remarkable how much the historical period you’ve devoted 43 years of your life to is defined by war.

JS: War is crucial. Until the beginning of the 20th century, the two principal collective activities of mankind were religion and war. The purpose of the state was to serve the second of those things, but usually the first as well. War is at the heart of the experience of societies. It is what created the state, in that war made it necessary for the state to find a way of organising the resources of a country. It’s something that, during the Hundred Years War, the English government initially did very much better than the French, which is why, although they were a smaller, less populated, less rich country, they won their battles initially. The tables were reversed later. But war is absolutely critical to an understanding of the creation of the state and of human societies. That doesn’t just apply to this country. It applies to pretty well every country.

Medieval societies had a completely different attitude towards conflict. We regard war today as an unwanted catastrophe that periodically breaks in on us against our wishes. They regarded war as the norm, the normal way of settling international disputes, and quite a few internal disputes. And so, people didn’t say: “This is terribly wasteful, we could be spending the money on new universities or the National Health Service.” It was not felt that the duty of the state extended to relieving poverty or to promoting human happiness. Therefore, there was nothing wrong with war, it was a perfectly reasonable thing to spend what money you had on. It’s an attitude that, today, it’s quite hard to work your way into.

FS: Although given the news of the past fortnight, it is clear that primal war over territory, between peoples that don’t have any hope of seeing eye to eye, is still a feature of today.

JS: It is as old as the hills. In the 14th century, the English adopted what I can only describe as terrorist tactics to try and batter the French government into submitting to their demands. They conducted huge raids in which they indiscriminately killed large numbers of people and burned whole villages. This is what we would call terrorism. It really wasn’t until the 18th century that war became a battle between organised armed forces. We’re now reverting to an earlier pattern in which at least one side in any war is a disorganised group of people. Hamas is a good example. They’re semi-organised, and their object is indiscriminate violence because they do not have the resources to confront whoever their enemy is with the same sort of weapons. If you are a semi-state, and the underdog, this is how you wage war. England was 100% of a state in the 14th century, and they still waged war that way.

FS: So you think what we saw on 7 October in Israel — the killing of infants, the kidnapping of elderly people: there would be no qualms about that in the 1400s?

JS: None at all. There were theoretical qualms about killing priests and pilgrims. But that was it. Everyone else was fair game. We have an image of the late Middle Ages as an age of chivalry. Actually, chivalry was a purely decorative concept, a form of aristocratic showing off. It had almost no implications for the conduct of war, except that it governed the rules about taking prisoners and ransoming them — taking prisoners was very profitable because you could sell them. So apart from that, chivalry was a decorative illusion. It was actually a very grubby and violent period. On the whole, I don’t believe that humanity changes very much. The technological possibilities which enabled them to achieve their objectives have changed quite radically, obviously. But their ambitions and moral sensibilities have not changed at all and we can see that all around us.

FS: Do you think we are regressing back to a more medieval mode of warfare?

JS: Organised wars, conflicts between disciplined armies — I’m certainly not suggesting we won’t see more of those. That would be tempting fate. But all the wars since the Second World War — possibly the Korean War is an exception — have involved loose associations of guerrillas and terrorists either facing other similar groups or facing organised armies like the Western armies in Iraq and Afghanistan.

FS: Much of your history is concerned with the formation of England and France as nations. Do you think that nations are receding from the prominence they have historically enjoyed?

JS: On the contrary, I think nations, after a period in which they were thought to be rather old hat, are coming back. I think that national self-interest is reasserting itself in quite a big way.

FS: Since we touched on the current conflict, it would be remiss not to ask what you think the legal situation should be here in the UK regarding Israel-Palestine protests. There has been a lot of discussion of whether slogans like “Palestine shall be free, from the river to the sea” should be deemed illegal as they are supporting a terrorist organisation or advocating the destruction of Israel. Where do you think the line should be?

JS: There’s been an awful lot of nonsense talked about this, some of it coming from surprising authorities like the Home Secretary. Hamas is a proscribed organisation. It’s illegal to support them. I don’t think that it’s illegal to support — lawfully, without violence — the cause which they support violently. I do not think it’s illegal to say that Palestine should be a distinct state. I don’t think it’s illegal to say that Palestinians have a legitimate grievance. (These are not necessarily my views, but they are views, which it’s perfectly legal to express.) The mere fact that most Palestinians live in an area, Gaza, which is controlled by Hamas, does not mean to say that everything that you say in favour of the Palestinians is necessarily to be treated as equivalent to supporting Hamas. So a great many of the slogans, the demonstrations, and the flags that we’ve seen in the streets are not illegal at all, at least not on that ground.

More from this author

The death of historical truth

By Jonathan Sumption

FS: Are you worried that normal freedom of expression is being imperilled?

JS: I don’t think so far it’s been imperilled. I think what we’ve seen so far is some rather silly and ill-considered statements from people who should know better. We’ve got to see how the situation develops. My impression, for what it’s worth, is that we are tending slightly to recede from the initial feeling that all good men and true must necessarily support Israel. I think that a realisation of the humanitarian consequences of the Israeli invasion of Gaza has caused quite a lot of people — not everybody, but a lot of people — to pause. And on the face of it, it looks as if an invasion of Gaza would have some of the indiscriminate qualities that people quite rightly objected to when practised by Hamas.

FS: I’m going to take us back to the late Middle Ages now. Joan of Arc is perhaps the standout character of your last volume. And it’s just the most extraordinary story and oddly quite a contemporary one.

JS: She is the most interesting phenomenon, I agree. The Middle Ages basically believed that women were unfit for any responsible job other than heads of state. You could be a queen, but you couldn’t be anything else. Joan of Arc clearly and spectacularly broke that convention. She was a 17-year-old peasant who reversed the course of the war in the space of a year. That was a very remarkable thing. She challenges objective history. No serious historian can really believe in miracles, however religious he may be (and I don’t). On the other hand, some of the things that she did are difficult to explain short of divine intervention.

So what is one to do if the probability points to something that you can’t possibly believe in? I think the answer is that, in war, there are risks and there is bluff. And people who take risks, and try bluffing, often get somewhere. It’s usually luck. It’s not an act that can be sustained for that long, but it wasn’t sustained for very long. Joan of Arc’s military career lasted less than a year. Napoleon said that, in war, three quarters of it is morale, and the rest of it is manpower and all the rest. And I think a lot of experienced soldiers, certainly a lot of historians, would agree with that.

FS: So a 17-year-old girl — you describe her as anorexic in your book, illiterate, who dresses in men’s clothes, somehow manages to get herself to the court of the Dauphin and become the mascot of the French within months. So, she was a sort of influencer?

JS: Yes. She transformed the morale of the French, and completely destroyed that of the English. And that was something that not only the French thought, but the English agreed with. The Duke of Bedford, who ruled the English occupied parts of France, in his post mortem on what had happened, said: this woman was a miracle worker. He didn’t think that she was inspired by God — the miracles were the work of the Devil — but that she had supernatural powers, and that they destroyed the English morale was something that he regarded as self-evident. The records that we have of the interrogation of English prisoners of war taken by the French around that time bear out exactly the same story.

FS: Is it ridiculous to make the comparison to someone like Greta Thunberg?

JS: Well, Greta Thunberg has this much in common with Joan of Arc: Joan of Arc was widely regarded by the professional soldiers as a damn nuisance. They kept their councils of war in the middle of the night when she was in bed, or when she was somewhere else. And I think there’s a lot of feelings of the same sort, among people who are actually serious climate change authorities, about Greta Thunberg. But Greta Thunberg was a demonstrator; Joan of Arc was a fairly active doer.

FS: Although she didn’t actually fight. 

JS: No, she didn’t actually fight. She was in the middle of the melée, and she had a sword and axes and things, but she never killed anybody. She told her judges that, and all the evidence bears it out. She was there essentially as a morale booster.

On the coronation march to Reims to crown Charles VII, all the towns opened their gates because she simply appeared in front of them and said: “Open your gates, in the name of God.” They had heard slightly exaggerated stories of her miracle-working in the Loire Valley and they were terrified. And that worked a dream until she came to the walls of Paris. They didn’t open the gates. Paris was the great capital of the English and the Dukes of Burgundy, and the population was onside and they fought back. She announced her mission, demanded that they open the gates, and said they would be sent to Hell by the God of justice if they didn’t. And the response from a quite lowly crossbowmen was, “Shall we now, you brassy trollop,” whereupon he loosed his crossbow and caused her quite serious injuries, which prevented her from taking any further part.

FS: The beginning of the end for Joan of Arc.

JS: It rather damaged her credibility!

Suggested reading

The shadow of Pax Romana

By Tom Holland

FS: One other event that took place in this huge period between the 1300s and the mid-1400s was, of course, the Black Death, the huge plague that ravaged both England and France. Do you think this history and your sense of proportion were part of your background thinking when our own pandemic took place in 2020? 

JS: My sense of history told me that there had been an awful lot of epidemics, which were at least as serious, usually more serious than Covid. And it seemed to me, therefore, that to overreact, to treat this as an occasion for closing down all social life, was, frankly, absurd. It was a serious enough illness. But it was not unprecedented. And humanity has survived without inflicting these appalling tortures on itself perfectly satisfactorily through much worse epidemics. The Black Death was one example. But there are very many others.

There is one similarity, which is worth noting. In the Black Death and during other epidemics of bubonic plague in the Late Middle Ages, people used to believe that they had suffered a terrible infliction sent to them by God. It was due to their sinfulness. So they organised processions around the walls of the towns in which they lived in which they flagellated themselves. And during the Covid inquiry, we flagellated ourselves quite unnecessarily.

In my view, they were more sensible approaches than lockdowns. But what the two incidents had in common was a feeling that if you didn’t modify the flesh, if you didn’t inflict some misfortune on yourselves, you were going to be a sucker for this disease. People did it without any kind of religious motivation. So that’s an important difference. But the desire to inflict damage on yourself in order to ward off what you believe to be an impending catastrophe is a fundamental feature of human psychology at most historical times.

FS: If we look at other dissenting figures of authority, I think you could almost observe a trend, that people who had a broader learning, a broader interest than purely one particular branch of one particular science, tended to take a view more similar to yours. Sunetra Gupta for example, the scientist from Oxford, is also a novelist. Do you think there’s something in that?

JS: I think the more experience that you have of life — and history is essentially a source of vicarious experience — the more sceptical you are likely to be about any magic bullet solution. What was remarkable about Covid was that in deciding upon lockdowns the Government didn’t even look at perfectly modern examples of reasons why you shouldn’t do this. It is absolutely clear that they never considered, and discouraged other people from considering, the downsides — economic, financial, educational, social, mental health issues. This was a classic example of an extreme magic bullet mentality: “We are going to lock people down, we do not care what the collateral consequences might be, because we’re only interested in one thing, which is reducing deaths from Covid. We don’t mind if deaths from dementia go up, if deaths from untreated or undiagnosed cancer go up.” It is the most narrow minded conceivable approach to any major policy issue. You don’t need to go back to the 14th century in order to see why.

FS: When you look back at the Covid period, now three years on, do you think you can now say with confidence that you were right and that lockdowns were a mistake?

JS: I felt I could say that with confidence at the time actually! I think that the proportion of people who think lockdowns were a good idea has diminished, but a majority still think that. I also think that I converted very few people. What I did do I suspect was cheer up a lot of people who already agreed with me.

Now, lots of people come up to me and say: “Thank you for what you said, during the lockdown.” And I got a huge postbag of 200 letters a week and I would think 90% of them were supportive. I’m not suggesting for a moment that this is a statistically representative sample of the British population. But the sorts of people who take the trouble to write your letter are people who want to say: more power to your elbow. And that’s obviously cheering — you feel you’re doing something useful, even if it’s not persuading people on the other side of the argument.

More from this author

Modern Europe was born on the battlefield

By Jonathan Sumption

FS: Do you look at society differently — with greater trepidation — or feel like the institutions of our liberal society are more fragile than you had thought they were? Has it changed your world view?

JS: Yes. I was surprised by the readiness of people to submit to this. I have always been fascinated and appalled in roughly equal measure by the political writings of Thomas Hobbes. Ever since I was a teenager, when I first read Leviathan. Everybody should read Hobbes, because he is the most persuasive master of the English language and of advocacy that I know. If you follow his syllogisms, one after the other you agree with them all, and you suddenly end up in a place you didn’t want to be. And you say, “Blimey, how did I get here?”

But the serious point about Hobbes is that he believed life was horrible, and that fear of its horrible qualities was what made people accept despotism. Hobbes believed in absolute government and he quite correctly noted that fear was what drove people to support absolute governments. Now, we have actually managed, since Hobbes was writing in the middle of the 17th century, to live our public lives on quite different principles. We’ve managed, without fear and without the systematic application of coercion, to achieve a moderately civilised system of political discourse and decision making. And that’s very remarkable. But what struck me about the Covid epidemic, was that quite suddenly, you found yourself reverting to a pattern which I thought we had abandoned for nearly 300 years. That was a dismaying experience.

And it was one reason why I took a reasonably public and prominent role in criticising it. And I actually believe in the principle that former judges should, on the whole, not engage in politically controversial things unless they have a strictly constitutional or legal nature. But it seems to me that everybody has a threshold beyond which the issue is so serious that you have to stand up and be counted. And I felt that this was a change in the collective mentality of not just this nation, but European nations and North American nations generally, which had really sinister implications for the future of liberal methods of government. And it seemed to me this was far more important than any conventional limitations on what former judges ought to say.

FS: Do you think we’re going to get it back, that liberal mood, or do you think it is broken? 

JS: I’m both an optimist and a pessimist on this. It depends on what your timeframe is.

FS: How about the next 50 years?

JS: At the moment, we are in a mood which progressively jettisons basic liberal positions, like the observance of Rules of Procedure for government, which are more important than the outcome of any particular issue. And you’ve got to have a devotion to the rules, which transcends your attachments to particular issues, so that you do not regard it as an outrage when you lose on some, as you inevitably will. I also think that the classic liberal position on free speech is seriously undermined. I would expect these trends to continue for a while, certainly beyond my lifetime, and possibly beyond yours, I don’t know.

What will happen is that the current trend which is common to both Left and Right, to favour more authoritarian ways of doing things, to favour the idea that society should only have one view on something, and it is a political responsibility to determine what that view is going to be — all that is going to get worse. And I think that the ultimate result will be an authoritarian style of government across Europe and North America. North America may well be the first place that one sees it in its ultimate culmination. I think that at that point, people will say: “We don’t like this very much.” And at that stage, you will see a reversion to a more considerate model of social existence. I can’t say how long that’s going to take, but it might be decades.

FS: One example that you’ve been in the news talking about recently — which might seem to go against what you’re saying, in that it’s about leaving behind a set of rules — is the European Court of Human Rights. To some people, that court would be a nice example of a liberal institution respecting rules beyond individual tribes and nations. And yet, you want the UK to leave it?

JS: Yes. I don’t think this is likely to happen, but it would be a good thing if it did. I am not against a rule-based system and I am not against human rights. I simply think that we need to decide what human rights we want and to what degree we want them. At the moment, the problem is not the Convention itself, which is a collection of principles, not a single one of which I would question in any way. What I oppose is the legislative process by which the Strasbourg court, the European Court of Human Rights, has emancipated itself from the only thing that the states party to the Convention ever agreed, which was the text of the Convention. I do not think that it is the function of judges to revise the laws to bring them up to date — that is a function of representative institutions, certainly in a democracy.

So I would favour withdrawing from the European Convention and substituting it for an identical text, but simply interpreting it responsibly in accordance with what it’s intended to mean, and not in accordance with a wider political agenda — which I’m afraid is the animating spirit currently of the Strasbourg Court. I had hoped before that the Strasbourg Court would learn from the occasions when, particularly in this country, we have jibed at what they’ve done. I had hoped that things would improve as a result of the Brighton declaration, and its statement in favour of what was called, rather pompously, “subsidiarity”. I no longer believe that the Strasbourg Court is capable of independent reform.

FS: So you don’t mind the rules, but you think they’ve been politicised or they’re being incorrectly applied?

JS: I think the point about rules is that they’re designed to bring some kind of order to human affairs. If you have a rule which depends on whatever a legislator in Strasbourg thinks it ought to be, the essential predictability which rules are designed to achieve is gone. I have no problem about the notion of a foreign tribunal deciding whether our observance of human rights is adequate provided that the tribunal in question follows the rules. What I object to is a situation in which they require everyone else to follow rules of their own devising, but recognise no rules governing their own decisions.

FS: Do you think we should be renegotiating or reconsidering the Geneva Convention on refugees as well?

JS: I don’t know. I certainly think that the Geneva Convention was made for a different world: a world in which travel across national borders was a lot more difficult, and a lot more expensive. Originally, asylum rules were designed for very prominent national leaders of rebellious movements such as Lajos Kossuth, the great Hungarian nationalist of the 19th century. Then, in the wake of the catastrophe involving millions of displaced persons at the end of the Second World War, there was a strictly temporary Refugee Convention designed to enable these people to be resettled. In 1951, that was changed so that it became a permanent institution, and not limited to the persons displaced by the Second World War.

I think the people who agreed to that at the time did not appreciate that, with the disappearance of the European colonial empires, a lot of the world would come into chaos; that people suffering persecution would become very numerous — millions and millions in many countries of the world; and that, simultaneously, the improvements and the easing of the actual logistical difficulties of travel over long distances would enable lots of them to make their way towards the remaining ordered parts of the world.

FS: It sounds like you think the Geneva Convention is no longer fit for purpose?

JS: It isn’t fit for purpose, but whether one should depart from it is a different question. I confess that I’ve not studied this as carefully as I have studied the problems associated with the European Convention on Human Rights. I think it’s obvious that the Refugee Convention was made for a world that no longer exists. I am much less certain about what we should do about that.

FS: We’re going to go back to the late Middle Ages one last time. The whole series of volumes is about Britain (or England) and France — and whether they were to become one country or not. There was a moment when it looked like the Lancaster kings would manage to unify the kingdoms. That obviously didn’t happen. We retreated and the Channel became our border. 

You have a house in France. You spend a lot of time there. You were against Brexit, even though you’re now in favour of leaving the Strasbourg Court. Do you feel like we are more separate from Europe than at any time since the Hundred Years’ War?

JS: Well, before the Hundred Years’ War, England was a European polity because it ruled a significant chunk of western France. It was never an island politically until the Hundred Years’ War: it became one as a result of the war. But Britain has always engaged with the Continent. William Pitt the Younger was one of a number of people who remarked that the frontier of England is actually on the Rhine. He wasn’t asserting a right to rule everything on the western side of the Rhine. He was saying: that is the boundary on which our security depends. It’s not the Channel. So there’s a mixture of insularity and pre-European integration with Europe. It’s part of the dualism around British foreign policy that has always existed.

One of the reasons why I think that Brexit was a mistake was that it is a repudiation of five centuries of intelligently conceived foreign policy in Britain. The main policy of successive governments in Britain, since the 16th century, has been to avoid a situation in which a single power dominated the whole of continental Europe. That is why we went to war with Louis XIV at the start of the 18th century, with Napoleon at the beginning of the 19th century, and with Germany twice in the course of the 20th century.

What we have done by withdrawing is, first of all, to remove from the European system the principal opponents of the federalisation of Europe. We were undoubtedly the leading objectors to this, and we had actually successfully resisted it for many years. In this way, we have contributed to what will over the next few years become the greater unification of Europe. And at the same time, we have abandoned any possible claim to influence what it does. So we have done something that, it seems to me, has negated decades, centuries of serious thoughts about the strategic position of the United Kingdom in Europe.

FS: Would you vote to rejoin?

The problem about rejoining is that we wouldn’t get the golden terms that were there when we left — and that is a really serious problem. What I think will probably happen is that we will, over the next generation or two, conclude a succession of agreements with the European Union that will bring us closer to it without actually being members. And I would applaud that personally. Eventually, we may well decide that we might as well join and recover our influence.

FS: This is the perfect time to take some questions

Question One: In your Reith lectures, you talk about how the judiciary has usurped the legislature throughout many Western countries — and you give the particular example of the United States, and the controversial Roe v. Wade Supreme Court ruling. If you could advise the six conservative Supreme Court justices, what would you advise them moving forward?

JS: I can’t imagine a situation in which I would end up advising them — or a situation in which they would pay attention to me if I did. But it would be quite difficult.

The rationale of Dobbs v. Jackson Women’s Health Organization — the case which overruled Roe v. Wade — was that there was no constitutional right to abortion, from which it necessarily follows that the right to legislate on this subject reverted to the individual states. That view has been in keeping with the conservative view on the Supreme Court for a long time — although it was until recently a minority view: that the federal government, and the federal legislature, have intruded too far on the autonomy of the states.

Suggested reading

John Gray: liberal civilisation is finished

By John Gray

FS: Do you think it’s a good thing that it’s gone back to the states?

JS: Yes, I do. I thought that Roe v. Wade was a bad decision because it took an intense moral issue on which a very large proportion of ordinary Americans had strong views of their own, and decided it in a way that marginalised and rendered irrelevant the views of the public. I think that was the main reason why in Europe, where regulated rights of abortion were introduced by legislation, the issue is pretty uncontroversial now. In every case, it was done by statutes. (The only country which doesn’t have a right of abortion tool now is Malta.) The result was that people, whatever their initial views, accepted it; they don’t in the United States because they were never consulted.

Although I think that Roe v. Wade was a very bad decision, I think that Dobbs was in a way an even worse one, because I actually believe that there ought to be a regulated right of abortion. But I do not believe that it is a fundamental right. I don’t believe that it is part of the United States Constitution or any other constitution that I know of. I think it’s a matter for legislative choice. And I think the sensible legislators will do what most European legislators have done.

I think the problem about Dobbs was that Roe v. Wade had survived for 50 years, and there was no respectable reason for departing from a judgement that had become part of the basic legal structure of life in the United States. The reasons given by the Dobbs court for overruling Roe v. Wade in spite of the precedence were to my mind wholly unconvincing. I do not agree with Justice Breyer’s justification of Roe v. Wade in principle, but I wholeheartedly agree with his view that — having decided Roe v. Wade the way that they did, and having in successive decisions of the Supreme Court reaffirmed it — they should not have disabled it.

Question Two: You said that the nation-state was coming back, and I wonder what your comment would be about the level of migration which we see in this country. The figure of net migration last year of about 600,000 was widely reported — do you think that will alter the legitimacy of the nation state?

JS: I don’t believe that the nation-state is inconsistent with very high levels of migration. I think there are other objections to very high levels of migration, but not that one. The classic example of the nation state in the modern world is the United States of America, which is entirely made up of ethnic and cultural minorities coming from elsewhere. It’s the great migration state.

An awful lot depends on the culture within the state, the ability of a society to absorb migrants, and to encourage them to adopt collective attitudes which are the same as those of the rest of the original population. I actually think that this country has been quite good at that — better, for example, than France, to name one obvious country, which has also suffered even higher levels of migration.

As to what can be done about it — the argument against high levels of migration is that it promotes insecurity, it strains resources, although migrants also create wealth as well as consuming it. But these are different arguments to the ones about the existence of the nation. What can one do about it, if one takes the view that migration is excessive? The answer is it’s a mixture of national and international measures. We have the misfortune to be an island. And it’s easier to get into an island than it is to a country with land borders. This sounds ironic, but the fact is, if you’ve got a land border, you can erect a physical barrier and keep people out who do not satisfy whichever test you choose to impose on new arrivals. If you are an island, you can’t erect a barrier in the middle of the sea. But actually, our own migration figures are not as large as those of Italy, France, Greece, Germany, or Sweden. So we are not we’re not in a unique position here.

FS: It’s notable also that the French are not being especially helpful in solving the boats situation in the Channel.

JS: One can understand that — they have a bigger migration problem than we do. And they are, no doubt, happy to see some of their migrants disappearing across the Channel.

Question Three: In the last 10 days or so we’ve heard a great deal about the law of armed conflict, and international humanitarian law, which seems to be a way of possibly stilling Israel’s hand. Both concepts grew out of the just war tradition, and I’m wondering, how recognised was that in the Hundred Years’ War and did it make any difference? And will international humanitarian law make any difference or is it really about the battle of the narrative?

JS: The notion of just war is a form of natural law. And it was much favoured by theologians and civil lawyers, the successors of the Roman law tradition. In the Middle Ages, it had virtually no practical impact on the way that wars were conducted. Current just war theories are very different because they’re essentially based on treaties, in particular the various Hague and Geneva Conventions, which control the way that we use force.

One of the rules, which has been in existence at least since 1908, is that you may not target civilians, and you may not conduct operations in a way that will inevitably produce casualties among civilians disproportionate to those among actual fighters. Now, these are quite difficult concepts to apply to a fighting force, which is not a disciplined army — of the sort that people had in mind in 1908 — but is a semi-organised group of, for want of a better word, thugs, like Hamas.

FS: Should we try, though?

JS: We should try. The difference is that more is expected of organised states like Israel, with disciplined armed forces recognising an orthodox hierarchy of command. So it seems to me to be perfectly clear that for the Israelis, to conduct the war on a basis that indiscriminately targets civilians is contrary to international law, and has been for quite a number of years. It’s also contrary to international law to forcibly displace people from their homes, to blockade them in the way that Israel has been doing certainly since 2007.

FS: So you believe Israel is breaking international law?

JS: I certainly believe that it has done and that what it threatens to do now would do.

More from this author

The death of historical truth

By Jonathan Sumption

Question Four: You mentioned the destruction of civil liberties that took place during the pandemic and what struck me especially was the abolition of negative liberty, and in particular, bodily sovereignty. Given the Hobbesian view that the security of the people is the supreme law, and given that power-hungry despots must certainly share that outlook or be aware of that, what’s to stop supranational opportunists, who may want a Leviathan, from seeking or even creating continuous insecurity and crises in order to impose their supreme law? Will we have solutions in search of problems?

JS: Well, the notion that Salus Populi Suprema Lex is actually due to Cicero and it is, to my mind, complete rubbish. The authorship of Cicero lends to it spurious respectability. But it’s actually a recipe for tyranny at a time of crisis. So I’ve never been impressed by that as a maxim of government. As to whether foreign powers or supranational authorities might promote disorder for the purpose of taking advantage, I don’t know any example where that is actually happening.

FS: I suppose maybe she was thinking about the World Health Organization, organisations like that, which might try to get the right to dictate pandemic policy in the future.

JS: That’s not creating disorder. The problem about that kind of thing is that it assumes that one size fits all. It seems to me that a completely uniform, internationally-regimented approach to dealing with, for example, a pandemic, would deprive us of the possibility of experimenting with a different approach. I think that one of the principal lessons of the pandemic was the success of Sweden in achieving a lower death toll than this country and a death toll broadly in line with the European average, without a lockdown. And it seems to me, therefore, that had we been deprived of that possibility by some kind of international arrangements, we would be much poorer. I’m in favour of a situation in which different pressures, different political situations, different constitutional positions, can produce a variety of solutions, because they are much more likely to ensure that one of them is right.

Question Five: You said previously that you think that in the near-future we probably will see a major shift towards authoritarianism across the West, and that the US might well be the first country to exhibit it. What concrete aspects, practically speaking, might take America, both politically and judicially, in that direction?

JS: I wasn’t necessarily thinking of judicial interventions. The United States has a very rigid Constitution. It has a fair-weather constitution. And the United States has had remarkably and unusually fair weather throughout its history. There have basically been only two periods of American history in which there have been serious economic difficulties. One was in the immediate aftermath of the Civil War, and the other was in the Thirties. So, America has experienced an upward trajectory, both in absolute terms, and relative to the rest of the world, for the greater part of its history.

The Great Destroyer of civil society is the disappointment of entrenched expectations. That was why most of Europe turned totalitarian between the wars. The Depression of the Thirties disappointed expectations of continuous upward movement which had become entrenched for a long time and had only briefly been interrupted by the First World War. I think that the problem that the United States has is that its rigid constitution, and in particular its legislative immobility is very ill-adapted to deal with a situation of long-term decline. I don’t think that the United States will decline in absolute terms. But I think it’s pretty clear that it will decline in its relative position in the world.

And I think that the implications of that for jobs that aren’t at the cutting-edge of technology are really very serious. And I don’t think that the Americans are likely to be very good at managing it. A much more flexible political constitution such as ours has managed to accommodate a significant relative decline since the Second World War rather successfully. And I am concerned that Trump and Trump’s doings and followers are not simply an incident related to this particularly extraordinary individual, but a symptom of a much broader malaise in the United States associated with capricious patterns of inequality, with the decline of traditional skills, and with the exportation of jobs, which is the inevitable result of the decline of traditional skills.

I am not optimistic about the future of the United States because I think that its current political travails are essentially part of a pattern that is dictated by the general situation of the country and its history, and not an unfortunate accident of the arrival of this particularly monstrous individual.

FS: Does that mean that you’re more optimistic about the prospects of the UK? Will our flexible constitution mean that we weather future declines better? 

JS: Yes, I think it will. But that doesn’t mean to say that we will avoid future decline. I think that the political consequences of decline will be much more serious in the United States than they are here. But decline is an uncomfortable experience, whether you accommodate it politically or not.

Triumph and Illusion, Volume V of Jonathan Sumption’s history of the 100 Years War, is out now.

Nevertheless, the presumption of innocence is a specific legal doctrine which seeks to limit the potential dangers arising from prosecution by the state. It is the most important decision-making rule in the criminal procedure.

Yet the precise implications of the rule, and the effects that it ought to have, are disputed by lawyers and legal academics. Many, for instance, think that a practice such as the use of the dock in British courts violates the presumption, as it risks prejudicing a defendant in front of a jury. Others disagree. But few would dispute that the core of the idea is that the prosecution must prove its case beyond a reasonable doubt. Today, English judges are advised to tell a jury that they must be “sure” of a defendant’s guilt before convicting.

The reason for the rule is commonly thought to be to protect the individual citizen from the power of the state, and the presumption does indeed have this effect. Nobody will have their property or liberty taken from them by the Crown’s judicial servants, unless the prosecutor, an agent of the Crown Prosecution Service, is able to make a jury or magistrate “sure” that the person violated the criminal law. This emphasis on liberty, however, obscures another side to this heavy burden of proof.

Suggested reading

The Noughties enabled Russell Brand

By Sarah Ditum

When a jury declares itself sure that the law was broken, it also implicitly declares its belief that the state’s immense penal power is being used in the public interest, and not being abused in pursuit of private or factional interests, for personal revenge or political advantage. In other words, the presumption of innocence protects the integrity and the authority of the state as a truly public institution. It reassures us, the Crown’s subjects, that the Crown’s agents are what they claim to be: the representatives of the supposed common interests protected by the criminal law, even if they sometimes get it wrong. That the presumption is a guarantee of the state’s authority is the underlying reason why it is so important in modern nations, and why even obviously repressive or corrupt regimes will often pretend to uphold it.

So, those who claim the presumption of innocence does not apply to public debate about Brand’s guilt are partly correct. The presumption is a core rule of public law which serves critical and specific political functions, and perhaps its name should be honoured by reserving it for legal proceedings. The weakness of their argument, however, is that the same considerations that lead the state to maintain the legal rule should lead ordinary citizens to be very cautious about public statements concerning the guilt of a person accused of wrongdoing.

When people who do not have direct evidence concerning Brand’s alleged offences make arguments that assume his guilt, the rest of us know that, since they neither witnessed anything nor heard all the evidence tested in court, they cannot possibly know for “sure” one way or the other. As a result, they reveal themselves as people who share the qualities of a state that does not maintain the presumption of innocence in its legal procedures.

And this can have certain potency. As John Stuart Mill pointed out long ago, the law and its police, courts and prisons are not the only instrument of censorship. Similarly, they are not the only way to restrict the lives of citizens. Stoking outrage, hysteria and fear in civil society can do that too. Consider how YouTube has already decided to stop Brand making any money from his channel, though none of the accusations is proved.

Suggested reading

Russell Brand's sexual apocalypse

By Jenny McCartney

Second, those who imply guilt without sufficient knowledge also reveal themselves to be people who are not capable of exercising real public authority, because their commitment to the public interest cannot be trusted. They are willing to defame another person on mere suspicion that the accused might have broken the law. True, they are not claiming to represent the public in the formal way a prosecutor does. Nevertheless, they discount the possibility that the accused may have done nothing contrary to the public interest in order to grind their personal or political axe.

This transformation of a criminal accusation into a political weapon confuses law with politics. Of course, the criminal law is the outcome of politics. When our political representatives decide that it is in the public interest to condemn and exclude a particular wrongdoing from social life, they make it a matter for prosecution and punishment by the state. Whether or not they are right about what is in the public interest is itself what political dispute is about; think of drugs laws or hate speech offences. But it is a serious mistake to imagine that, because law is the outcome of politics, law is a good way to do politics. Publicly assuming that unproven criminal accusations are true for political gain only undermines trust in the good faith of political participants, and trust in public life as a whole.

If the authorities were to take no action, to fail to investigate an individual following public accusations, then matters might be different. But that is a bridge we are not even close to crossing yet. In the meantime, the relish with which some commentators seem to discuss accusations of criminal wrongdoing is a marker of a political culture that is instinctively repressive and simultaneously unserious. It is not even two months since Kevin Spacey was acquitted of similar charges that had served to destroy his career, yet here we are again. Perhaps this time, Russell Brand will be proved guilty. Either way, those commentators who have already proclaimed his guilt will have only reinforced an idea propounded by Brand himself: that they cannot be trusted with the public interest.

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.

Suggested reading

Let's scrap the Human Rights Act

By John Gray

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.

More from this author

Is it illegal to insult Captain Tom?

By Adam King

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?

Suggested reading

The truth about eco-fascism

By Paul Kingsnorth

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.

More from this author

Is it illegal to insult Captain Tom?

By Adam King

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.

Suggested reading

Why make stealthing illegal?

By Jessa Crispin

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.)

More from this author

Barristers need to strike

By Adam King

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.

The killing was one of half a dozen or so last week in London alone, where 67 people have been murdered since the start of the year. Beyond these shocking figures, petty crime has become almost unpoliced, while robberies and burglaries are nearly always unresolved. The city’s Metropolitan Police force remains in special measures after a failing to address, or even really acknowledge, the failings apparent in the wake of Sarah Everard’s murder and other longer-standing scandals.

From the outside, the force seems entirely dysfunctional, somehow both unnecessarily authoritarian and impotent. Yet police services around the country seem little better. A further five forces are in special measures, with Greater Manchester Police failing to even record crimes, never mind solving them. Across the country there is a similar picture of forces being overzealous on trivial matters, yet repeatedly failing to deal with the most serious of crimes.

The wider criminal justice system is equally troubled. Overcrowded and crumbling courts cause unbearable delays to prosecutions, hampering attempts to bring criminals to justice. Anecdotally, lawyers tell me that trials are currently being listed for 2024, up to three years after the crime took place. This will be exacerbated by the strike action to be taken by publicly funded barristers, whose income has atrophied over recent years. Quite simply, the criminal and justice system is on the verge of seizing up entirely.

And yet, somehow, neither Liz Truss nor Rishi Sunak seem to recognise this, let alone offer any remedies to fix it. Truss’s recent major announcement on crime was not a strategy, but rather a list of things she wished were true: a promise to bring crime down without any new resources or thinking to do it, repeating a desire for targets and league tables without any sense of how those are met. Sunak, meanwhile, has promised the strengthening of sentences, but little that addresses crime prevention or detection.

Suggested reading

The emptiness of awareness campaigns

By Simon Ruda

For the most part, however, this lack of vision is merely a continuation of at least a decade of Tory impotence when it comes to lawlessness. The increase in police numbers under Boris Johnson’s government, for instance, was little more than a reversal of cuts and did not make up for the experience lost under the austerity-driven exodus. In particular, shortages of detectives have significantly worsened “clear-up” rates, with crimes more likely to go uncharged and un-convicted. As for those cases that pass this stage, they are still likely to linger in a court system which lacks sufficient judges, buildings, and lawyers to run effectively — all problems that could be largely solved by a commitment to spending where it counts.

Beyond that, the Conservatives are reluctant to confront systemic issues within the police. While ministers are keen to criticise the civil service that oversees it, the Tories appear reluctant to intervene in the actual organisation of police, despite the way the many forces fall short of the mark. What interventions have been launched in the last decade have often gone awry. The partial privatisation of the probation service, for example, proved muddle-headed, worsening performance and ending with an expensive bailout of providers. Similarly, the creation of Police and Crime Commissioners has offered little in the way of actual improvement; the office is poorly understood by the public and is notable largely for its scandals. Even the Johnson government’s reforms on sentencing — such as ending the automatic early release of offenders deemed to be a danger to the public — have been undermined by being pushed through in bills which also seek to reduce the right to protest.

Contrast this with the party’s long history of asserting its place as the home of law and order. The Thatcher government largely exempted the police from spending cuts, but also sought reform, passing the Police and Criminal Evidence Act in the wake of the Scarman Report into police search methods. Under John Major, a series of Criminal Justice Acts pushed for a more punitive criminal justice system, culminating in Michael Howard’s famous declaration that “prison works”.

Today, the party offers only soundbites, without conviction or fresh thinking. With the right approach, the Conservatives could combine the popular red meat of increased convictions and tougher sentences with the desire for more effective use of state resources. Yet they seem unable to deliver either, choosing instead to posture as the police fail and the country slips into the depths of lawlessness.

Suggested reading

Civil disobedience is coming

By Simon Ruda

Without clear action from a new prime minister, this stagnation will not be reversed. The police will remain a discredited organisation, derided for a preoccupation with offensive words and an inability to catch villains, while at the same time tainted with an internal culture of misogyny and lingering issues around racism. Meanwhile, the courts will continue to lack the resources to push through convictions, and prisons will remain violent and dangerous holding pens which do too little to stop future offending.

With an economic crisis looming, it’s hard to believe that crime rates, already at a 20-year high, will improve of their own accord. If nothing meaningful is done to stop this slide towards chaos, a bleak winter could easily spill into widespread civil disobedience on a scale not seen since the 2011 riots. The perception of crime, and particularly the feeling that the police service cannot deal with it, eats away at social trust. It’s a pain felt in every unlit walk home, every catcall, and every tale of a friend being mugged. And it won’t be healed by platitudes.

So, with two weeks to go, as they glide around the Tory shires looking to win their final votes, Sunak and Truss would do well to remember that crime isn’t a party issue, but one that haunts the country as a whole. And when we become numbed to attacks such as the one on Thomas O’Halloran, when an 87-year-old man can’t leave his home for fear of being stabbed, law and order can’t be said to have any meaning. Society becomes a vacuum, with anarchy threatening to fill the void. And there is nothing conservative about that.

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.

Suggested reading

Can the Secret Barrister tell the truth?

By Adam King

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.

Suggested reading

Covid safetyism has gone mad

By Adam King

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.

Suggested reading

The law can't end the culture wars

By Adam King

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.

More from this author

Tabloid fake law is not the only fake law

By Adam King

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.

Suggested reading

The Kafkaesque nightmare of British justice

By Jenny McCartney

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.

More from this author

The trouble with abolishing prisons

By Adam King

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.

A hit squad compared to a “well-oiled murder machine”. A lawyer and journalist shot on the streets of Amsterdam. A blasé approach to killing the wrong person — there’s even slang for every accidental victim: a vergismoord. Welcome to the Marengo trial, where 17 men stand accused of involvement in six murders, four attempted murders and preparing for six others between 2015 and 2017.

Fear hangs in the air around this court case, telling a tale of a country where the hydra of organised crime has so many heads that it is threatening the very rule of law. When the trial resumed this month, journalists were asked to sign agreements not to name judges or prosecutors, for fear of them being targeted. After reports that co-chief suspect Ridouan Taghi was planning a jailbreak, the streets around the fortified courtroom known as the Bunker are ringed with police cars and trained teams made up of police and soldiers.

The Marengo is only the latest in a series of organised crime trials to shake the Netherlands. This year, Dutch courts are also trying alleged criminal druglord Roger P., accused of turning shipping containers into an underworld prison, with its own gruesome “torture chamber”. Meanwhile, a Marengo side-trial involves motorbike club Caloh Wagoh members charged with shooting dead five people, preparing three other murders and “putting another seven people on the waiting list to be killed”.

“I call The Netherlands a ‘narco-state 2.0’,” says Jan Struijs, chairman of the Nederlandse PolitieBond police union. “We aren’t Mexico, with 14,000 dead bodies, but in our parallel economy, there is an attack on public order and unprecedented numbers of people with personal security — politicians, judges, prosecutors, police staff, journalists — because there is still a serious risk from organised crime. It is a huge problem, being tackled on every front, but we have a long way to go.”

Struijs first raised concerns that this small, well-connected trading nation has “characteristics of a narco-state” four years ago. At the time, there was a muted political response. But then the brother of the Marengo crown witness Nabil B was shot dead and the crown witness’s original lawyer, Dirk Wiersum, was gunned down outside his house. Finally, last July, celebrated crime reporter Peter R de Vries, who had unconventionally agreed to act as Nabil B’s representative, was shot in the head on a busy central Amsterdam street and died of his wounds.

Today, few would argue that increasingly violent crime has clawed its fingers deep into civil society. But as Lieselot Bisschop, criminologist at Erasmus School of Law in Rotterdam, points out, before you can combat the crime, it is important to understand who is involved and how. She and a team of researchers have been looking at the key drug runners’ entry and exit point of Rotterdam port, where last year a Hit and Run Cargo team (HARC) confiscated a record 72,808 kilos of cocaine plus another record of 1,500 kilos of heroin. “Whether it’s a good thing that they are catching more, I don’t know — is more going through anyway?” says Prof Bisschop. “The quantity aspect is always very challenging. It’s a dark number, guesstimates.”

More from this author

Inside the surreal Dutch lockdown

By Senay Boztas

Meanwhile, the Netherlands is apparently a centre of synthetic drug manufacture, with regular busts of “professional” crystal meth and MDMA labs, especially in Noord Brabant. When international police decrypted millions of messages on devices criminals thought were secure — such as Sky and EncroChat, and the Dutch decoded Pretty Good Privacy software for Blackberry’s in the Marengo case — they lit up a web of crime.

Experts agree the Netherlands’s infrastructure is key for both legal and illegal trade. In their 2020 book, Nederland Drugsland, Dutch police academy professor Pieter Tops and journalist Jan Tromp explored how criminals exploit its efficient ports, good roads, and strong financial and digital infrastructure. “The Netherlands has long been a trading country — not just the harbours but also our high-quality internet environment. We have huge numbers of bankers and our country is central in Europe in terms of all kinds of transport and transit,” says Struijs. “We have huge numbers of imports, which means a lot of drugs are mixed with legal trade, coming in containers of fruit or liquor. Organised crime takes advantage of the legal infrastructure.”

Corruption is another factor. As a nation, the Dutch are keen to make a deal — and regular businesses haven’t always been too fussy about carrying out background checks, as various banking money laundering cases and high tax haven rankings show. The NVB Dutch banking association says an estimated €16 billion in illegally-earned cash washes around each year.

Personal corruption is also a problem in a port 40km long and with 180,000 employees, says Bisschop. “Within Europe, it is definitely the gateway for any kind of trade and probably for cocaine. Over the years, the port has become more physically and digitally secure. We think this has contributed to more pressure on the people in the port. Basically, you need corruption to pull it off — both public and private, not just police and customs but also planners in container terminals. You need someone on the inside.”

So in court, says veteran crime reporter Saskia Belleman, there has been a spate of cases against allegedly corrupt customs staff, shipping and port employees, partly as a consequence of a Dutch gedoogcultuur of looking the other way. There are also concerns about so-called “collectors”, often young men who trespass into the harbour and collect drugs.

Nobody knows if the Netherlands is worse than other European port countries in terms of international organised crime, but its soft drug culture is undoubtedly a weak spot. Although smoking cannabis and coffee shops selling the drug are tolerated, it is illegal to grow commercially. This means that cafes offer a legally tolerated channel for criminal activity, and a training ground for young criminals.

More from this author

Why Rotterdam erupted

By Senay Boztas

In the Netherlands, it’s become increasingly common to read about the ethnic aspect of organised crime — the so-called “Mocro Maffia” Moroccan-origin mafia which inspired a true crime book and spin-off television series. But Peter Schouten, one of the new lawyers for the crown witness in the Marengo trial, says: “It’s not true that it’s only people with another ‘heritage’. Certain gangs have a kind of micro-organism, a gangland where there’s a lot of the same culture, but there are other gangs arrested, and you read stories saying that the new kingpin is ‘Bolle’ Jos from Brabant.”

It’s hard to measure organised crime, partly because victims don’t always make reports, but ethnic minorities are overrepresented as crime suspects. Statistics Netherlands researcher Maarten Bloem says, though, that “if you correct for age, education level, socio-economic category, there is not much difference between different ethnic origins”. He concludes: “It’s not so much about someone’s colour but the situation in which they find themselves.”

It is unclear whether the segregated, Dutch grammar school system helps contribute to excluding certain groups, too: critics say it selects too young, hammers in socio-economic difference, and makes no account for innately-talented children who speak Dutch as an additional language.

Crime, after all, can be seen as a way out of poverty and an equal opportunities recruiter. So there’s a widespread recognition that long-term crime prevention needs to offer other options, especially to young men in problem districts. There’s a new drive targeting “vulnerable” areas in Utrecht, and projects such as working with the “top 600″ criminals and their families in Amsterdam. Meanwhile, international efforts have been led by the mayors of Rotterdam and Belgian Antwerp — where a record 90 tonnes of smuggled cocaine was found last year. They have visited South American counterparts and lobbied governments to ramp up international efforts against organised crime, increase barriers in harbours, and confiscate criminal assets.

In Rotterdam, there are promising signs of public-private cooperation, with busts by the multi-agency HARC, a new Information Sharing Centre, a business integrity initiative, and a “training container” to coach harbour staff in combatting corruption. A long-awaited law banning civilians from the container area is in place to help apprehend those vital ‘collectors’ picking up drugs from containers, while Rotterdam mayor Ahmed Aboutaleb is also enforcing a €2,250 anti-nuisance penalty. The new Dutch coalition hopes to add to these initiatives. It will start investing specifically in combating crime that “undermines” public order from 2023, ratcheting up to a €100m yearly investment by 2025. In the meantime, the last budget put aside an extra €434m to increase annual budgets for police, judicial organisation and subversive crime prevention, though experts warn that money must not be used to add to the layers of bureaucracy.

Suggested reading

Why Rotterdam erupted

By Leighton Woodhouse

Instead, some want a shift in public attitudes on drug taking: as the prosecutor said in the torture container trial, show users the “abhorrent” consequence of their habits rather than perpetuating the permissive, hippy culture of the Seventies. “It’s not done in the Netherlands to point in the direction of drug users,” says Belleman. “If you don’t use drugs, there’s no market. But people who use cocaine at the weekends don’t make the connection between organised crime and their drug use — and if you tell them, they are really offended.”

Perhaps the biggest problem, however, lies in how to prosecute those alleged criminals who are caught. In the mega-Marengo trial, hearings are currently mired in details such as whether the co-chief suspect Saïd Razzouki left his reading glasses behind when he was extradited from Colombia in December, and whether due process was followed in his subpoena.

The accused in the trial deny the charges, and Schouten doesn’t expect a verdict until 2023. “This trial is under an enormous amount of pressure,” he says. “This is about the rule of law, the dyke against injustice, and we must continue to protect this. But there is a lot of fear.” Even when the trial verdict is reached, until words turn to action, that fear is unlikely to go away.

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.”

More from this author

The law can't end the culture wars

By Adam King

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.

Suggested reading

The empty cult of Captain Tom

By Tanya Gold

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.

Suggested reading

The Kafkaesque nightmare of British justice

By Jenny McCartney

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.

More from this author

Can you ever trust a jury?

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.

Last week, Breivik appeared before a parole hearing, asking to be released from prison. If you’re unfamiliar with the procedural mechanics of Norway’s criminal justice system, you might think that “Breivik” and “parole” have no business belonging to the same sentence. But in Norway offenders are legally entitled to apply for parole at the halfway point of a maximum prison term.

Breivik, who in 2016 ludicrously filed a complaint that he was being subject to degrading and inhumane treatment in prison and who has now served 10 years of his 21-year sentence, was never going to renounce the opportunity to further ridicule the largesse of his liberal jailors: when he walked in to the courtroom, ponced-up in a black slim-fit suit that was plastered all over him like cheap spray tan, he flashed a Nazi salute. He then gave an hour-long speech, in which he said: “Today, I strongly dissociate myself from violence and terror… I hereby give you my word of honour that this is behind me forever,” straining credulity not least by his invocation of the word “honour”. For some reason, the court allowed this travesty to be filmed and broadcast. It did not, however, allow the travesty of freeing him: Breivik’s parole was denied.

As a criminologist, I am not supposed to say that Breivik is a monster, much less express any vengeful emotions toward him. Rather, I am supposed to place him within a broader context and resist the seductive temptation to “Other” him.

I am supposed to say that he’s a product of society, whose homicidal actions speak to the deep alienation that some young men experience in a spiritually depleted world at the End of History. Or I am supposed to highlight how Breivik had internalised the trauma of a painful childhood — his mother tried to orphan him and his sister when he was a child — and then sought to cancel out that trauma by violently imposing it on the people who inhabited that same desolate society. I am supposed to take all the monstrousness that Breivik unleashed against his multiple victims, most of them teenagers, and causally tie it not to Breivik the person but to other sources of social dysfunction that produced him. I am supposed to say that Breivik is, to annex the title of Åsne Seierstad’s account of his massacre, One of Us.

Suggested reading

Norway confronts its Breivik demons

By Asne Seierstad

As a criminologist who studies terrorism, I’m all too familiar with Hannah Arendt’s thesis that while human cruelty can be monstrous, its perpetrators are often pathetic men (and sometimes women) who are neither demonic nor sadistic, but ordinary people with grubby little motives, like career advancement, pleasing superiors or not wanting to stick one’s neck out for fear of censure.

When I first read Christopher Browning’s Ordinary Men, a book about how ordinary Germans, from all walks of life, willingly participated in the open-air slaughter of tens of thousands of Jewish civilians in occupied Poland between 1941 and 1942, I was impressed by its overall Arendtian argument; it seemed profound and radical. According to Browning, the men of Reserve Police Battalion 101 killed not because they were fanatics motivated by the ideology of murderous anti-Semitism, but because they were psychologically weak.

As Browning puts it: “To break ranks and step out, to adopt overtly nonconformist behaviour, was simply beyond most of the men. It was easier for them to shoot…” A broader argument soon materialises: that there is a line of good and evil that runs through every human being; that we are all, when the circumstances permit it, capable of terrible acts of inhumanity.

I have now come to think of this account of human evil as banal and partial. And I have come to dislike the glibness with which the account is expressed by its defenders, as though they are imparting some deep and unsettling truth about the human condition that is lost on the plebs with all their talk of evil and mythical monsters.

Well, we are not all capable of inhumanity, and while some people fearfully succumb to the weight of group dynamics and kill, others can’t wait to get started with the business of slaughter and need only the flimsiest of pretexts to enter a berserk state. And still others not only refuse to follow orders, but bravely intervene to stop their fellows from killing civilians.

The problem with the Arendtian thesis about ordinary killers, and the broader consensus that has hardened around it, is that it can’t explain ideologically fervent men who revel in the idea of murdering and humiliating scores of their perceived enemies. Men like Breivik.

Granted, Breivik was a pudgy-faced, piggy-eyed loser with blond sweaty hair — all now shaven off. As Seierstad recounts in her book, Breivik’s life was an elaborate catalogue of miserable failures. The problem was his tremendous narcissism and resentful anger, which sabotaged him at every turn.

More from this author

The theatre of terror

By Simon Cottee

As a teenager, he reinvented himself as a graffiti artist called “Morg”, claiming to be the top “tagger” in Oslo. But he was shit and annoying and was soon excluded from the “tagger” community. In another reinvention, he tried his hand at selling fake university diplomas on the internet, until he nearly got caught. He then joined the anti-immigration Progress party, intent on becoming a politician. That, too, went nowhere. Women, in particular, seemed to find him radioactive: he ordered a Belarusian mail-order bride who left as swiftly as she came. He would brag to his friends that he was a brothel man; this self-righteous and disgust-prone creep was probably terrified of women.

But for all these squalid and all-too human details, Breivik was a singular individual with a troglodytic interior world that made him stand out. Around 2006, he moved back in with his mother and retreated from the world, living almost entirely in his imagination. He became obsessed with the idea that white European culture was under existential threat from marauding hordes of Muslim migrants, abetted by white cultural Marxists and multiculturalists. And he began nurturing the fantasy that he would lead a secret order of knights to stop this cultural “genocide”.

Yes, Breivik was a chump and a radical loser, but he was no ordinary killer following orders, still less some colourless bureaucrat orchestrating mass-murder from behind the scenes, as was the case with Adolf Eichmann, the apotheosis of Arendt’s banal evil. Far from being banal, Breivik’s motives were related to his sense of worthlessness and lack of virility. Only by violently crushing all those who had made him feel weak and pathetic could he restore his sense of manly “honour”. In short, Breivik was an enthusiastic killer who wanted to kill.

One of the dark ironies exhibited in Breivik’s parole hearing was his appropriation of liberal explanatory motifs to excuse his monstrous behaviour. “I was brainwashed,” Breivik told the court on the first day of the proceedings. He had been radicalised online, he elaborated, embracing the language of victimhood that he so despises in others and that so many progressives employ to rationalise or explain away the crimes of “the oppressed”.

Breivik once had a grudging admiration for al Qaeda, and the courage with which its foot-soldiers embraced death in defence of their beliefs. There was no culture of violent martyrdom among neo-Nazis, and he bitterly lamented that. Now, it seems, Breivik has taken a leaf out of the jihadi apologia playbook, claiming that he was radicalised by dangerous material on the internet. While he hasn’t gone the full Shamima Begum, who has explicitly renounced Isis and its ideology, his displacement of responsibility onto the internet closely resembles hers and many others like her.

More from this author

The trivialisation of trauma

By Simon Cottee

It is hard to know if Breivik’s claim that he was radicalised online is sincere. Given that he continues to hold firm to his to neo-Nazi beliefs, it seems doubtful. In fact, I am inclined to believe that it was some private joke aimed at other neo-Nazis to mock liberals who use the self-same explanatory trope to excuse the radicalisation of jihadists.

I also don’t blame Breivik for flagrantly ridiculing his liberal oppressors, as he sees them. In Breivik’s eyes, they are his enemies, and he is a political prisoner. Perhaps the Norwegian authorities should in turn take him seriously and recognise him as such, which would mean refusing him any public stage on which to propagandise his vile beliefs.

Even in liberal Norway tolerance should have it limits — as should the virtue that professes that even the most fanatical and dangerous of murderers should be given a chance to present a case for their release.

They’ll be sitting outside the school gates, or in the resort where they are doing holiday work, or on a bench at a summer camp. Head down in a book. They want to be singers, or anything to get away from home.

The approach is made by a couple, or by an older woman on her own. Jeffrey Epstein and Ghislaine Maxwell: friendly, worldly, wealthy. Ghislaine is armoured with a classy accent, a Yorkshire terrier, and expensive clothes. She plunges into their lives. One of the accusers did not “have the reading ability” to say Maxwell’s first name. But forget that. Ghislaine wants to play the giggly older sister; pal and confidante.

The accusers’ testimony suggests that Ghislaine seemed young in herself. She offered wooing gifts: preppy shirts, loafers, Victoria’s Secret underwear, cashmere sweaters. They become friends with her in malls and cinemas. Their ages when Ghislaine allegedly facilitated, and occasionally participated in, Epstein’s sexual abuse of them, were: fourteen, fourteen, sixteen and seventeen. Jane, Carolyn, Annie, and Kate.

Ghislaine Maxwell was from a different universe. The question of her trial was whether she, like the girls, is a victim of Jeffrey Epstein too. Ghislaine, daughter of the publishing tycoon Robert Maxwell, and variously described as Epstein’s girlfriend, madam, employee, best friend, pimp, and general, was arrested in 2020. She was accused by the US government of gathering up Jane, Kate, Carolyn, and Anne over a decade, like a beachcomber, and delivering them to Epstein.

More from this author

Power is corrupting the Tories

By Will Lloyd

For four weeks, the trial in lower Manhattan has been watched with awe. Outside the courthouse stand placards and protestors and paranoiacs. Three overflow rooms inside contain the world’s press, concerned private citizens, and podcasters. They are drawn there for irresistibly tabloid reasons: the downfall of rich people in heavenly places who did evil things.

Epstein and Maxwell were high society floaters, who bobbed unflushably in transatlantic streams, fishing for famous friends. (Taki says she was “not a bad girl” — I suppose we’ll have to take his word for it.) By the time Epstein earned his first conviction for sex crimes in 2008, the couple had collected an entire Met Gala of chintzy brilliancies: actors, publishers, royals, writers, scientists, academics, and politicians. That constellation has blinded many to the couple’s more gothic collection of broken young women. Why care about them, when they are landmines lying in wait for Prince Andrew, Ariana Huffington, Geordie Greig, Donald Trump and Bill Clinton?

These embarrassing links, the dozens of embarrassing photos that accompanied them, and the embarrassing circumstances surrounding his death, transformed Epstein. In the world’s imagination he was no longer a rich bullshit artist and an abuser. He became a popular demon, a supervillain, a Halloween costume. Writers polished their 24 Carat allusions: Epstein was Machiavelli, he was Mephistopheles. He was the ultraviolet scan that illuminated a rotten system of perversion and power. Maxwell’s trial was widely considered to be the last chance at justice for many of the women who claim to have been abused by Epstein.

But Epstein is dead. This was Ghislaine’s trial, and throughout she has been circumspect, almost dignified, and given nothing away. Videos outside the courthouse showed her old and arthritic and beaten down. She does not look like she will ever adjust to thinking of herself as a dangerous criminal. She appeared tired of being herself. Sooner or later, compassion was bound to be felt for the accused. It’s only natural. Old university acquaintances suggested they felt pity for her. Others wondered what went wrong, without ever probing the circumstances of Maxwell’s alleged crimes. Friends anonymously briefed glossy magazines, and said they could never imagine her scoring trailer trash by skulking around outside public schools. It just wasn’t her style, darling. None of them ever took the stand to defend her though. That just wasn’t their style.

Suggested reading

Will Ghislaine Maxwell get a fair trial?

By Kat Rosenfield

These disposable, costless emotions were a perfect echo of the defence put up by Maxwell’s attorneys. They said she had become a bullseye for the limitless greed, pointless anger, and false memories of the accusers. Maxwell was the real victim here. This was whiplash; an acidic backwash from Epstein’s death that mistakenly threatened to dissolve their client, because he could never stand trial. Eternal archetypes were invoked. “Ever since Eve was tempting Adam with the apple,” said one Maxwell lawyer, “women have been blamed for the bad behaviour of men”.

The men were Epstein, and at a more distant remove, Robert Maxwell. To believe in the defence, you had to believe that Ghislaine had been without a sense of her own interest for decades. That she was helplessly shaped by these amoral patriarchs. Her father and Epstein were eerily similar, if not the same man. Both escaped obscurity and exchanged it for wealth. Both courted ‘brilliant scientific minds’ with praise and parties. Both were talented at exploiting the weaknesses of rivals they destroyed on their way up. “You’re talking about a sociopath,” said Steven Hoffenberg, Epstein’s former business partner. “Every component of his existence was the destruction of other people.” Hoffenberg might have been describing Maxwell.

How much of their behaviour was for show, and how much was real, and whether they knew the difference, was unclear. A bewildering aura of fantasy surrounds them. They had a curious shared interest in the Marquis de Sade, and they inhabited airlessly Sadean worlds of selfishness, injustice, and misery. In de Sade’s pages nobody ever changes. His characters are glazed and flat; moral development is an impossibility. As one of the libertine monks in Justine, or The Misfortunes of Virtue (1791) — a novel Epstein displayed in his home and proudly showed off to a journalist — rhetorically asks: “Can we become anything other than we are?”

Maxwell and Epstein answered that question with an emphatic no. They would forever be outsiders who shredded convention, determined to consume whatever and whoever they found once on the inside. Each was regarded with a mixture of dread, sarcasm, and awe. Their most credulous, generous supporters came from the top. Epstein, as Maxwell did the British establishment of his time, regarded them with contempt. He once told his brother that if the public knew how corrupt his Wall Street friends were, there would be a revolution.

More from this author

Prince Charles has finally won

By Will Lloyd

Above all these men lied, unstoppably and uncontrollably. They lied to business associates, mistresses, journalists, judges, creditors, and lawyers. They lied about money to make more money. Their skill was faking and lying uncommonly well enough to create new, unstable realities. Their lies became eight-storey yachts and the largest townhouse in Manhattan. Every new acquisition was honeycombed with surveillance equipment; recording devices and teeny tiny cameras. This is usually considered further evidence of these men’s perfidy. Blackmail gatherers, Epstein and Maxwell, working on another sick angle, preparing a new front in their war on everyone they ever met. But they were not spying on their guests.

The evidence that Epstein blackmailed his friends is thin, and has fallen apart before. Maxwell used his devices to track a secretary who didn’t love him around London, as she slept with one of his underlings. They surveilled their environments because all their lies made their environments, and themselves, insecure. Each was one or two discoveries away from the collapse of their entire world. The footage and the recordings were not made for blackmail. It was a form of consolation. It proved that for all their lies, they were still real. One of Epstein’s homes was lined with framed glass eyeballs made for injured English soldiers from a deadlier century. The display was a warning to his guests, and a reminder to himself: watch your every move.

Are we supposed to paint Ghislaine Maxwell on this bleak canvas as the feckless girl next door? A crass ingénue, an Eve who didn’t know any better? It is closer to the truth to say that both men needed her as much as she needed them.

Maxwell family legend has it that Ghislaine was anorexic as a very young child. She was probably abused by her father, as he was by his, when she was an adolescent, with riding crops and shoe horns. But by the time she arrived, fully formed and totally integrated, at Oxford during its woozy Brideshead revival years in the early Eighties, Ghislaine’s dramas of individuation were over.

She was ahead of the pack, imperious from the off. She spoke five languages and was the director of a football club. The beautiful “glamazon” rested a boot on Boris Johnson and parties with Gottfried von Bismarck. She was inadvertently to blame for the creation of George Monbiot. Her father kept one photo of his nine children on his desk — a portrait of Ghislaine. As his mania grew and his business empire fell apart in the later Eighties, she remained good, pure, true. His colleagues thought him “pre-moral”, disconcerting, disgusting, and frightening. And he was fond of saying “I have a beautiful daughter who is just like me.”

Suggested reading

Robert Maxwell was no mystery

By Tanya Gold

Ghislaine was already in New York when her father died in 1991. Supposedly adrift, grieving, and broke, the conventional narrative has Epstein performing a bat-like swoop and winging Ghislaine off into his cave. “He saved her,” one Maxwell friend told Vanity Fair, “Jeffrey took her in. She’s never forgotten that, and never will.” In this telling Ghislaine is another picked-up, pitiable woman, ensnared by a master manipulator. Whatever crimes she involved herself in later could almost be excused. They were payments for a debt.

All you have to do to believe that is forget she was Robert Maxwell’s daughter. She had a glittering upbringing. She was skilled at getting what she wanted, at reeling people in, at throwing parties. Epstein was cash rich but class poor. Described in these early years so often as a “schlub”, he needed a charismatic partner to launch his conquest of Manhattan’s charity auction set. Otherwise he was just another nerdy dogsbody who helped plutocrats avoid paying tax. Every bank in the city had a thousand of those.

Ghislaine helped propel his somersault into the ranks of the super wealthy. He valued her as his equal: “Ghislaine is the best at what I need,” he said in 2002. “Ghislaine speaks five languages fluently… She’ll come to a meeting, and not only will she be able to translate what the person’s saying… but she can also give me a sense of is the person telling the truth.” All she received in return were private jets, lavish estates, and vast sums of money.

This world melted away, like her father’s did. The trial came long after the deluge. It was mind-numbing. There were endless examinations of flight logs, property portfolios, and financial transactions. The accusers were tortured on the stand by Maxwell’s lawyers. To save their Eve, they had to destroy the credibility of four others. The women sobbed; it sounded like the air around them was being eaten by the sadness they felt. We learned that post-Epstein, Carolyn went on to become a drug addict, prostitute, and single mother. Facing Maxwell a few weeks ago, she pointed at her and shouted: “You broke my soul.”

If Ghislaine still had a soul it was well hidden in the courtroom. You had to look for it elsewhere. The dozen pictures of her and Epstein released during the trial are a good place to start. She has the same face in every photo. A greying man and his partner, affluent and easy, sitting in a grass field with a dog; as perfectly self-possessed and unreal as a couple in a Ralph Lauren catalogue.

This was the only reveal from the trial. There were no big prizes, no doomily grim revelations about paedophile rings operating at high altitude, among the jet set, that the placards outside the courthouse prayed for. The apocalypse never arrived because the apocalypse had already happened: it was the afterlife of the four accusers. There was no final answer to the mystery of Epstein’s death. Only the look Maxwell gives him in each image, taken over the span of their eleven-year relationship. Love. Nothing could be guiltier.

The police officer gives her a hard, cold answer: “That’s rape.”

This is a scene in the Emmy-winning I May Destroy You, which last year served to briefly focus the conversation about sexual violence on the underreported crime of “stealthing”. In the UK, where it is set, removing a condom without the consent of your partner is illegal. The same is true in Germany, and one jurisdiction in Australia. Recently, California became the first US state to ban stealthing — or removing, damaging, or otherwise interfering with the integrity of birth control during sexual intercourse. And a few weeks ago, Chile became the latest nation to follow suit.

But the fact that stealthing is a crime doesn’t necessarily help Arabella. She does not press charges, as she no longer has any physical evidence. She is not compensated for her purchase of emergency contraceptive. And the law doesn’t act as an arbiter between herself and the man who harmed her. It does help her in one way — by telling her definitively that her intuition is right: this act was wrong and hurtful and should not have happened. But is that enough?

Suggested reading

Did Bill Cosby deserve to go free?

By Kat Rosenfield

When we look to address wrongs — and to expand our understanding of what causes harm — we so often look to the creation of rules, laws and institutional responses, and stop there. The act of criminalising stealthing is meant to announce to perpetrators and victims alike — who, like Arabella, and possibly her own rapist, might not know — that it is classified as rape, and comes with potential consequences. When Chilean deputies put forth the bill, lawyer and politician Gael Yeomans followed up the announcement with, “Yes, gentlemen, that is a sexual assault even if you do not like to hear it.”

All this allows politicians to say: “we are taking this seriously.” But the promise of justice is a difficult one to keep, in practice. The United Kingdom has only had one successful conviction of stealthing. In that particular case, a man removed the condom in the midst of an engagement with a sex worker, continued to have sex with her despite her protests, assaulted her, and left without paying. His overt aggression and violence — he reportedly threatened to murder the judge presiding over the trial — made it easy to find him guilty.

But the overwhelming majority will not find justice within these systems — partly because it’s a crime that can happen without the victim noticing. In Alexandra Brodsky’s survey of people who were victims of stealthing, many of them didn’t realise the condom had been removed or tampered with until after the completion of the sexual act, sometimes not even until the partner had left. This makes it almost impossible to prove it happened.

People have long struggled to prove they have been raped for the very same reason: lack of corroborative evidence or witnesses. But with stealthing, it’s even harder to prove the intention to do harm. Condoms come off and they break. Making a case that the removal or damage wasn’t accidental or inadvertent is harder even than making a case that you said no when your rapist is insisting you said yes.

Suggested reading

Can you ever trust a jury?

By Adam King

The consequences of stealthing are very real, though. Those who spoke with Brodsky report scrambling for health resources after discovering what their partner had done: making appointments for STI tests, procuring PrEP to protect against possible HIV exposure, buying the morning-after pill. Some of these medical interventions have debilitating side effects, like cramps and headaches. Some might not work, meaning more medical interventions.

And all of these services can be difficult, expensive and occasionally impossible to access, depending on the victim’s location and financial situation. Even in cases of forceful rape, hospitals in America are not legally obligated to give victims PrEP or emergency contraception — Catholic hospitals in particular make it difficult to procure any medication that might interfere with a potential pregnancy.

So often, then, when citizens find themselves in crisis, they discover there is a wide gap between what is available and what is accessible, and between what might be useful to them and what they are told they can have. This is reminiscent of the pro-choice politicians who give lip service to “protecting Roe v. Wade,” while doing nothing to make abortion affordable for people with low incomes, or to restore clinics that have been shut down by anti-abortion activists’ nuisance suits, or to decentralise services away from abortion clinics — which are often the targets of harassment and threats of violence.

Sure, abortion is available — if you are lucky enough to live in a city that has a clinic or wealthy enough to travel for it, and of course if you have the funds to pay for the procedure. But it’s not accessible — doctors should be able to offer medical abortifacients directly to patients, or mail them to those in rural environments or in abusive situations.

This state of affairs has become so acceptable to most of the politicians in power that it’s very rarely discussed — even by those who say they care about reproductive justice. The subject is left to Hollywood: trying to access abortion services is so commonly understood as an arduous and complicated process that it’s become the plot of multiple films — Happening, Four Months Three Weeks and Two Days, Never Rarely Sometimes Always, Plan B. In most cases, the primary character is finally able to find the care they need, even if it drains them financially, emotionally and physically.

Suggested reading

There is no spiking epidemic

By Tom Chivers

The new law in California makes stealthing a civil matter, giving the victim the opportunity to sue for damages in civil court. If the crime led to the transmission of a disease or an unwanted pregnancy, there is at least the chance of compensation, even if that chance is slim. The burden of proof is less heavy in civil courts than in criminal ones, but it’s difficult to imagine scenarios in which the judgement didn’t come down to trusting one person’s word over another’s — which historically hasn’t gone well for victims of sexual assault.

And this might be especially true if there isn’t a tangible result to the stealthing — no infection or pregnancy: if the victim did not accrue costs in the pursuit of health services. Was harm still done? Clearly, yes: trust has been violated, emotional fall out is likely. But when we try to convert that experience into dollars and cents — when trying to define the precise dimensions of the damage done — we reach for clarity and find only more murk.

Suggested reading

Sexual assault is the great leveller

By Tanya Gold

In her 1998 essay, “The Secret Sharer: Sex, Race, and Denial in an American Small Town” — recently collected in What We Don’t Talk About When We Talk about MeToo — JoAnn Wypijewski told the story of Nushawn Williams, a young black man who infected multiple women with HIV through unprotected sex, knowing he was positive. The small town of Jamestown, New York, wanted to show it was taking the harm done to these young women seriously — and prevent any more women from being infected. And so, it filed criminal charges against Williams for reckless endangerment and statutory rape (two of his partners were underage).

Many of the townspeople had opinions on the case — about how evil Williams must be, about what was “wrong” with the women and girls who had unprotected sex with him when HIV/AIDS was all over the media. Few paid much attention, however, to what those women and girls might need now that they found themselves infected — or even what could have helped them before their encounters with Williams. There were free condoms available through the health clinic, but they weren’t accessible, because there was so little outreach in the community.

Plenty of politicians contributed to turning this local case into a nationwide scandal — Rudy Giuliani said Williams should be charged with attempted murder — but few showed any interest in expanding medical access or offering childcare services to those low-income women who had had HIV+ babies from William. Everyone got what they wanted out of the situation: the politicians burnishing their reputations, the TV commentators using the AIDS panic to gain attention, and the media who made money by creating a scandal. Everyone except the women most affected.