The atmosphere in court can be dry, but there is a buzz on the day a key witness gives evidence. Anticipation hangs in the air and speculation is whispered in the public gallery, passed between reporters and interested parties. 'What do you think they will say?' Normally, the courtroom itself is an island of calm throughout proceedings, regardless of what is going on outside; the media scrum around a Christine Keeler or Lord Archer doesn't penetrate the sanctuary of benches, barristers in wigs and gowns passing notes amidst piles of lever-arch files, all under the watchful eye of a stern judge. But on the day a key witness gives evidence, some of that excitement percolates through to the courtroom itself, giving a real buzz to the day's proceedings.
There was a similar feeling to the press conference held yesterday for the evidence-in-chief of Dominic Cummings. The political fall-out over it has already cost the government a great deal of trust, a commodity they cannot afford to lose in the midst of the biggest public crisis since the Second World War. So what would the chief SPAD say? What was his excuse for seemingly breaking regulations his government set to protect public health? Would this clear up the matter and allow people to regain their trust in government, assuring them that those who set the rules were subject to the same rules as the man in the street (or, if we keep our legal theme going, the socially-distancing man on the Clapham omnibus)?
Cummings should be pleased that this wasn't evidence being given in a courtroom setting and it was, strangely, in the Rose Garden at 10 Downing Street. Leaving aside the rather large issue of why it was deemed appropriate for an unelected advisor to give a press conference at all - in defiance of all political conventions - the press conference will have raised eyebrows as well as questions. Cummings' bizarre and contradictory explanation of his actions in March and April would, if given in court, have had cross-examining counsel drooling.
It's an exchange I would give money to see: the experienced silk, composed and polite, facing down the arrogant witness. The little smirk Cummings made at the very end of his unprededented media appearance would, transported into court, have been noticed. In all honesty, I'd love to be in the place of that silk; a story so full of contradiction and hubris is begging for rigorous cross-examination, and I'd be willing to bet that any half-trained bar student would be able to take the entire story to pieces with half-a-dozen targeted, precise questions - especially if they had done their homework on the writing that surrounds the whole case.
The big question would be how to approach a witness like Cummings. The barrister would have to measure a number of things - the mood and patience of the jury with the witness, the stage of the case, what other witnesses have said - when deciding how to deal with him. It is possible to imagine that defence counsel would have advised Cummings not to give evidence in the first place, taking the gamble of an adverse inference over the risk of his man tying himself in knots that could be unpicked by any competent legal professional. Depending on the mood, it could be possible for the cross-examining barrister to discredit the evidence with one or two swift questions, perhaps repeating some of the statements back to the witness before making an excoriating coup de grace.
"You say neither you nor your wife had symptoms?"
"You say you drove for five hours without a break, with a child in the back of the car?"
"You say you went for childcare, yet never received any assistance when you arrived?"
"You say you were ill, but you left the house to take your child to hospital?"
"You wrote the guidance, do you not understand what you were writing?"
"You say you wanted to check you were safe to drive?"
"Your way of checking eyesight was to drive a car? For thirty miles? With your wife and child in that car when you were uncertain?"
"The fact is that we can't trust a word you say, isn't it?"
Such an approach can really damage a witness. It's short, it's sharp, it makes the point. If a jury or panel of magistrates is already impatient with a witness it can make their minds up. There's very little subtlety to it and it gives rise to 'explosive exchange in court' headlines. It's the drama that television is made of. To an extent, it's a hack-and-slash, broadsword approach to cross-examination, but there is a risk attached to it. It can come across as rude and turn a case the wrong way if the advocate has read the room incorrectly. Sympathy for the witness - who is being bullied, after all - can override the evidence being presented, much as it shouldn't be. People making the factual decisions in the case are human.
Less dramatic, but for me more effective, is the approach of killing the witness with kindness. It won't create front-page headlines. There won't be gasps at revelations and fiery exchanges. Instead, it rewards patience on the part of the advocate and shows up the witness through politeness, building them up, then pointing out every inconsistency. All of this is couched in terms of getting to the bottom of the matter. The witness has two choices: they can provide explanations that further create inconsistencies and cast doubt on their veracity; or they can agree with you and undermine their own case. Of course, there is the third option, when they blow up in your face and seem to the jury like they're unreasonable under polite questioning, which is also unhelpful.
This is an approach with Cummings that would be worth seeing. There would be a slow build-up of the original case. "Can you confirm..." "Just for the avoidance of doubt..." "You say that this was the case..." Then there would come the slow, gradual tearing down of everything that had been said. "If I can take you to your own witness statement, dated..." "Is this accurate..."
It would take hours. No doubt by the end of it reporters' hands would be aching and the court artist would have been absent for the entire afternoon session, creating their sketch for the evening news. But the jury would be left in very little doubt as the barrister's questions poke holes, rapier-like, in the witness's story. Each inconsistency would be exposed, along with its reasons. Where only reasonable doubt needs to exist to acquit, any doubt that the defence was a pack of lies just would not exist, even without those words being spoken.
This is a case that will never come to a court of law, but the court of public opinion should be able to convict Dominic Cummings. At a time when confidence in the government is essential, he has done more to undermine that confidence - and therefore public safety - than anyone. Those who make the rules cannot be exempt from them, and if caught flouting those regulations they need to have the integrity to resign as a point of principle. It is particularly important in those who are unelected as they are otherwise unanswerable to the people within a democracy.
As fun as it is to imagine a tense courtroom exchange between advocate and witness, there is a serious point here: we should not be being asked to believe Cummings. We should not be watching a government put the job of one man - a man who has previously said that 'if some pensioners die, too bad' - ahead of the lives of people. Nor should his job be placed above the sacrifices that people have made in order to protect people from this virus. People have been unable to see their loved ones, sometimes to the extent where they have not had the chance to say goodbye in their loved ones' final days. People have lost livelihoods. All too often - in no small part down to lax guidance and the government's overly laissez-faire attitude to lockdown - people have lost their lives. With the latest Financial Times estimates suggesting that 60,000 people have now died as a result of COVID-19 - 0.1% of the population between March and today - his continued presence in the highest echelons of government is a gross insult to the people of Britain.
I do hope to see him in a court of law one day. It will be interesting to see how he copes with being ripped to pieces when his arrogance and lies catch up with him.
Tuesday, 26 May 2020
Sunday, 10 May 2020
The Coronavirus Law, Or How Not To Draft Legislation Unless You're Trying For Herd Immunity Via The Back Door
I'm going to hazard a guess that if you're reading this you're aware of the Prime Minister's address to the nation, regarding the loosening of lockdown restrictions. You may be searching for answers; it's hardly like the actual changes were made clear.
I can't provide those answers yet. I'll probably write something new on the restrictions once I've read the published guidance tomorrow. I already have a few thoughts on that - the main one being 'who on earth other than myself dives into the House of Commons library and Legislation.gov.uk in their free time to find out what they can and can't do?' - but they'll also have to wait for a later time.
The situation is as clear as mud. And, just to add further sediment to the water, I'd like to start at the end.
In his address, Johnson stated that fines for breaching lockdown will be increased. Good. Positive start. For me, the main problem with lockdown has been that it hasn't been properly enforced. At least, the main problem with lockdown that isn't the fact that it has been subtly and gradually loosened through contradictory advice from the government has been that it hasn't been properly enforce. A deterrence through proactive policing isn't a bad thing. It's worked in France and Italy, and it would work here.
The problem is the regulations themselves. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are pretty clear when someone is allowed out of their home. A person may leave their home when:
Interestingly, a big deal was made of the restriction on personal exercise when lockdown measures were first introduced. The law itself at no stage makes reference to not being allowed to exercise more than once a day; this was only ever guidance without legal force. And that guidance has been loosened as time has gone on and the government has taken an increasingly populist approach. Neither was there ever a legal restriction on going out elsewhere to exercise, nor a proscription on different types of exercise. You know those people who went for a wander with a picnic in the park? Lawful excuse. Complete idiots, but when the law has been rendered unenforceable by virtue of being thought up by people without a clue, there's no legal recourse.
Also loosened - quietly, without telling anyone - have been the restrictions on freedom of movement outside the home. Again, you may remember there being a big deal made of the main reasons you could leave home. Those haven't changed; in truth, nor have many of the activities listed above. They were always legal; the government just didn't tell you about it. The fact is that the lockdown has, in fact, only ever related to the restriction of business practice with a prescribed list of businesses who may and may not operate.
So what of today's proclamation? Legislation.gov.uk interestingly says that there are no pending amendments to the statutory instrument that manages the lockdown; whether this is true or not we'll see tomorrow. So in short: nothing has changed other than the guidance now being provided by the government being much more wooly; there's much more scope now for people to abuse those regulations, particularly employers who wish for their staff to come to work as they haven't provided home-working facilities in the past. In my former place of employment - unless things have changed with regards to hardware and setup - many of the secretaries and paralegals will find themselves back in the office as the government has pretty much mandated it. The scope of exercise is now so wide that it's impossible to police, and will prove a go-to excuse for people flouting any kind of guidance.
Has anything changed legally? It appears not, and this is a problem. The law was far too loose as it was, and was never enough to allow the police to get on top of any real issues that could arise. Add to that the inherent contradictions that have run throughout the legislation. It's fine to go to work with 100 other people on a construction site or in an office, who will all go to different households, but you're barred from seeing your parents or children, even when you can maintain physical distance from them. One of those appears to be a far more obvious vector for the disease than the other, yet it is the one being encouraged as of this evening by the government. If the latter is banned, then the former must also be banned.
We will see more tomorrow. It may be that with the publication of additional guidance all will become more clear and more logical. It may also be that the enforcement of what limited regulations there are will be made easier by amending the existing law. What it doesn't disguise is that the existing law was absolutely inadequate - another example of rushed legislation not being up to the task, either by accident or design - and that the revised regulations appear to be contradictory and geared towards money rather than health.
Stay safe. Stay home.
I can't provide those answers yet. I'll probably write something new on the restrictions once I've read the published guidance tomorrow. I already have a few thoughts on that - the main one being 'who on earth other than myself dives into the House of Commons library and Legislation.gov.uk in their free time to find out what they can and can't do?' - but they'll also have to wait for a later time.
The situation is as clear as mud. And, just to add further sediment to the water, I'd like to start at the end.
In his address, Johnson stated that fines for breaching lockdown will be increased. Good. Positive start. For me, the main problem with lockdown has been that it hasn't been properly enforced. At least, the main problem with lockdown that isn't the fact that it has been subtly and gradually loosened through contradictory advice from the government has been that it hasn't been properly enforce. A deterrence through proactive policing isn't a bad thing. It's worked in France and Italy, and it would work here.
The problem is the regulations themselves. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are pretty clear when someone is allowed out of their home. A person may leave their home when:
- Shopping for basic necessities for themselves or the member of a vulnerable household;
- They are obtaining or depositing money witha business specified in a schedule of the Regulations;
- Exercising, either alone or with a member of the same household;
- Seeking medical assistance;
- Providing care to another;
- Donating blood;
- Travelling to or from work (don't get me started on the wording of this as it's accidentally rendered all work outside your place of residence illegal - a classic example of rushjob legislation written by an idiot) or volunteering;
- Attending a funeral of a close family member;
- Fulfilling a legal obligation (such as attendance at court);
- Accessing critical public services such as social services;
- Taking a child to or from the other parent with custody or access when the parents do not live together;
- Going to a place of worship if a minister of that religion;
- Moving house;
- Avoiding injury or illness.
Interestingly, a big deal was made of the restriction on personal exercise when lockdown measures were first introduced. The law itself at no stage makes reference to not being allowed to exercise more than once a day; this was only ever guidance without legal force. And that guidance has been loosened as time has gone on and the government has taken an increasingly populist approach. Neither was there ever a legal restriction on going out elsewhere to exercise, nor a proscription on different types of exercise. You know those people who went for a wander with a picnic in the park? Lawful excuse. Complete idiots, but when the law has been rendered unenforceable by virtue of being thought up by people without a clue, there's no legal recourse.
Also loosened - quietly, without telling anyone - have been the restrictions on freedom of movement outside the home. Again, you may remember there being a big deal made of the main reasons you could leave home. Those haven't changed; in truth, nor have many of the activities listed above. They were always legal; the government just didn't tell you about it. The fact is that the lockdown has, in fact, only ever related to the restriction of business practice with a prescribed list of businesses who may and may not operate.
So what of today's proclamation? Legislation.gov.uk interestingly says that there are no pending amendments to the statutory instrument that manages the lockdown; whether this is true or not we'll see tomorrow. So in short: nothing has changed other than the guidance now being provided by the government being much more wooly; there's much more scope now for people to abuse those regulations, particularly employers who wish for their staff to come to work as they haven't provided home-working facilities in the past. In my former place of employment - unless things have changed with regards to hardware and setup - many of the secretaries and paralegals will find themselves back in the office as the government has pretty much mandated it. The scope of exercise is now so wide that it's impossible to police, and will prove a go-to excuse for people flouting any kind of guidance.
Has anything changed legally? It appears not, and this is a problem. The law was far too loose as it was, and was never enough to allow the police to get on top of any real issues that could arise. Add to that the inherent contradictions that have run throughout the legislation. It's fine to go to work with 100 other people on a construction site or in an office, who will all go to different households, but you're barred from seeing your parents or children, even when you can maintain physical distance from them. One of those appears to be a far more obvious vector for the disease than the other, yet it is the one being encouraged as of this evening by the government. If the latter is banned, then the former must also be banned.
We will see more tomorrow. It may be that with the publication of additional guidance all will become more clear and more logical. It may also be that the enforcement of what limited regulations there are will be made easier by amending the existing law. What it doesn't disguise is that the existing law was absolutely inadequate - another example of rushed legislation not being up to the task, either by accident or design - and that the revised regulations appear to be contradictory and geared towards money rather than health.
Stay safe. Stay home.
Thursday, 7 May 2020
Lockdown: A Mental Health Post
Quick warning before you start: this is highly personal and probably a little confused. It's a sign of the times that I'm seriously struggling to express exactly what's going on. This is a bit of a stream of consciousness, a hopefully cathartic splurge that might help others as well as myself. Whatever happens, and as hard as it is to reach out or make feelings known, we are in this together.
If popular history is to be believed, Shakespeare wrote King Lear in the midst of an outbreak of the plague. While locked down, he turned his incomparable genius to one of his most enduring plays - albeit one where no main characters exit, persued by a bear. It's a parable some in the Twittersphere have put out: 'See, you can be productive in lockdown! Look at this!'
It's nice that some have tried to keep people upbeat and encourage creativity. On the other hand, telling people to measure themselves against one of the great historical literary geniuses is probably not that inspiring. 'Look, you can work on your first touch in lockdown. Even Lionel Messi is managing it!' Yes, and Messi is one of the best footballers ever with what is probably a small estate, while you have a back garden and a patio that needs weeding. Not to mention, you're not as good as him.
At least, that's what the voices say. Being creative in lockdown has been a futile task, made harder by one fundamental fact.
For the past six months I have been suffering from an episode of depression.
It's not been easy to deal with at the best of times. To help, I'm on a course of anti-depressants. It's likely I'll still be on them more than a year from now. I was on them before it became clear that COVID-19 was going to hit Britain, and hit Britain hard. There had been days before then when it was hard to get going, to say the least. When getting up on a morning was the hardest thing I could do.
Thankfully, I do a job to get up for. As stressful as it can be, as much of a workload as it has, as demanding as each day is, I enjoy teaching. There's a reason why I want to be in work for 7, an hour and a half before the school day begins. When I fell into depression, school took on an additional meaning: it was the reason to keep going. Seeing those kids every day, much as they can be the most irritating so-and-sos going, was a reason to get up. On the final day of regular school, some of my year 8s trailed me around when I was on duty to applaud me and say thank you; I can only say the feeling was mutual because they'd kept me going.
Then came lockdown.
I can't say I've struggled more than others although I'm also prepared to acknowledge that it's not an experience I've relished. A combination of medication and a constant, hard training regime have kept my head above water, at least for the moment.
One of the symptoms I've found in depression has been the bone-tiredness that comes from keeping going during the day. It was a symptom at school; constantly putting a face on to the kids was draining, even though I also got energy from the classroom and doing a job I love. By the end of a week I was on the point of collapse.
That same bone-tiredness is present now, but for different reasons. Keeping going, keeping working has needed me to stay disciplined. 8-4 most days, making lists of tasks to complete for school on a daily basis, keeping to a routine during each day. On one hand, it's kept me going. Knowing what I expect of myself and knowing what others expect is a motivator. At the same time, it's exhausting. It's artificial. There's a constant feeling of 'what's the point?' The motivation of seeing 30 kids staring up, wanting to know what's next (or, just as often, how they can avoid work and keeping me on my toes with tasks) just doesn't exist.
Today I started work at 8:55. I completed my list of essential tasks by 11:10. I can't do any more. I'm exhausted; physically from a demanding running regime, mentally and emotionally by a psychological millstone that hits every part of my life. The former keeps the latter in check and has kept me just about functioning.
That isn't to say I'm completely functioning. I was struggling socially before the lockdown. A few weeks before all this kicked off I had to force myself to two friends' wedding. I very nearly didn't go. It was nothing to do with not wanting to be there and celebrate their day. It was entirely to do with the tiredness I felt, and the absolute hopelessness seeping through every thought. Why would they want to see me? Wouldn't I just bring it all down? I left after a couple of hours of the evening do, completely shattered after putting a face on.
Equally, socialising in lockdown is a challenge. I've lost count of the number of times I've picked up a phone to speak to someone but decided against it. I'm too tired, too often, to entertain speaking to someone - at least that's what my conscious reasoning is. The result is an isolation that's deepening and counterproductive.
Truth be told, I am coping. Just. But I'm not coping to an extent where I can entertain the idea of being creative or doing more, for the time being, than the bare minimum that needs to be done to keep going.
Some might question why I've written this. Partly, it's as catharsis. I often feel better after explaining something. When I told my parents I was on anti-depressant medication I felt better than I had in weeks (perhaps helped further by a fantastic performance from Town that night - a 2-1 win against Bristol City that could have been 8 or 9). I've kept a lot of things quiet, either to not bother people or because I don't want people to think any the worse of me, or think that I'm incapable of doing what I need to do. I know that isn't a healthy attitude to have.
*
If popular history is to be believed, Shakespeare wrote King Lear in the midst of an outbreak of the plague. While locked down, he turned his incomparable genius to one of his most enduring plays - albeit one where no main characters exit, persued by a bear. It's a parable some in the Twittersphere have put out: 'See, you can be productive in lockdown! Look at this!'
It's nice that some have tried to keep people upbeat and encourage creativity. On the other hand, telling people to measure themselves against one of the great historical literary geniuses is probably not that inspiring. 'Look, you can work on your first touch in lockdown. Even Lionel Messi is managing it!' Yes, and Messi is one of the best footballers ever with what is probably a small estate, while you have a back garden and a patio that needs weeding. Not to mention, you're not as good as him.
At least, that's what the voices say. Being creative in lockdown has been a futile task, made harder by one fundamental fact.
For the past six months I have been suffering from an episode of depression.
It's not been easy to deal with at the best of times. To help, I'm on a course of anti-depressants. It's likely I'll still be on them more than a year from now. I was on them before it became clear that COVID-19 was going to hit Britain, and hit Britain hard. There had been days before then when it was hard to get going, to say the least. When getting up on a morning was the hardest thing I could do.
Thankfully, I do a job to get up for. As stressful as it can be, as much of a workload as it has, as demanding as each day is, I enjoy teaching. There's a reason why I want to be in work for 7, an hour and a half before the school day begins. When I fell into depression, school took on an additional meaning: it was the reason to keep going. Seeing those kids every day, much as they can be the most irritating so-and-sos going, was a reason to get up. On the final day of regular school, some of my year 8s trailed me around when I was on duty to applaud me and say thank you; I can only say the feeling was mutual because they'd kept me going.
Then came lockdown.
I can't say I've struggled more than others although I'm also prepared to acknowledge that it's not an experience I've relished. A combination of medication and a constant, hard training regime have kept my head above water, at least for the moment.
One of the symptoms I've found in depression has been the bone-tiredness that comes from keeping going during the day. It was a symptom at school; constantly putting a face on to the kids was draining, even though I also got energy from the classroom and doing a job I love. By the end of a week I was on the point of collapse.
That same bone-tiredness is present now, but for different reasons. Keeping going, keeping working has needed me to stay disciplined. 8-4 most days, making lists of tasks to complete for school on a daily basis, keeping to a routine during each day. On one hand, it's kept me going. Knowing what I expect of myself and knowing what others expect is a motivator. At the same time, it's exhausting. It's artificial. There's a constant feeling of 'what's the point?' The motivation of seeing 30 kids staring up, wanting to know what's next (or, just as often, how they can avoid work and keeping me on my toes with tasks) just doesn't exist.
Today I started work at 8:55. I completed my list of essential tasks by 11:10. I can't do any more. I'm exhausted; physically from a demanding running regime, mentally and emotionally by a psychological millstone that hits every part of my life. The former keeps the latter in check and has kept me just about functioning.
That isn't to say I'm completely functioning. I was struggling socially before the lockdown. A few weeks before all this kicked off I had to force myself to two friends' wedding. I very nearly didn't go. It was nothing to do with not wanting to be there and celebrate their day. It was entirely to do with the tiredness I felt, and the absolute hopelessness seeping through every thought. Why would they want to see me? Wouldn't I just bring it all down? I left after a couple of hours of the evening do, completely shattered after putting a face on.
Equally, socialising in lockdown is a challenge. I've lost count of the number of times I've picked up a phone to speak to someone but decided against it. I'm too tired, too often, to entertain speaking to someone - at least that's what my conscious reasoning is. The result is an isolation that's deepening and counterproductive.
Truth be told, I am coping. Just. But I'm not coping to an extent where I can entertain the idea of being creative or doing more, for the time being, than the bare minimum that needs to be done to keep going.
Some might question why I've written this. Partly, it's as catharsis. I often feel better after explaining something. When I told my parents I was on anti-depressant medication I felt better than I had in weeks (perhaps helped further by a fantastic performance from Town that night - a 2-1 win against Bristol City that could have been 8 or 9). I've kept a lot of things quiet, either to not bother people or because I don't want people to think any the worse of me, or think that I'm incapable of doing what I need to do. I know that isn't a healthy attitude to have.
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