June 29 2020

The right to a jury trial has been described, most recently this May, as “a fundamental right. It goes back centuries in our history, and it will never be removed at all.” (For the U.K. government’s latest proposals attacking this right and why they are not a good idea see here.)

Despite this, juries have not always been loved, especially by some in the legal establishment, including some judges, those who think that the law is far too important and complicated an issue for ordinary persons, who are simply not clever enough to understand. It uses the complexity beloved by lawyers to justify keeping the whole process within this charmed, closed circle, a legal elite. It is an argument often heard in relation to fraud trials, conveniently forgetting that sniffing out dishonesty does not need a degree, that it is often some of the apparently cleverest people – formally anyway – who fall for some of the biggest conmen around.

If you need convincing, look no further than the story of Wirecard, summarised by the Financial Times here.  It is a cautionary tale, one we have seen before, time and again. Remember Enron?Or Polly Peck? Or Theranos? It makes it all the more baffling why clever people fall for it over and over again.

The essential elements are usually the same:-

• A new, often disruptive, entrant into the market or the repackaging of a boring staid company.
• A charismatic CEO with ambitious expansion plans, an attractive story to tell and a talent for PR.
• A novel way of providing a basic service, presented as a simplification, and which could be categorised into the “too good to be true” category. No-one is able to explain why, if it is so simple, others have not done this.
• The use of some wonderful new technology. Everyone wants to be associated with this, even if the number of people keen on it is vastly greater than those who really understand it.
• The use of complicated corporate structures and inter-company transactions, often in a variety of offshore jurisdictions, making scrutiny of the individual transactions and the company’s overall position much more difficult.
• When critical or difficult questions are raised, responding aggressively with action from lawyers and PR specialists. Protection of reputation is apparently more important than responding to the substance of any criticism.
• Rapid high growth, sustained year after year.
• Becoming the latest “darling” of the stock market, investors and governments.

In all these cases, any number of highly expert advisors: analysts, accountants, auditors, bankers, lawyers and others seemed oblivious to what was going on. Did they choose to turn a blind eye? Or were their critical faculties simply dazzled by the fees to be earned?

What is perhaps different – and troubling – about the Wirecard story is the way regulators, in this case, the BaFin, seem to have abandoned its critical faculties, its willingness to probe behind the facade (surely an essential task for any regulator) and the need to listen to those voices who raised questions (from as far back as 2008) about the company.

Worse: not only did the BaFin not listen to those voices (investors, hedge funds, whistleblowers and journalists), it tried to take action against them, to shut them down, to prosecute them. The regulator abandoned its role as a disinterested supervisor and acted as if its interests were no different than that of the company.

How could so many apparently clever people be taken in? For the oldest reason of all: they believed what they wanted to be true, what they hoped was true. They formed an opinion then ignored any facts that did not fit. They ignored troubling messages or concerns because they came from the “wrong” sort of people: hedge funds and short sellers (boo! hiss!), foreign journalists doing down a national champion (double boo!) and so on. Shooting the messenger is so much easier than listening to an uncomfortable message.

Clever people are not immune from making these basic mistakes. Being clever does not necessarily make you clear-sighted. It does not necessarily make you courageous. Nor does it automatically make you curious.

There is an inestimable value in having an ordinary person’s view, in having people prepared to ask obvious, even stupid questions, in benefiting from the collective experiences, perspectives and opinions of a random group of 12 strangers, the wisdom of a small crowd, unencumbered by the sort of “groupthink” which can afflict those working closely together with the same types of people with largely similar perspectives.

Remember this when the lack of expertise of jurors is cited as a reason why they should not be involved in fraud trials. If expert and experienced people are so easily taken in, perhaps that expertise is not that valuable at assessing dishonesty and bluster and spin. If experts fail to ask obvious questions or fail to follow up on concerns raised, what value – really – does their expertise have?

Photo by Jon Tyson on Unsplash

May 31 2020

One day an acquaintance ran up to him excitedly and said, “Socrates, do you know what I just heard about Diogenes?”

“Wait a moment,” Socrates replied, “Before you tell me I’d like you to pass a little test. It’s called the Triple Filter Test.“

“Triple filter?” asked the acquaintance.

“That’s right,” Socrates continued. “Before you talk to me about Diogenes, let’s take a moment to filter what you’re going to say. The first filter is Truth. Have you made absolutely sure that what you are about to tell me is true?“

“No,” the man said, “Actually I just heard about it.“

“All right,” said Socrates. “So you don’t really know if it’s true or not. Now let’s try the second filter, the filter of Goodness. Is what you are about to tell me about Diogenes something good?“

“No, on the contrary…“

“So,” Socrates continued, “You want to tell me something about Diogenes that may be bad, even though you’re not certain it’s true?“

February 14 2020

In March 2017 PC Keith Palmer was killed while defending Parliament from a terrorist. In August 2019 PC Andrew Harper was killed while investigating a suspected burglary. These are only 2 of the 50 police officers killed between 1990-2010. Few of us face the risks ordinary police officers run. This does not excuse what is set out below. It does explain why it is so necessary, if their work and sacrifices are to be worthwhile and the public gets the policing it is entitled to, that the issues raised below be properly addressed.

What follows is not a comprehensive list of every scandal affecting the police. But it is an overview of their range over five decades.

1. 1972-1977: Sir Robert Mark’s campaign to root out corrupt officers within the Flying Squad and CID, resulting in more than 500 officers being dismissed or “resigned”. He memorably stated: “a good police force is one that catches more crooks than it employs”.
2. 1974-1989: The West Midlands Serious Crime Squad – eventually wound up after allegations of incompetence, malpractice and abuse of power, leading to over 100 cases collapsing or being overturned on appeal. An investigation into its activities led to some disciplinary action but no prosecutions, a decision for which the DPP (Barbara Mills) was severely criticised.
3. 1970’s: The activities of various police forces in the Irish miscarriage of justice cases – the Guildford Four (1974), the Birmingham Six (1975), the Maguire Seven (1976).
4. 1978-1982: Operation Countryman – an investigation into corruption within the Met and City of London Police in the late 1970’s. Information was released in 2018 about efforts made by the Met and the DPP (Sir Thomas Hetherington) to cover up the scale of wrongdoing and obstruct the investigation by the Hampshire and Dorset police.
5. 1979: The death of Blair Peach during an Anti-Nazi League demonstration against the National Front in Southall. In 2010 a police report stated it was likely that a Metropolitan Police officer “struck the fatal blow” and attributed “grave suspicion” to one unnamed officer, who may also have been involved in a cover-up with two colleagues.
6. 1981: Operation Swamp, the subsequent Brixton riots and the Scarman report into how the police used their “stop and search” and other powers.  Numerous recommendations were made.
7. 1980’s – 2010: South Yorkshire Police’s failures in the Rotherham child exploitation scandal. The Jay Report described how the police failed to investigate adequately or at all the reports they were receiving over at least a decade of child sexual grooming.
8. 1989: The Hillsborough stadium tragedy. Two reports – the 1990 Taylor Report and the 2012 report by the Independent Panel – described the extent of South Yorkshire Police’s negligence, attempts to shift blame on others and pervert the course of justice.
9. 1993: The investigation into Stephen Lawrence’s murder and the resulting 1999 Macpherson Inquiry which found that many Scarman recommendations had not been implemented. Macpherson, unlike Scarman,  described the police as “institutionally racist”. Subsequently it was revealed the police had spied on the Lawrence family.
10. 2003-2020: The failures of the Greater Manchester Police in relation to Operation Augusta and child sexual exploitation, described in the Newsam report published this week. The report’s statement that: “The authorities knew many were being subjected to the most profound abuse and exploitation but did not protect them from the perpetrators. This is a depressingly familiar picture and has been seen in many other towns and cities across the country.” could apply to a number of places and police forces round the country.
11. 2006-2011: Allegations were made during the News International inquiry that the police were selling confidential information to journalists. This was to be looked at in the second stage of the Leveson Inquiry which never went ahead.
12. 2009: The death of newspaper seller, Ian Tomlinson, as a result of police assault during G-20 summit  protests.
13. 2011:  It’s revealed that various undercover policemen had infiltrated environmental groups for a number of years, entering into deceitful relationships with activists and fathering children. In 2015 the Met apologized to women “tricked into relationships” over 25 years, closed the units and made financial settlements of circa £3 million. An “Undercover Policing Inquiry” into “appalling practices” in undercover policing was set up. It has yet to report.
14. 2012 onwards: Cleveland Police has 5 Chief Constables in 6 years, the first in this list being dismissed for deceit and misconduct. In 2019 it is put into special measures following an independent report describing it as “inadequate” in all fields, “directionless, rudderless and clueless”, “putting the public at risk” with some officers “not acting with honesty, integrity and competence“.
15. 2014: Operation Midland into child abuse allegations made by Carl Beech against politicians and others is launched. In 2019 following his conviction on multiple counts of perverting the course of justice, the Henriques Report identifies extensive failings in the original investigation.
16. 2015: Police Scotland are criticised by a judge for breaching data privacy laws and the ECHR when spying on journalists and their communications with their sources. Similar breaches were committed by Cleveland Police.
17. 2018: The Met’s anti-corruption unit is under investigation for corruption in relation to allegations of assault, racism, child abuse and child grooming.
18. 2018: Cliff Richard is paid £400,000 by the South Yorkshire Police for its behaviour over the raid on his home in relation to historic child sex abuse allegations, including informing the BBC about the raid.
19. 2005 to date: there have been 4 Metropolitan Police Commissioners. Ian Blair resigned after falling out with the London Mayor; his successor resigned because of his links with one of the journalists implicated in phone hacking; Hogan-Howe lasted 6 years. Under his leadership Operation Midland is set up and people arrested under Operation Yewtree and bailed for lengthy periods without charge, a practice later banned. His replacement in 2017 is Cressida Dick, the senior policewoman in charge when a blameless electrician was killed in 2005 following terror attacks.
20. 2020: The Met refers itself to the police watchdog for its failure to act on recommendations made by Sir Richard Henriques to investigate two others for perverting the course of justice in relation to abuse allegations arising from Operation Midland.
21. 2020: A review led by a former Met Police Commissioner states that the police are unable to deal with a huge increase in fraud cases.
22. 2020: This month a report by HMICFRS on all 43 police forces states that the public has lost faith, having “rumbled” that the police are unable to investigate most crimes. The charging rate in the year to March 2019 fell to 7.8% of all reported crimes in England and Wales.

It is a dismal list. It could be twice as long.

To a financial investigator, this picture is very familiar. Despite innumerable inquiries, changes in the law, disciplinary proceedings, recommendations, new procedures, training, apologies, compensation paid, some prosecutions and that perennial favourite – “lessons have been learnt” – bad, criminal behaviour (which all the people doing it would clearly have known was wrong) and incompetence have repeatedly occurred in forces all over the country over decades. Not one or two “rotten apples”; whole orchards of them. There has been a culture of poor leadership, cover-up or the truth only coming out many years later and of other key agencies turning a blind eye, aiding and abetting or failing to set or demand high standards of probity and professionalism.

Above all, there has been a failure to ask why such problems keep on happening, despite all the remedial steps taken and all the apparent learning of all those lessons.

It is irrelevant that there are many policemen, possibly even the majority, who don’t behave in this way. The same could be said of banking. The professionalism, hard work and good name of the honest good guys are tarnished by the bad, useless ones. The bad drive out – and demoralise – the good.

Policing depends on consent. Trust is essential to that consent. Scandals and incompetence erode that trust. How can our cherished system of policing work then?

Perhaps – like banking – it is time to realise that there is something systemic and deep-rooted and toxic in police culture which allows or encourages or does not stop officers from behaving badly. Perhaps – like banking – it is time to make the hard cultural changes needed if training and rules are to work. Perhaps – unlike banking – it is time for senior leaders to take real responsibility not merely talk about it. Perhaps – like banking – it is time to realise that even successful or vital sectors or professions can in reality be really rather more second-rate than we like to pretend. Perhaps we should stop deluding ourselves that our key institutions are as good as we sometimes rather vaingloriously claim. The police are not the only body of which this could be said, of course.

Law and order are the most basic functions of the state. But the police should not be treated as a sacred cow. A comprehensive, dispassionate and ruthless look at how the police operate and real tough action to change it for the better are needed.

What are the chances?