Will judge Leveson become one of history’s heroes not for debugging and democratising the British press but his own profession — law and the courts?

This conclusion of a communityaustralia.org.au report http://www.communitylawaustralia.org.au/wp-content/uploads/2012/07/CLA_Report_Final.pdf in 2012 is actually true everywhere in the English-speaking world -- image modified by postgutenberg@gmail.com

The conclusion of a 2012 Community Law Australia report is actually true everywhere in the English-speaking world
— image modified by postgutenberg@gmail.com

[ This is a long post — ‘Many cups of coffee!’ as Manne, a Finnish friend, once warned us in a preface to a letter. ]

We have been surprised to notice that an important but cautiously worded public lecture in London last November by the British judge so far referred to in this spot as Lord Justice Leveson has attracted almost no media attention. Our regular readers will remember that Leveson LJ — now correctly called Sir Brian Leveson, or LevesonP in legal shorthand, after a promotion (see footnote**) — led a government-ordered inquiry into the workings and ethics of the British press nearly five years ago.

Remarks at the start of this exercise by the Lord Chief Justice who appointed Leveson LJ to his inquisitorial post led some of us to hope that, at the inquiry’s end, the judge’s most famous prescription for improving Fourth Estate ethics and objectivity would be to open up journalism to wider public participation. In other words, that he would push for a democratisation of the press as radical as the mass dissemination of knowledge and learning that Johannes Gutenberg’s printing press permitted — not overnight or even in 50 years, but eventually, a point made in our last post.

Exactly why the inquiry failed to yield any such recommendation in spite of the strong nudge from the Lord Chief Justice is unclear. The most interesting possibility is the threat by enraged senior editors and journalists, as well as newspaper proprietors, to turn the tables and demand an equally alarming and humiliating investigation of lawyers and the legal establishment. In the lingering press anger about the judicial probe in 2013, one columnist, (Sir**) Simon Jenkins — a former editor of The Times and The Economistbarked that ‘Lawyers should stick to the law.’ One year earlier, as the Leveson hearings were in full, addictive sway, he noted that ‘Judges consider themselves institutionally beyond correction,’ adding delectably, ‘As for the fee-fiddling, court-delaying, job-sharing, ambulance-chasing antics of the legal profession, you will wait for Doomsday for a judge-led inquiry into that.’

Well, LevesonP might yet rise to the Jenkins challenge. On 12 November, speaking about the early stages of ‘substantial reform’ to ‘secure an efficient and effective justice system … fit for the 21st century,’ Sir Brian said that ‘Information technology is likely to provide the means by which we can do so.’ He spoke of a future with more frequent resolutions of legal disputes ‘other than by trial’; of ‘the development of an online court’; and of an ‘IT dependant system through which the courts can manage disputes so that they can be resolved appropriately.’

Ah. Appropriately. A careful, neutral word chosen by a supremely cautious justice, a signal understatement of the death blows that digitisation and sweeping procedural changes could deal the anciently entrenched customs and culture of lawyers and the legal system. The effects of these transformations, not just in Britain, will fall mainly into two wide, linked categories:

LAWYER-FREE LITIGATION

The richest countries in the English-speaking world have in common the lamentation encapsulated in Australia with the graphic above highlighting the dismaying fact recorded by Community Law Australia that ‘Repeated government and Parliamentary inquiries over the past decade have recognised that the legal system is out of reach for many Australians.’ That is stunning in a country whose people rank as the world’s wealthiest, or nearly so; a country famous for its militantly egalitarian ‘tall poppy syndrome’ culture, and surpassed only by the US in the availability of lawyers (357 vs. 391 per 100,00 people in the late ‘00s, according to a 2010 Harvard Law School study).

As for the US, in a joint contribution to The New York Times in 2010 titled ‘A Nation of Do-It-Yourself Lawyers,’ the chief justices of California — the US state with the world’s largest court system — and New Hampshire invited ‘members of the legal profession to join with us [in] making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them.’

The legal profession’s incandescent reaction — across the globe — to all such proposals has been put bluntly by an antipodean judge at the highest tier, Deputy Chief Justice Faulks of the Family Court of Australia, who does not consider it a response to be condoned or indulged:

Most judges tend to couple the word self-represented litigant (SRL) with an expletive. It is customary to regard them as difficult, time-consuming, unreasonable, and ignorant of processes of the law. … [C]ourts should regard self-representation by litigants as a challenge rather than as a problem. … Self-representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. This means that courts are no longer dealing with a minority aberration but are being obliged to contend with change which may require altering the way in which courts operate.

TRANSPARENCY: LETTING THE PUBLIC SEE WHAT REALLY HAPPENS IN LITIGATION

Idealistic and naïve non-lawyers, litigation virgins who have always thought of trials and court procedures as instruments for uncovering the truth in any legal battle, are in for a rude shock when they get enmeshed in an actual case. Honest judges will explain that a trial is not a quest for truth. Why is this a fact of which even highly educated people are mostly ignorant? Most litigation, especially civil litigation — which has no celebrity murderers or Scott Turow thrillers about corrupt judges to supply education-by-entertainment — happens in the dark, out of public view. No stranger to the process has any conception of the brutal details of how legal action commonly amounts to the licensed bullying of those with less money by those with more — or is capable of grasping the near-universal truth of what Chief Justice Faulks has said, with a symbolic illustration from Australian court procedure:

The legal profession is one which guards its turf jealously. To an SRL, being in a court room feels somewhat like being in an old-boys’ club where members of the club are speaking to each other in a strange language known only to them, where the members know each other quite well and are disparaging and discouraging of interlopers. … Most judges prefer to have a triangle of dialogue that involves a judge and two lawyers, preferably counsel, at the Bar table. In my opinion this is a perpetuation of the “old boys club”-like environment associated with litigation. … [I]f courts remind themselves that access to justice requires that it should be to all “without fear or favour, affection or ill-will” then it follows that we should place all of our processes, language, practices and assistance under the microscope of that access to justice

Simon Jenkins’ counterattack on lawyers and judges in the UK arose from fears about the endangerment — implicit in the inquiry’s remit — of the independence of the Fourth Estate; of its special privileges; and of its ability to restrict membership. In his Guardian column two months ago about technology forcing all professions to kneel before the transformation of their work by the internet — mostly, by demystifying their expertise and supplying open access to their tools and knowledge — he quoted Bernard Shaw’s trenchant take on the professions as ‘conspiracies against the laity’.

Doctors and lawyers were the chief focus of his commentary, which strangely made no mention of the need for traditional journalism to adapt to the arrival of ‘citizen journalists’ or ‘citizen bloggers’. Whether the recommendations of the Leveson Inquiry have had or will in the future have any significant role at all in reshaping press practices is impossible to tell from our perch seven thousand miles away. The scant coverage of this subject by the British press is contradictory with, for instance, the Daily Mail implying last month that proceeding with the second stage of what was set as a two-part investigation would be an even bigger waste of resources, whereas the Independent drew attention to the new press watchdog to which the Inquiry gave birth, and said that it ‘has started to show its teeth’.

A LevesonP who sets an example with a more vigorous mucking-out of his own profession — which happens to be the one most successfully insulated from change — will be a judge for the ages. He certainly seems to have grasped the unfairness of a profession least affected, so far, by the digital juggernaut, imposing more revolutionary change on one so battered by internet publishing’s destruction of its economic viability that the most representative image of its state would be a stage strewn with corpses from which just a survivor or two limps away, in the final act of a tragedy.

Richard Susskind, the British judiciary’s principal adviser on digitisation for nearly 18 years, has been pegged by the American Bar Association as ‘far and away the best analyst and predictor of the evolution of the legal marketplace.’ His slender book, Tomorrow’s Lawyers, a model of concision, is gripping essential reading with a well-earned conclusion:

[T]he law is no more there to provide a living for lawyers than ill health exists to offer a livelihood for doctors. … [T]here is an opportunity to be involved in shaping the next generation of legal services. You will find most senior lawyers to be of little guidance in this quest. Your elders will tend to be cautious, protective, and conservative, if not reactionary. They will resist change … In truth, you are on your own. I urge you to forge new paths for the law, our most important social institution.

**In an exception to our usual practice of ignoring titles awarded in Britain’s honours system — in a blog written outside any national boundaries — we refer to him in this post as Sir Brian Leveson, though it was as Lord Justice Leveson that he supervised the hauling over the coals of some newspaper proprietors and editors who were undoubtedly burning him in effigy, out of sight, in revenge. We used that title in our posts about the Leveson Inquiry because it was not a so-called gong or decoration, but part of his job description. Though peers (‘Lord’) rank higher than knights (‘Sir’) in the hierarchy of honours, Sir Brian has not been demoted, since then: he was a Lord Justice simply because that is what judges of the Court of Appeal are called.

Explaining the reasons for that would call for an even lengthier exposition than if we were to try to explain why, since his elevation from that position to his new job as president of the Queen’s Bench Division of the High Court of Justice, or Britain’s third most senior judge, he wears a black gown with a ‘short wig’ to hear criminal cases, but a ‘full wig’ on ceremonial occasions — when justices at the very top of the top, in the UK Supreme Court created just ten years ago, do not usually appear in gowns or wigs, but on ceremonial occasions, wear gowns but no wigs. (Impossible! you say? See the Wikipedia entries for Judiciary of England and Wales and Judiciaries of the United Kingdom.)

We are following law reporting practice when we refer to LevesonP, for shorthand.

Will this April Fool’s Year of canonising whistleblowers, any whistleblower, never end?

Whipped, if not quite dead: the putative whistleblower’s surveillance story -- with legs  -- ‘Horse and groom,’ 15th-century, Turkish Miniatures, Mentor-UNESCO, 1965

Whipped, if not quite dead: the surveillance story — with legs
— ‘Horse and groom,’ 15th-c., Turkish Miniatures, Mentor-UNESCO, 1965

Might the back-to-front spy story fingering government spooks rather than the villains subjecting us to the ‘surveillance business model’ be the longest-running April Fool’s wheeze in history?

Simon Jenkins in The Guardian, 27 march 2014:

Whistleblowers are not always right, let alone easy companions, but then nor were saints. Few can be saved from a degree of martyrdom. But we can at least canonise them as saints rather than persecute them as devils.

Surely that is a wickedly batty, not to mention irresponsible, suggestion — unless or until we are sure that any particular whistleblower is tooting for our collective benefit, not merely as a rebel in search of a cause? Anyone reading the closing paragraph of the Jenkins column would have proof that Spiked Online was hardly going overboard, last summer, when its editor, Brendan O’Neill, suggested …

Let’s call a halt to the worship of whistleblowers

11 June 2013

The cult of the whistleblower is getting out of hand

In 24 hours, Edward Snowden has gone from being a former contract worker at America’s National Security Agency to a godlike figure who has apparently ‘saved us’ from ‘the United Stasi of America’. It’s the religious terminology that is most striking. For leaking info about how the NSA keeps tabs on the communications of both American and foreign citizens, Snowden has been referred to not only as a saviour but also as a ‘martyr’. He’s praised for revealing to us, the sleeping ones, ‘the truth’ about our world. Journalists fawn over the ‘earth-shaking magnitude of the truth’ he has revealed. His own codename in his dealings with hacks was Verax, Latin for ‘one who tells the truth’ and a recurring word in the writings of old-world Catholic scholars on the lives of the saints and seers. If Snowden possesses Christ’s capacity for ‘saving’ people, he lacks His humility.

 As befits a modern-day teller of the truth, Snowden has been turned into an overnight icon by the guardians of liberal values. The Guardian itself plastered his picture across its front page yesterday, even taking the very unusual step of moving its own masthead down and replacing it with the words: ‘The whistleblower.’ This wasn’t news reporting; it was a secular beatification, an invitation to readers to look into the eyes of St Snowden, the latest in a line of brave revealers of liberal gospel, who, according to one Guardian columnist, has carried out ‘extraordinary human acts’ and showed ‘an endless willing to self-sacrifice’ – just like You Know Who. The creepy Jesus allusions are even more apparent in the Twittersphere, where Snowden is referred to as saviour, martyr, even ‘libertarian messiah’.

 The speedy beatification of Snowden reveals a great deal about the increasingly irrational worshipping of the whistleblower. Primarily, the cult of the whistleblower speaks to the profound passivity and deep moral lassitude of both modern journalism and radical politics …

Just as we are — as in recommending, two entries ago, a Laziest Journalism Ever award for the shrill, over-amplified Snowden coverage — Spiked’s O’Neill has been horrified by what it says about the state of the craft of journalism:

[J]ournalism … seems to have transformed itself into a passive receiver of ‘truth’ rather than active seeker of stories. Journalists are increasingly reliant upon sneaked-out information from the citadels of power. This is bad for so many reasons: because journalists lose their dirt-digging drive and instead become grateful recipients of discs or graphs from disgruntled individuals; because it redefines ‘the truth’ to mean something graciously given to us by those in the know, rather than something we shape through the very act of seeking it, of analysing and understanding what we have found out; and because it inevitably nurtures shoddy, rushed, ill-thought-through journalism. Indeed, some of the claims about the NSA are now being called into question, which suggests that getting mere info from one man is no substitute for spending a long time looking for a story, and then discussing it, checking it, contextualising it, and making it something bigger than simply, ‘Look at what was whispered in my ear….’.

… This is, admittedly, a somewhat lazy entry on the blog. We have too much to say, on a very different subject – and are waiting for all that to settle and simmer down to manageable proportions before we return.

Which is worse: fantasy presented as fact by a high-ranking veteran journalist — or by film-makers not in the documentary business?

Third view of 'The Mysterious Baths,' Giorgio De Chirico (see the last two posts)Photograph by MIL22

Third view of ‘The Mysterious Baths,’ Giorgio De Chirico (see the last two posts)
Photograph by MIL22

Surrealism. Surely, the art movement for our time.

What other tradition in image-making supplies better backdrops for recent events in — say, the dance between media and human life?

On that subject, we are making quick notes about what we know we will find impossible to believe without them, at some future date:

Item 1: a well-known columnist and ex-editor, Simon Jenkins, howls in outrage about facts twisted to heighten the drama in two feature films inspired by recent history.

His opinion on the subject matters. He has been chosen as a special adviser on decisions related to future press regulation, the focus of governmental negotiations with newspapers in the wake of the Leveson Inquiry. This is an appointment that, for reasons deducible below, amounts to giving the machine-wrecking Ned Ludd of Luddite fame a job as factory foreman.

Simon says, about two new films, Argo, whose subject is the escape of U.S. diplomats from Iran in 1979, and Zero Dark Five, a dramatisation of the military operation that killed Osama bin Laden:

Makers of films captioned as “true stories” claim either that fabrications do not matter as they are “just making movies”, or that they are justified in a higher cause. Yet they can hardly be both. Cinema in my view is the defining cultural form of the age. It deserves to be taken seriously, and therefore to be criticised for shortcomings. If the most celebrated of “docudramas”, Spielberg’s Schindler’s List, could go to lengths to authenticate its storyline, why should not any film claiming truth to history?

This is an intrinsically odd objection. The tradition of pretending to tell the truth in the service of art goes back as far as the book considered by some authorities to be the first novel, in the West, Don Quixote (originally, The Ingenious Gentleman Don Quixote of La Mancha; 1605). Miguel de Cervantes, the author, pretended to be merely the translator of an actual historical record of Quixote’s adventures by a Moorish scribe, Cide Hamete Benengeli. The exhausting true title of the book most of us know as Robinson Crusoe (1719) is The Life and Strange Surprising Adventures of Robinson Crusoe, of York, Mariner: Who lived Eight and Twenty Years, all alone in an uninhabited Island on the Coast of America, near the Mouth of the Great River of Oroonoque; Having been cast on Shore by Shipwreck, wherein all the Men perished but himself. With An Account how he was delivered by Pirates.

A delightful essay about Daniel Defoe’s winking invention of Crusoe — unrelated to the subject of this blog — appeared in The Wall Street Journal a few days ago. It describes critics complaining about Defoe ‘going too far in in creating the novel’s solid sense of actuality’. But that is irrelevant to its status in posterity. The essayist, Danny Heitman, is hardly isolated in declaring that ‘the book’s most abiding message is its affirmation of literature itself.’

Item 2: the same journalist, Simon Jenkins, foists a bizarre reality-distortion field on readers every time he writes about internet culture and our increasingly computer-permeated lives.

Against ever-longer odds, he strains to persuade us in elegant prose that we are well on our way to post-digital life. Is he joking? Apparently not, as he goes to pains to present curious factoids for substantiation — for instance, these:

A mild sensation was created this summer by the revelation that Google, Apple and Yahoo executives were sending their children to California’s Waldorf schools, where computers are banned. The masters of the e-universe appear convinced that computers “reduce attention spans and inhibit creative thinking, movement and human interaction”. Classes have reverted to using blackboards, chalk, pens, paper, books and even teachers.

Post-digital is not anti-digital. It extends digital into the beyond. The web becomes not a destination in itself but a route map to somewhere real.

Really? How many children were involved in this trend supposedly sweeping Silicon Valley? An inconsequential sub-fraction — according to one blogger’s good humoured evisceration of the non-evidence in an excellent post on Papyrus News about the rather less overblown report in The New York Times on which Simon was apparently leaning:

The article [mentions] four Silicon Valley firms: Google, Apple, Yahoo, and Hewlett Packard. Between them, those firms have tens of thousands of employees, with tens of thousands of children. A total of 294 children go to the Waldorf School (not all of whose parents work in high-tech industries). Does that mean that 99% of employees in high-tech firms believe that computers do have a role in education?

Nowhere are classrooms ‘reverting’ to chalk and blackboards. In the very week in which Simon wrote his screed, the most-discussed news in education was the explosion in disembodied learning through online courses offered by universities like Stanford and internet tutoring in maths and science for school children.

Nor has he yet produced a single convincing argument or anything resembling a fact to support his prediction of a transition to ‘post-digital’ existence — now mentioned by him in at least three columns.

In 2009, he announced — and was congratulated by several naive commenters for his revelation — that there was a reason why ‘the ghost of Gutenberg’ was about to ‘die laughing.’ And why was that? According to Simon, a new venture was downloading text from the internet and selling on the streets of San Francisco a publication called The Printed Blog. Lo! he crowed triumphantly, ‘[F]or the Jeremiahs who tell me that I and my medium are doomed to litter the fish-shop gutter, I have news. . .’.

If nothing was heard of this thundering victory before he wrote his column or since, it is because there never was any such publishing exercise in San Francisco. You might imagine that either he or his editors should have discovered that themselves — simply by checking, a basic act in journalism — for the column grandly titled ‘Old is new. Even Gutenberg’s ghost has returned to live in Silicon Valley.’ (N.B.: a detail: San Francisco is not and never has been considered a part of the cradle of high technology.)

Yet, last weekend, there was Simon himself playing scolding schoolmaster,

Fiction may be free and facts expensive, but film-makers are not short of researchers. Commentators may be accused of choosing facts to prove their opinions – plague the thought – but that is different from falsification. Nor do they excuse lies as higher truth. The licence to report carries responsibilities.

Well. Erm … yes.

Item 3: a judge cites the fictional spy James Bond’s wide renown to justify a real-life decision unfavourable to chiefly female petitioners treated by undercover police as sexual prey. Some of these policemen had children by the women, even five-year relationships with them, then disappeared without a trace.

In a column last week, Jonathan Freedland recorded with fully-warranted fury that

Mr Justice Tugendhat […] ruled on whether a case brought by 10 women and one man duped into fraudulent relationships by undercover police officers should be heard in open court or in a secret tribunal.

The decision hinged on whether the law governing agents of the state allows them to form sexual relationships with those they spy upon. The good judge believes that when MPs wrote the Regulation of Investigatory Powers Act (Ripa) in 2000, permitting undercover police to form “personal or other” relationships, they must have meant it to include sexual relationships. After all, the legislators were bound to have had one particular secret agent in mind. “James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women,” Tugendhat declared, lending “credence to the view that the intelligence and police services have for many years deployed both men and women officers to form personal relationships of an intimate sexual nature”.

[…]

Those involved tell of deep and genuine attachments, the men integrated into their lives as partners, living together, travelling together, attending family gatherings, sitting at a parent’s bedside, even attending a funeral.

[…]

[T]his was the hacking of people’s lives, burrowing into the most intimate spaces of the heart in order to do a job, all authorised by the police. It is state-sanctioned emotional abuse …

Such horror was nearly as hard to believe as Simon Jenkins’s assertions that print was on its way to re-capturing eyeballs lost to screens, or that computers were on their way out of education — only it was actually inflicted on real people.

Item 4: a teacher of the storyteller’s art complained in The New York Times, a fortnight ago, that most of his students were no longer capable of constructing narrative fiction that made sense of the world.

That will hardly surprise any reader who has reached this paragraph of our post. The teacher, Steve Almond — whose splendid essay deserves to be read in full said, in part:

About 10 years ago, in creative-writing classes I was teaching, I began to encounter a particular species of student story. The hero was an unshaven man who woke in a strange room with no idea where he was or why. Invariably, something traumatic had happened to him, though he didn’t know exactly what. The rest of the story sought to reconstruct his arrival in these dire circumstances, via scenes that had been chronologically mutilated for maximum profundity.

My standard reaction to such pieces was to jot earnestly flummoxed queries in the margins like “Where are we?” and “Is it possible I’m missing a page?”

[…]

The underlying … question is whether the story of our species — the greater human narrative — has simply become too enormous, too confused and terrifying, for us to grapple with. This might explain why so many of us now rely on a cacophony of unreliable narrators to shape our view of the world and ourselves …

… So, to summarise these jottings in reverse order: people whose job is to tell stories have given up on trying to make sense; judges justify police mistreatment of citizens, citing figments of a novelist’s imagination as proof of societal sanction for it; a journalist prone to presenting wild invention as fact admonishes spinners of screen fantasies for not doing what is supposed to be his job — strict adherence to the truth.

There is an ancient Hindu conception of the world as all-maya — which means, illusion.

There was a time, not long ago, when it was hard to understand.