Paedophile Hunters

I recently wrote an essay (submitted in December; published in June) for the Lincoln’s Inn Student Law Journal, which starts at page 14. It’s about the increasing pursuit of suspected paedophiles by vigilantes. From a legal perspective it’s a vexing problem with boundary questions concerning common law, ECHR rights and statute. It’s also a challenging issue for law-enforcement and policymakers. So-called ‘paedophile hunter’ groups are usually unpleasant obsessives who can jeopardise police investigations; but they also identify a large number of sex offenders (who would otherwise be missed) by spending endless hours sleuthing online under child aliases. Therefore, I argue, it is better to manage rather than prohibit PH groups by licensing their activities and refusing to prosecute targets of unlicensed PH activity.

The Supreme Court has for the first time considered the lawfulness of PH groups in the Scottish case of Sutherland [2020] UKSC 32. In a judgment published on Wednesday the court considered only the issue of ECHR compatibility. In particular, is the Article 8 right to a private life infringed by the state’s use in prosecution of messages sent by the defendant to the PH decoy on bilateral messaging Apps? The Article 8 issue has some of the same contours as the common-law entrapment issue, the focus of my essay, in particular holding the state to a higher standard of probity in the procurement of evidence than a ‘non-state’ agent.

Lord Sales for the unanimous court held that Sutherland’s Article 8 rights were not fatal to his prosecution. His activity said to be protected under Article 8 was not “capable of respect within the scheme of values which the ECHR exists to protect and promote” [46]. Nor did the appellant have a reasonable expectation that the recipient of his messages on Grindr, and later on WhatsApp, would keep them private given their criminal content [58].

Even if the communication was prima facie protected under Article 8(1), its infringement would have been justified under Article 8(2) “as a measure proportionate to promoting the legitimate objectives of the prevention of disorder or crime and the protection of the rights and freedoms of others” [70] so long as there was no breach of the Article 6 right to a fair trial [71], a question where the state/non-state distinction also holds to the benefit of PH groups (contrast Shannon [2004] with Teixera [1999]page 17).

Consulting my crystal ball, my guess is that the PH problem – and it is a problem, as the quotes and figures cited here illustrate – will be addressed by Parliament before the courts. If not, one must concede that the effect of Sutherland is to kill the Article 8 claim. Alternatively it is possible to imagine a successful claim through Article 6 or common-law entrapment. But that will succeed if, and perhaps only if, the court recognises the significance of modern PH activity. They are not occasional interlopers for whom the target’s prosecution is a secondary or incidental result. Rather they operate on a scale that has overshadowed official investigations and won the tacit approval of police and prosecuting authorities, whatever the latter’s statements to the contrary.

Say Nothing by Patrick Radden Keefe

For a group with an alarming tendency to kill people by accident, the IRA had an elaborate internal mechanism for determining whether to kill people on purpose.

Say Nothing (2018) is a deeply-reported, arresting book about some of the people the IRA killed ‘on purpose’. It’s also about much more than that. Several of those disappeared by the IRA were found after an oral history of The Troubles compiled by Boston College in Massachusetts came to light. Former partisans who’d given interviews for the project had understood that the descriptions they gave of their grisly careers would remain sealed until death. They didn’t.

The author, as his name suggests, belongs to the Irish-American community and that may explain why, as an outsider, he was able to surmount the access problem of reporting in Northern Ireland. That said, Radden Keefe says he never identified particularly strongly with his Irish heritage nor was even that interested in the conflict until he read an obituary of Dolours Price, whose face graces the book’s cover, in 2013. His account is admirably even-handed.

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Dolours Price was one of several terrorists arrested in the immediate aftermath of the 1973 London bombings, which targeted the Old Bailey and other locations. Her sister Marian was also involved and, unlike Dolours, remained committed to violence into old age. In addition to audacious attacks on the British mainland, through the 1970s the sisters belonged to a secretive internal IRA unit that identified and eliminated informers. Among their duties were driving suspected informers across the border to meet their executioners.

One revelation in the book concerns the role of Marian, who is still alive, in the murder of one suspected informer who almost certainly was misidentified as such, mother-of-10 Jean McConville. Dolours had admitted her role as an accessory but always refused to reveal the killer. Gerry Adams is also fingered in the Boston College tapes by Brendan Hughes, a former close associate, as ordering the killing. As a peace figure years later, as the issue of the disappearances became salient, Adams irked former colleagues by publicly sympathising with the family.

To Brendan Hughes, it was appalling that Adams would go to Jean McConville’s children and pledge to get to the bottom of what had happened to their mother, as though it were some great mystery to him. “He went to this family’s house and promised an investigation into the woman’s disappearance,” Hughes [said in the tape]. “The man that gave the fucking order for that woman to be executed!”

Above all, the strength of Say Nothing lies in it doing far more than investigating murder mysteries. It is a sensitive re-examination of the period told with an insider’s knowledge and an outsider’s dispassionate perspective. It shows just how committed both sides were to their version of the province’s future. The British state operated an immense counter-intelligence operation that would be impressive were it not directed at its own citizens. They kept a close tab on Loyalist as well as Republican paramilitaries, in part to stop the Loyalists killing valuable Republican informers. Above all the people of Northern Ireland, Protestant and Catholic, endured crippling hardship and were forced to become partisans against one another. It’s for their sake that the ‘peace process’ continues, even at the expense of the worst crimes of The Troubles going unpunished.

Barbarians At The Gate: 30 Years Later

Elizabeth Warren, one of the leading candidates for the Democratic presidential nomination, is bearing down hard on private equity.

It’s not the first time the private equity giants – often referred to as LBO firms, as in ‘leveraged buy-outs’, and increasingly known by the sanitised term ‘sponsors’ – have taken heat. It was one of the attack lines in 2012 that helped Barack Obama sink Mitt Romney, who made his fortune at Bain Capital. This is different. Warren’s proposal is smart politics because it’s utterly radical and yet “to a non-financial audience, it just sounds so reasonable.”

Most notably, Warren proposes to make PE responsible for the debts of its portfolio companies.

To understand the force of this change, consider a typical buy-out deal. ABC Partners buys XYZ Plc for £1 billion. ABC forms a new company, Alphabet LLP, to buy XYZ. But Alphabet won’t just use ABC’s money for the acquisition: in fact most of the £1 billion will be borrowed from banks and institutional investors such as pension funds. If XYZ underperforms in future years, Alphabet LLP won’t repay its creditors and in theory ABC won’t get its money back either*. But crucially, ABC isn’t on the hook for Alphabet’s debts. If it were, ABC would have to hold back millions of its assets from being put to work on other deals – just in case the debts of XYZ need to be made whole. In practice this would kill many PE companies and force those remaining to become conglomerates, taking on leverage at a corporate level and funding its loss-making subsidiaries until they can be improved, sold or closed.

It’s possible none of the will happen even if Warren is elected President and Democrats take full control of Congress. Ending limited liability, if that’s what the final proposal really does, is a big deal and Wall Street can afford lots of lawyers and lobbyists to say so.

For me this debate flared up at an opportune moment. I’ve just finished Bryan Burrough and John Helyar’s Barbarians At The Gate, their 1989 fly-on-the-wall account of the bloody battle between Ross Johnson and Henry Kravis’s KKR to take over the enormous biscuit and tobacco company RJR Nabisco. It’s one of the foundational texts of business journalism and was a source of increasing embarrassment that I hadn’t read it. The “Barbarians” line is attributed to Ted Forstmann, a rival financier who loudly denounced KKR’s use of junk bonds to finance its mega-deals.

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What lifts the book to the status of a “Classic Business Thriller” advertised on the dust jacket is the contemporaneous level of detail illustrating the interplay between rival suitors for RJR and their pumped-up Wall Street advisors, moved by ego as much as financial self-interest.

Barbarians At The Gate is journalism, it doesn’t dwell on doctrine, but it’s striking how little the debate about private equity has moved on in three decades. Burrough and Helyar wrote then, “Everyone knew LBOs meant deep cuts in research and every other imaginable budget, all sacrificed to pay off debt. Proponents insisted that companies forced to meet steep debt payments grew lean and mean…Critics of this procedure called it stealing the company from its owners and fretted that the growing mountain of corporate debt was hindering America’s ability to compete abroad.”

* I feel obliged to note the conceptually separate controversy that arises when ABC Partners, whose executives also control the decisions of Alphabet LLP, pay themselves handsomely in management fees or dividends before Alphabet concedes it can’t repay creditors after all.

The elusive zone

About six years ago I was hawking my bad student writing around various outlets and the Guardian gave me 300 words on the topic of “How to survive an all-nighter.” I stumbled across it the other day and couldn’t resist re-reading my own twee advice, including dated references to disconnecting the “ethernet cable” and the agonising kicker line, “Turn that all-nighter into an all-righter.”

That aside, I’ve long been curious about working habits and effectiveness — mainly because my own are so variable. I called it the “elusive zone” in the Guardian blog.

Even in jobs widely understood to be “brainy” there is work that will easily survive interruption by email, whatsapp and twitter. And in fact I suspect most of us have successfully re-wired our brains to categorise and split up our “work” into 5 or 10 minute chunks. So I’m not referring to that.

Spontaneous flow” (TW: TED talk) is one academic description of what I mean. It is the mental state of being engaged by one thing only to the exclusion of everything else, including an exact sense of time and place. The upshot is the gestation of original ideas or sheer speed of execution.

The tough question is whether the sacred cows of workplace culture — serendipity, connectivity, collaboration — inhibit or advantage deep, playful thinking. I don’t have the answer. My guess is that though the demise of the office cubicle is a good thing, so is the degree of solitude found in the late-night student essay crisis.

My own 2017 jealousy list

Bloomberg editors compile an annual link-wrap – the “jealousy list” – of pieces published elsewhere that they wish we’d written. I thought that’d be a fun exercise to try myself so here are a dozen picks.

1. The High Street Abduction (BBC)
A tick-tock account of what followed a child abduction in Newcastle in April, 2016.

2. The Rise and Fall of a K Street Renegade (WSJ)
Tragic tale of a D.C. corporate lobbyist who couldn’t keep up with his own greed. The amount of colour – $2000 bottles of wine –  is engrossing.

3. Is the Chicken Industry Rigged? (Bloomberg)
There are *at least* two very fun finance things about this story. First, chicken LIBOR! Second, the vexing question of whether a souped-up industry newsletter (that’s Agri Stats) can be so good that its subscribers violate antitrust laws.

4. My Double Life as a KGB Agent (Guardian)
“It’s as if they had spent time looking at fish swimming in an aquarium, and now they are training you to be a fish,” Barsky says. “But they don’t actually know what it’s like to be a fish.”

5. The pragmatic case for moving Britain’s capital to Manchester (Economist)
A rare take that totally transformed my view.

6. The Exquisitely English (and Amazingly Lucrative) World of London Clerks (Bloomberg)
“Many barristers regard clerks as their pimps. Some, particularly at the junior end of the profession, live in terror of clerks. The power dynamic is baroque and deeply English.”

7. The Secret Plan for the Days After the Queen’s Death (Guardian)
To get these kind of details before the event, which few insiders have any motive to discuss, is so impressive.

8. Anthony Scaramucci Called Me (New Yorker)
“I’m not Steve Bannon, I’m not trying to suck my own cock.” The short-lived WH Press Secretary’s fit of bitchy profanity was toe-curlingly joyful.

9. The Sorrow and the Shame of the Accidental Killer (New Yorker)
A gentle profile of individuals who carry with them the grief they’ve caused to others. I also like the discussion of “moral luck,” citing Jeff McMahan‘s notion that “people who are not culpable can nevertheless be responsible.”

10. Inside London’s Booming Secrets Industry (FT)
Investigating the (private) investigators. “Its services range from tracing fraudsters’ assets to darker arts that include hacking, infiltration, honey traps, blackmail and kidnapping.”

11. A woman approached The Post with dramatic — and false — tale about Roy Moore (Washington Post)
The Post, New York Times and New Yorker have exposed a torrent of allegations against powerful men in the media, arts and politics this year. The Post was subject to an undercover sting operation seeking to discredit its revelations about Roy Moore, the Alabama Senate candidate. Its failure vindicates the quality of the Post’s reporting.

12. The 100 greatest nonfiction books in English (Guardian)
These were drip-fed by author Robert McCrum through 2017. I like the list because enough titles are familiar to flatter the ego while the unfamiliar blurbs make for delightful discoveries.

Bonus pick because it’s Christmas: the Economist myth-busting the cliche that economists disapprove of all non-cash gifts.

 

The Undoing Project

Unusually for me, I’ve read a just-published hardback (props to the friend who pilfered me an unwanted copy from his magazine’s literary department).

It’s Michael Lewis’s latest about the remarkable friendship of psychologists Amos Tversky and Daniel Kahneman, The Undoing Project. The two Israelis — each eccentric and brilliant in their own way — discovered or seeded much of what is now known as behavioural economics, the family of claims whose central insight is that we are less rational than we think. Kahneman and Tversky discovered that heuristics, the rules of thumb with which we make decisions under conditions of uncertainty, often lead us astray. If this sounds familiar, that’s because these two and their progenies made it so.

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It’s almost three decades since Lewis wrote Liar’s Poker and he remains the greatest living writer of narrative non-fiction. The Undoing Project is impressive because academia is a rather more doubtful milieu from which to spin a rollicking bestseller than sports (Moneyball) or the financial crisis (The Big Short). Lewis didn’t write this one for the film rights.

That said, this is a classic Lewis book delivered in lucid, biting prose. It identifies the misfits, draws the dividing line between them and the retrogrades and tells amateurs like us why it matters.

Aside from its being a concise and authoritative guide to behavioural science, there is a gently recurring irony which makes the book a pleasure to read. Kahneman and Tversky detailed holes in human judgement wide enough to drive a bus through, but their own personal relationship was hobbled by serious character flaws. An initial closeness in Israel — they flipped a coin to decide whose name would appear first on published research, it being impossible to distinguish their respective contributions — weakened as their careers in North America diverged. Tversky’s personal success, stemming from his enormous charisma, made the shy Kahneman envious and — being acutely aware of human feelings, not least his own — deeply unsettled. Tversky repeatedly failed to recognise and act on the obvious tension.

Tversky died young in 1996 and so didn’t live to share his partner’s 2002 Nobel Prize or co-author his 2011 book Thinking, Fast and Slow, which synthesised much of the pair’s workLewis of course was only able to give Tversky a voice through contemporary writings and the recollection of others, a sad fact that limits his story to a “recommended” rather than “must-read”.

Mac & Wild, W1W

Food-writing is a crowded market. And I’m wary of the idea that writing about food is, to corrupt a phrase, like dancing about architecture; that is, pointless and weird and….worth a go? Let’s see. As a rule there will be no prices or pictures.

MAC & WILD, 65 GREAT TITCHFIELD ST, W1W 7PS
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It’s a swell feeling, to decimate Mac & Wild’s deep-fried haggis balls on the evening before a workday and know that everything is going to be ok. The Scottish game & whisky restaurant in Fitzrovia is very good — good enough even to forgive their homepage video, Made in Chelsea: Caledonia.

Service is superb. The waiters know exactly what’s on the menu. Ours directed me away from the cocktail I chose (Anna had it instead; whisky-vermouth charged with soda) to one I preferred, the ‘Auld Pal’, a Negroni-inspired aperitif.

The Scotch list is extensive, if a little expensive. A cheaper option to picking dishes with the suggested single-malt accompaniments is to wash down the ‘Veni-moo’ burger — two patties: beef and venison; plenty (too much?) béarnaise — with a hoppy lager from Glasgow brewer Drygate. Sides are extra but keenly priced. Green beans with butter and black pudding was inspired. The Australians next to us tucked into juicy-looking venison chops. Dessert was a dense chocolate mousse with salted-caramel ice cream, essentially flawless.

Cautionary notes: a couple of things were sold out, always a shame. The decor is cosy and Scottish, but arguably the crates of neon-orange Irn Bru are trying too hard. And the basement, a spillover not in use on the bank-holiday Monday we ate, is decidedly inferior, a sparse afterthought to the bonhomie of upstairs.

Most restaurants pass the ‘bucket test’ — good enough to relish for novelty value without actually returning. Finding a place that’s good enough to go back is harder. Mac & Wild passes.

Corporations writing the news

Supposedly this is a bad thing. This week the reaction to the news that City AM, the London business freesheet, will open up its website to paying content-producers was hostile, at least among those who work in the media. Clients “will be given direct access to the content management system (CMS) of the newspaper’s website,” according to Ian Burrell.

There are all sorts of potential problems with that, well-stated here. But it’s not the end of the world. City AM’s idea differs little from the Huffington Post’s blogs or Buzzfeed’s ‘community’ site. What’s more, companies are already producing content on their own platforms. Migrating to more popular news sites in itself isn’t a problem.

Watch Goldman Sachs’ video: ‘Artisanal Appeal: The Rise of Craft’. It’s, um, quite good? Informative, well-produced and edited. If Goldman wants to pay City AM to publish this on their website, then who is being badly served?

Corporations “have some of the biggest experts in their field, much better than probably any journalist in London,” Muncaster, City AM’s managing director, told Burrell. I think that’s fair — and not every story requires a journalist to intermediate.

Clearly though, a lot do. Here’s a new website — www.advancingtogether.com — set up last month by representatives of Bayer, a German agricultural giant, to promote its proposed $63 billion+ acquisition of Monsanto, a U.S. rival. The site features information and a filmed interview with Bayer’s CEO.

Like most M&A, the takeover resembles high-stakes poker and there is skepticism about whether it makes sense. Bayer isn’t going to say that, so they shouldn’t be the only guys writing the news. If Bayer were to pay City AM to publish their take, cool. But if it were paying to replace the journalists’ coverage of the deal with its own slick reporting, maybe that’s not a good thing.

The worry about paid content in the news industry in recent years is that its value to clients lies in the opaque understandings between publishers and advertisers that the rest of us don’t realise. The question is whether there is enough space for the free media to raise cash without going into that grey zone.

 

Podcasts

Recently I moved to a new place within walking-distance of work. That’s great, not least because ambling across and back over the Thames every day amounts to several hours a week of uninterrupted listening time. Here are a few recommendations of things I’ve enjoyed:

Odd Lots — I’m not just putting one in for the team. It’s a smart but breezy take on business and markets. It doffs its hat to whatever is in the news that week but typically goes off-piste into the more esoteric stories and themes. Try the March 7 edition, an interview with Eric Balchunas who wrote a terrifically thorough history of the ETF industry, which has been around for a while but is now rapidly uprooting traditional, expensive forms of asset management.

FT Alphachat/Alphachatterbox — probably the brainiest series I regularly tune in to. The FT’s financial bloggers including Cardiff Garcia, Shannon Bond and Matthew Klein run an interview-based show that is *not* concise but doesn’t lose itself in waffle. The quality of the guests is high and they are permitted to answer at length. Try Matthew Klein’s hour-long interview with Jim Chanos, the famed short-seller.

Germany: Memories of a Nation — a short and sweet audio catalogue following the book/exhibition of the same name by Neil MacGregor, the former director of the British Museum. It amounts to a potted history of Germany built around its most famous people, places and objects.

The History of Rome — I’m only about a dozen episodes in to a 179-chapter narrative-dominated account. That’s great for me, because I know only the bare bones of the ancient world, but it might be too familiar for those who’ve studied it. Mike Duncan, the man behind it, has since created a second monster-series called ‘Revolutions’.

You Are Not So Smart — the tone is a bit labored and corny, but it does the job: namely, telling you stuff you didn’t know, including about topics you thought you knew well. The series is ‘a celebration of self delusion that explores topics related to cognitive biases, heuristics, and logical fallacies,’ according to the iTunes precis. Those who’ve read Daniel Kahneman’s seminal Thinking, Fast and Slow will find much to chew over here.

Otherwise I’m listening to BBC classics including In Our Time and Desert Island Discs; and my friend Anna co-hosts SRSLY, the New Statesman magazine’s take on popular culture for highbrows.

A whine//magnum opus about London renting

I briefly became a fervent Jeremy Corbyn supporter today after a nasty surprise from our letting agents.

Hours later, that’s subsided. But the exchange did crystallise a few thoughts.

I’m moving out of my north London flat this week. Today an employee of Jigsaws, the lettings agent just a stone’s throw from Corbyn’s north Islington home, told us of their £162 exit fee and £210 (minimum) cleaning fee. The unspecified charges are alluded to in the small print of our contract. It was our responsibility to discover the detail and ask what the charge was likely to be, the agent said when I called her later.

Feelings of both anger and embarrassment that are characteristic of such ‘gotcha’ charges followed. It’s the sort of drive-by shooting that leads to a loss of faith in my brand of happy-go-lucky liberalism. I’m over the hump but now I’m sort of interested in it all.

We got fleeced because of two inequities or asymmetries. One, of information: when we sat down to sign our contract a year ago, the agents knew the hidden charges buried within. We didn’t. Two, of care: to middle-income tenants like us, the fees are a nuisance and a forgettable financial discomfort; but in London’s low-yield rental market, they are crucial to the agencies’ business model.

Researching whether we had any recourse to action I came across the property ombudsman’s website. From May 27 (after we signed), it says, agencies were obliged to “display a list of all fees, charges and penalties.”

That’s encouraging. Transparency should encourage competition between agencies, mollifying and/or formalising the rip-off fees. It may even lead to disintermediation. If prospective tenants knew about hidden costs upfront, they might push to strike deals with landlords directly. If the Airbnb for long-term rentals doesn’t exist already, someone will invent it. And existing players like SpareRoom may take market share.

I’m venting of course. Dodgy estate agents are nothing new and we should have done our homework more carefully. But my (naive?) guess is that by the time my younger siblings and cousins squeeze into the London property market, agencies’ mercenary tactics will be on the way out.