Quentin felt quietly pleased with the way things were going in court. There was no doubt it was a high profile and controversial case, which would probably make the media and papers, with his name attached. The defendant’s barrister, Michael Knowles, hadn’t really attacked the evidence, either the way it was collected, its provenance, nor its reliability or its legal weight against his client. The defendant was an odd-looking individual, somehow unkempt despite his suit and tie, gaunt and ungainly, with a far-away, averted gaze during proceedings – not at all the sort of fellow to endear himself to a jury. That was all very satisfactory. He was really more than a little surprised at the line Michael was taking as he neared the climax of his plea to the jury.
“My client has expressed no extreme views, either online or in conversation. He has not posted anything which contravenes any law, including those laws which prohibit the expression of views which attack minorities or imperil public order. He is a quiet, independent citizen who keeps himself to himself and follows his own interests. He is not even accused of illegal action. Bizarrely his only crime appears to be a lack of action – a lack of action which, according to our probability modelling computers, suggests that he might join prohibited groups or promulgate dangerous attitudes and opinions at some unspecified time in the future. Nobody is even saying that he has such attitudes or opinions at the moment. In fact he has been a model citizen, hard-working, self-sufficient, cooperative with authority and no trouble to his neighbours or co-workers. He has no police record, not even a traffic violation. Is this law not an expression of the paranoia of our society and its guardians, an example of our uncontrolled fears depriving an individual of justice and liberty?”
Quentin looked at Judge Whittaker and sure enough he frowned, thought for a moment and then spoke.
“It’s not the place of this court to call the law into question, certainly not your place Mr. Knowles, and I can’t see how it benefits your client. Have you nothing else?”
“I’m concluding, your honour.”
“Very well. Continue!”
“Look at the defendant and his record, members of the jury. It is hard to imagine a more harmless member of society and yet you are asked to find him guilty of future hate crimes or the promotion of prejudice and social division – a man so law-abiding he has not even parked in the wrong parking spot. How many of us can say that? How many of you, members of the jury, have a record like that? My client is innocent and you must return that verdict, emphatically.”
Michael sat down and it was Quentin’s turn.
“My colleague has seen fit to attack the law under which his client is accused, but let me ask you this, members of the jury, what is the purpose of this law? We all know the answer to that – it is to protect us, to protect our society and particularly its most vulnerable members, against the kind of outrages that have far too often occurred. How often have hateful views been expressed and hate-filled acts carried out by previously law-abiding and often quiet and withdrawn members of society with no warning? These individuals were in no database of previous offenders or of members of illegal or suspect organisations. The guardians of law and order were powerless to foresee and therefore to prevent such events and that is why prediction and probability algoritms became so valuable a part of law enforcement and indeed the law itself.”
“Of course it is not necessary or even relevant for me to defend this law to you. The law is what it is and the only question before you is whether the evidence is sufficient to prove the risk to society the defendant poses. It is a measure of the desperation of the defence that they have spent all their efforts on attacking the law and none on disputing the evidence. I put it to you that this is because the evidence is beyond dispute.”
“You have heard and seen the evidence. Let me summarise it for you. The defendant, like most of us, spends a considerable fraction of his time online every day but in the last ten years there is almost no record of his having visited a site either run by or focused on a minority group; on those rare occasions when he has landed on such a site he has invariably navigated away without engagement of any kind. This can only be interpreted as a deliberate choice on his part. Furthermore this choice has resulted in his being a visitor to sites popular with extremists from across the world far more than would normally be expected; in fact the statistics show that he is two and a half times more likely to be sharing a site with extremists than the average member of the public and in fact visits such extremist sites several times a week.”
As he expected, Michael was on his feet.
“My Lord, I object to the phrase ‘extremist sites’. My client has never visited such sites. My learned colleague is referring to perfectly unobjectionable sites which happen to be visited by known extremists.”
“I agree, Mr Knowles. Members of the jury you must take note. There is no evidence or suggestion that the accused has visited extremist internet sites. Counsel will withdraw the remark or rephrase.”
“Very well, my Lord. He visits sites at the same time as known extremists from around the world several times a week. Will that do?”
Michael Knowles didn’t look happy, but finally nodded.
“In any case I wish now to turn to the predictive evidence. This is very strong. Three different analyses using different models give a probability of over 93 per cent, ranging from 93.2 to 95.1, that the defendant will join a group with known links to racist views in the next five years. The probability that he will post his own or forward someone else’s remarks that will give rise to a racial incident in that time is very nearly 90% – and so it goes on, as you have heard. These are high risk numbers. People have been found guilty on much lower probabilities than these.” Quentin paused for dramatic effect.
“The law is clear. The probability of future harm to others outweighs the rights of the individual in the present moment. The defence has tried to portray the defendant as harmless but the predictive algorithms based on his past behaviour say otherwise and the lessons of recent history reinforce that. We must protect our own and our children’s future and there is no doubt that Derek Harris has been identified as a serious threat to both. You must prevent that threat being realised by finding for the prosecution, thus ensuring that the defendant is kept under direction and the future made safe.” Quentin sat down, feeling confident. There was no doubt in his mind that the case was won. The truth was that there was no real defence if the evidence was there, lawfully collected and recorded, and there were no inconsistencies or disagreements among the predictive analyses and algorithms.
The judge asked the foreman if they needed to retire but after a brief, whispered consultation he announced that they were all agreed. The verdict was as expected, though the foreman tagged on a formula stating that they were not finding the defendant guilty of any crime but only agreeing with the finding that he represented a future risk. Quentin happened to know that this hand-washing form of words had been created for juries by the same lawyers who had drafted the legislation, fearful that juries would balk at convicting without it. It appeared to serve that purpose well. The judge asked if Derek Harris wished to say anything before he came to passing sentence and to Quentin’s surprise he rose to his feet, holding himself very erect and turned to half face the spectators, not quite enough perhaps to be showing disrespect to the judge but with a decisive swivel.
“We are not statistics and computers are not equipped to judge us,” he began in a clear, firm voice. “The law is a human business, where we judge each other according to the rules we have agreed on and according to what we know of our own human natures.”
“This law fatally undermines personal responsibility and individual freedom. A fundamental principle of law is that people are responsible for their actions – and if they aren’t, because they’re incapable in some way, then they cannot be put on trial, let alone be found guilty This law assumes the opposite – that present patterns of behaviour, though perfectly legal, will lead to illegal and prohibited acts in the future; it doesn’t recognise the intentions or character of the individual; it denies will power, personal responsibility and any possibility of an individual having and adhering to a moral code.” “And where will it end? What if the modelling predicts that babies with a particular genetic make-up are likely to have anti-social tendencies? Will we prohibit their parents from child-bearing or restrict their offspring’s freedoms throughout their lives?”
“Such an unjust, absurd and paranoid law breaks the social contract that underpins government and the legal system. As citizens we give away some of our freedoms for the advantages of cooperation, protection and stability but the system must not remove our individual rights and responsibilities. Predictive law encourages a defeatist and fatalistic attitude; we are allowed no control over our destiny in the face of statistical probability. It reduces our humanity .” Derek Harris turned to face Quentin and then back to the judge.
“I dread to think what the long-term consequences of this law and its underlying attitude to people will be,” he said quietly and sat down. There was some scattered applause. Quentin was surprised, a little taken aback, by the cogency of this address, even if he profoundly disagreed with it. Judge Whittaker waited for the applause to cease completely before continuing.
“Thank you Mr Harris. However, I wish to make it clear to all present that it is the job of this court to try defendants according to the law, not to engage in what is essentially political debate. It is not and cannot be within the remit of courts or judges to make decisions about the legislation they enact; that is of course the job of the legislators we elect.”
“Derek Herbert Harris, the jury has found that you pose a substantial risk to social order and cohesion, as defined in the provisions of the Social Cohesion Act 2022, as amended in Preventative Measures, October 2027. I am now going to go through the restrictions and compulsory attendances which are the various components of the only sentence the law allows. Considering the length and complexity of these there is no requirement that you should stand.”
Quentin left the court well satisfied. He had no doubt in his mind that Harris was just the kind of eccentric loner most likely to end up inciting racial hatred even if he didn’t seem the type to become an actual terrorist and plot atrocities. He obviously had racist attitudes; he just hadn’t put them into practice yet.
Back in chambers he was taking it fairly easy, just glancing through possible briefs, including a very similar one to today’s he fully expected to come his way in a week or two, when Andrew Sullivan, head of Chambers, popped in “for a quick chat”. After congratulating him on his victory in court he came pretty rapidly to the point.
“We’ve decided to give the next social cohesion case – Browning, isn’t it? – to Nelson. I know you may very reasonably have been assuming it would go to you and this is of course no reflection on you whatsoever; you’ve done a splendid job. It’s just a PR exercise I’m afraid; Nelson leading will just dramatise our commitment to the values involved in the case and he is very capable. It’s important in such cases to make it very clear what our values are. We’re hoping you will give him the benefit of your experience, just informally of course.”
“I suppose this was decided while I was in court this morning?”
“Yes, sorry you couldn’t be at the meeting. I hope you don’t mind. We thought we would offer you the Mercury tax evasion case instead, should be due up this month some time.”
He didn’t argue but didn’t try to hide his disappointment; he understood why a black barrister might have more bite on social media, though he didn’t think Nelson was as good as Sullivan made out. The Mercury case was likely to be mind-numbingly complex and they would have top level people defending he knew.
A few hours later he was sitting in the Bull with Rupert Michaels, an old acquaintance if not exactly a close friend, having just lost to him at squash, an Inns of Court ladder game at that. It had been a close game, he thought, but he lost more often than he won against Rupert. He could be fitter, too, he had realised during the game. As the loser he had bought the drinks. They clinked glasses.
“You were on good form,” he said. “I can comfort myself with a court victory at least, I suppose.”
“It was a close match as usual, but yes, that was a nice result for you. A controversial case, high profile.”
“The judge was very helpful – very clear about the law. It was the right result, I’m sure.”
“You are satisfied you were prosecuting a secret racist?”
“Yes, of course. Somebody who evades all minority contacts, online and elsewhere, for over 10 years, that should be enough for anyone. I think it will be a good thing if it hits the media – as a warning to others.”
“You mean the furore hasn’t reached you yet?”
“What? Is it out there already? What kind of splash has it made?”
“It’s all over everywhere, very heated; your defendant’s surprisingly and perhaps suspiciously powerful speech has been quoted very widely and that’s added an extra layer of drama.
“I didn’t think it was that powerful – but suspiciously?”
“Some of the more right wing commentators believe it was a set-up, an attempt to discredit the legislation. According to one source Mr. Harris is or was a member of D.A.”
“Democratic Action? I’m sure our people wouldn’t have missed that. My information was that he was a recluse, a hermit, lived an extremely, unhealthily private life.”
“Anyway be prepared for an exciting ride. You’re already being lionised by the right and demonised by the left – that’s what comes of trials based on such controversial legislation.”
“I think it’s a good law, a necessary law. Don’t you agree?”
“No, I’m afraid not. I’ve been avoiding cases like that. I can’t help feeling the legislation is not just about security and crime prevention; it’s an attempt to control our thoughts and feelings by the threat of punishment and re-education, forcing state approved attitudes on individuals.”
“Come on now, that’s an exaggeration – and anyway isn’t it a good thing if it prevents the divisive, discriminatory thoughts that lead on to hate crime and the dissemination of primitive, bigoted attitudes and ideas?”
“I am more cynical than you about our human nature. Are any of us entirely free of such thoughts and feelings? I don’t think you can prevent such a powerful, primitive instinct, the urge to reject the different, the alien, to cling to the familiar, to one’s own little group, to belong and then to wish to reinforce our sense of belonging by excluding others, by identifying them as not belonging.”
“But as you said, it’s primitive. We have to grow out of it, to learn. It has no place in a civilised society. The evidence suggests that Harris isn’t learning or trying to learn.”
“I don’t believe your Mr. Harris is much different from you and me. He hasn’t done anything. I think that’s the best any of us can say – the only control that can be expected – not acting on our more primitive instincts. I don’t usually act on mine but I know they’re still there.” Rupert turned to him with a quizzical smile. “Aren’t we all a bit like Harris?”
“No! I’m not. Most people are not. I was brought up to believe in equality and fairness for all and I’m sure that’s true of most normal members of society nowadays. Harris’ total avoidance of all elements of minority culture and activity is as good as a confession of prejudice, deep-rooted prejudice, possibly even hatred. I, like most people today, find such attitudes repugnant.”
“Well, it’s an interesting discussion. I think our civilised ways are far more fragile than you do. Scratch a civilised citizen and the primitive beast will out etc. Anyway, it’s my round. What can I get you?”
Quentin demurred, saying he had to get back, which was true, though actually he had had enough of Rupert and the argument. He was also eager to see some of the coverage the trial was getting.
The tube up to Swiss Cottage was still quite crowded, even though it was getting on for eight o’clock, and he just missed getting a seat when two younger men, both black, beat him to it, moving with considerable speed and taking the last two together. It wasn’t that he was old enough to qualify for special treatment or even that they had been really rude but he was irritated all the same; he felt they had rather pushed past him.
They were in loud conversation, not in English but in some some European language, possibly Dutch; they were so involved with each other, one had his arm around the other, that he assumed they were gay and lovers. A thought to do with promiscuity and race began to form in his head which he quickly repressed. Rupert Michael’s “Aren’t we all a bit like Harris?” came back to him but he wasn’t going to entertain it. He had suppressed the thought before it had been fully recognisable. Being irritated by young people pushing past you on the tube was in no way the same as homophobic or racial prejudice.
Despite having to stand the whole way, he was able to get a fair idea of the way the media were treating the trial on his phone. Rupert was quite right; opinion was strongly, almost violently, divided, mainly along Left and Right lines.
His name was mentioned fairly often, of course, which gave him some satisfaction, but the defendant Derek Harris featured even more prominently, quotations from his speech scattered about all over the place.
He was home about seven but Valerie was still not back; he remembered then that she had a staff meeting and was going to be late. He fixed himself a stiffish drink and turned on the tele. The news was still running and sure enough the trial came up somewhere round about fifth. Cameras had not been permitted in the court but a reporter gave the jury’s verdict, including the little hand-washing formula, and the beginning of Judge Whittaker’s sentencing. There was a very brief summary of both counsel’s arguments, scarcely doing his own much justice, he felt, though they did mention his name, but a much longer piece on Harris’s little speech, including extensive verbatim quotation. Then, to his surprise, there was an interview with a political correspondent who talked of a rumour that Harris had been carrying out a secret project, possibly just on his own, initiative or possibly for Democratic Action, to investigate the spread of divisive and discriminatory ideology on apparently neutral and non-political sites across the internet.
Quentin was furious. He didn’t believe a word of it. The fact that Harris’ defence team hadn’t used this showed how preposterous it was. At least the correspondent admitted that it was just an unsubstantiated story. Quentin would have snorted in contempt if he’d still been in court. A story, he thought, which neither the defendant nor his legal team had seen fit to mention, almost certainly because it wasn’t true.
He had just got up to freshen his drink when he heard a car outside and crossed to the front window. Valerie was sitting in the front seat taking off her seat belt. She saw him and waved, before turning back to talk to the driver, whom he recognised as Malcolm Braithwaite, the tall black maths teacher who often gave her a lift. She leaned closer to Malcolm, apparently sharing some joke, since her slender shoulders were shaking slightly; she looked very cheerful, happy, even radiant, he thought. A moment later she was laughing so hard that she bent almost double and put one hand on his shoulder as if to steady herself. He thought he saw Malcolm put his own hand on top of hers in an affectionate manner.
“I don’t know what she sees in that ….,” he started to think, but stopped before the words could fully form in his head. Being irritated at your wife flirting was perfectly normal; primitive racist instincts didn’t come into it. He was a civilised individual, blessedly free of such attitudes and thoughts.