On one visit to the Inquisition, Galileo got a swine of a question. ‘Why do you think you’re here?’ I’m afraid that from time to time I could be worse. ‘As you sit there in the witness box today, do you think what you did was right (honest, sensible, careful, conscionable, or whatever)?’
Either form of teasing dilemma summons up the Hampton Fair in the 50’s – firing an air-rifle at moving ducks. You just waited until the head of the duck moved into your sights. Then you pulled the trigger – and knocked over the duck. Shooting sitting ducks was child’s play.
The banks knew they were in big trouble when the present commission began. First, the failed efforts by their friends in government and the press to protect them from public inquiry meant that the latter-day tricoteuses could smell a cover-up and would be out for blood. Secondly, there is hardly any presumption of innocence. The website refers to the ‘Royal Commission into Misconduct’. Given the banks’ confessional tone in trying to avoid any inquiry, the commission is merely stating a fact, but imagine asking the Israelis to be examined about the ‘massacres’ at their border. Thirdly, the government petulantly locked the inquiry into a time-scale that some feared might castrate it. That meant that some procedural niceties would have to go.
For whatever reason, witness statements were ordered. I think that practice is pernicious, and on reasonable grounds, I suspect that this commissioner has the same view. It is unfair to the witness – especially the honest witness – and it leads to game-playing and concoction. Many good judges condemn this process.
What we then get is not so much cross-examination, but what normally comes at the end of cross-examination – counsel puts to the witness the substance of the allegation against their side. This is required by common sense and ordinary decency – and therefore by the law.
But when the inquiry is at large, the result can bear an ugly resemblance to a one-sided debating bout that becomes an exercise in ritual humiliation. Counsel has access to apparently unlimited documentation compulsorily acquired from the target – something that the accused in an ordinary criminal trial would never be exposed to. The witness then has a choice – they either bag their mates, or they dissemble. That’s a nasty dilemma.
And this contest, or duel, doesn’t take place before a judge who Maitland said should act like a cricket umpire, but before a representative of the executive government – who is appointed to report back to government after inquiring into that mystical thing called truth.
So, these inquisitions make common lawyers very queasy. I rarely lost that queasiness in performing similar functions in tax and other tribunals or a public inquiry over thirty years.
But someone is feeding some in the press some dud lines on these issues. One is that the banks are denied due process. If the banks and their nominated witnesses do not yet know the case they have to meet, they have been living on Mars, and giving their shareholders – of whom I am one – further evidence that their executives are grossly overpaid.
Then it is said that the laws of evidence don’t apply. Sadly, most lawyers and judges have not properly applied those laws for years. (One reason is those accursed witness statements.) The present commissioner knows these laws. Most of them relate to logic, fairness, or relevance. It is plain silly to suggest that this commission might ignore those requirements. Each of those suggestions of unfairness is therefore groundless.
If I am wrong about that, and the unfairness is, as suggested, both harmful, and unlawful, the victims can afford to go to court for redress. If therefore anyone pushing this line is prepared to surface – so far their number is zero – they can put up or shut up. We know they have the money.
Anglo-American lawyers well know the perils of the inquisition. Maitland saw the medieval difference between a procedure ‘to inquire of’ and one ‘to hear and determine’ criminal causes. England just avoided ‘that too easy path which the church chose and which led to the everlasting bonfire.’ We also know the risks of asking judges or former judges to do dirty jobs for government. Lord Devlin said that English governments showed their respect for judges by asking them to dig them out of political holes.
But we most agree that we need this inquiry badly. The banks are doing it hard, partly because of their original misconduct; partly because of their ill-advised efforts to remain under cover; and partly because of the sulky and inept way that the government repented and ceased being an ostrich.
The relationship between government and banks has gone bad and will not get better. That is not bad news. But sometimes you have to endure misery to get better. I know that well. Try having surgery for piles.
And whatever you might say about banks, there is not one Galileo among them.