Law & Disorder

Following the startling success of Movers & Shakers, the podcast on living with Parkinson’s which I co-founded in Spring 2023, my old mate Charlie Falconer and I agreed last October that we would explore producing a podcast to guide the intelligent layperson on the big legal issues of the day. We agreed that a female voice was vital. Helena (an old friend of Charlie’s) took no persuading and brought with her a huge knowledge of the intricacies of criminal law.

As I had some experience of setting up and conducting a podcast, everything quickly fell into place. We did not want an achingly serious, respectful show where everyone politely agrees with each other, nor one of those recently skewered in Private Eye as a ‘high-class donkey sanctuary where a surfeit of middle-aged men who want to be listened to live out their days in well-remunerated comfort’. Above all, we were, determined that, unlike so many legal podcasts, it would not be boring.

Every edition of every broadsheet newspaper contains page after page of legal issues. Many people will have strong opinions on these and lack the time or inclination to research the legal sources. We wanted to elucidate those issues, to look at the history of the laws in question and examine them in their current context.

Debating the show’s title, we considered (and rejected) ‘Against the Law’, ‘Not Just Law’, ‘Law Matters’, ‘Law Rules OK’ and ‘Sod’s Law’. ‘The Rest is Law’ was already trademarked by our future opponents at Goalhanger. So, we settled on ‘Law & Disorder’. The title captures the supposed certainty of the law but subtly introduces its instability and unreliability – and the likelihood of spirited disagreement.

After we’d agreed the basic structure, on 9 December 2023 we announced that we would release the first episode on 20 January 2024, with this swaggering introduction:

‘A trio of experienced, well-informed, well-known lawyers, who will bring both knowledge and clarity to topical legal issues. Between them they have very extensive knowledge of Criminal, Commercial, Civil, Family, Administrative and Human Rights law. Perhaps immodestly, they suggest it is doubtful that a trio could be assembled with more legal knowledge than them. They also, equally immodestly, claim to be amusing, good company and fun to spend time with!’

The first episode analysed the Rule of Law, a concept featuring prominently in many of the subsequent episodes on topics including the Post Office scandal, the law of libel, the Rwanda Act, the rights of the unmarried, SLAPPS and Donald Trump. Some listeners have criticised us for talking over each other – but no-one could accuse us of being boring.

As an amateur legal historian, affectionately nicknamed ‘the tame geek’ by the others, I have assumed the role of head researcher, which suits my slightly obsessive legal brain. Many of the topics have involved a steep learning curve. A recent episode considered the overturning of Harvey Weinstein’s rape convictions by the top court in New York, on the ground that similar fact evidence had been unfairly admitted at trial. This involved delving deep into New York’s common law, as that state has no equivalent to the Sexual Offences Act 2003. That took a lot of work. Understanding exactly of what crimes Trump had been found guilty was not straightforward (although such an understanding seems to have eluded most commentators and not merely his fanatically devoted supporters and apologists).

We have recently recorded an episode jointly with the hosts of the podcast A Long Time in Finance on the rightness of the Court of Appeal’s dismissal of the appeal referred to it by the Criminal Cases Review Commission in the Libor-fixing cases of Hayes and Palumbo. My research for that was into new territory, legally and factually.

Researching the episode released on 22 June, looking at the ‘odious crime’ of slavery through a legal lens, has been fascinating. Long ago I read Lord Mansfield’s blistering judgment in Somerset v Stewart (1772)* and I was aware of the infamous case of The Zong (correctly known as Gregson v Gilbert (1783)) having seen the 2013 movie Belle. I now know that the movie’s story turns history on its head in portraying Lord Mansfield, played by Tom Wilkinson, as a warrior for justice and scourge of slavery. On the contrary, in real life, as the law report shows, he had feet of clay, accepting in principle that the owners of an allegedly foundering slave ship, whose crew had thrown 135 sickly slaves overboard, were acting within their rights when they claimed £30 per slave insurance from the underwriters. Mansfield observed ‘though it shocks one very much, the case of slaves was much the same as if horses had been thrown overboard’.

To tackle the issue, I read Mr Justice Best’s magnificently self-righteous judgment in Forbes v Cochrane and another (1824) where he looked at length at ‘the history of the odious traffic out of which the relation of master and slave in the West Indies has arisen’ and praised the judges (but without complete accuracy, I fear):

‘It is matter of pride to me to recollect that, whilst economists and politicians were recommending to the Legislature the protection of this traffic, and senators were framing statutes for its promotion, and declaring it a benefit to the country, the Judges of the land, above the age in which they lived, standing upon the high ground of natural right, and disdaining to bend to the lower doctrine of expediency, declared that slavery was inconsistent with the genius of the English constitution, and that human beings could not be the subject matter of property.’

His peroration referred to Blackstone who had stated in his Commentaries that: ‘That if any human law should allow or injoin (sic) us to commit an offence against the divine law, we are bound to transgress that human law.’ It will be interesting to discuss when Blackstone’s legal principle became inactive. In the light of recent statutory measures, I can see that it would have been a useful weapon in the judicial armoury.

We have had great reviews from the Guardian and the Spectator and in February we rose to No. 14 in the charts. Individual listeners have given amusing and pointed reviews, which we have taken on board. Many note the phenomenon of ‘Dame-splaining’ (Helena has recently been invested as a Dame of the Thistle).

For example, one commentator says:

‘I am very interested in the topics raised on this podcast. However, would it be possible for each member to speak without interruption, and could we hear them equally? At present half the time is taken up with the opinions, thoughts, attitudes of one member and the other two have to try to get their ideas over very quickly when she pauses for breath.’

And another:

‘This is a thought-provoking podcast. Helena Kennedy is both the best and worst of the trio. Her contributions are always fluent and insightful; but she constantly interrupts and is intolerant of anyone else’s opinion. She never allows Falconer to challenge her statements.’

But she is this commentator’s number 1:

‘A fantastic new deep dive into the legal side of political arguments of the day. Refreshing to hear from such distinguished experts in various fields of law (Helena is my favourite, however!). Great podcast, I always look forward to the next episode to hear the “slow news” and brilliant analysis of topical debate and issues.’

We have taken on board this observation made on 3 May:

‘It’s becoming increasingly political in my opinion. So you need some balance to left of centre views.’

Since then, we have had episodes about the judiciary, public enquiries and Harvey Weinstein’s success on appeal, which I believe had a heavy content of solid law.

My favourite comment simply said:

‘I have to confess to becoming a bit addicted to this podcast. Love to play it as I am tidying up and find myself talking back to them all. Fabulous.’

We will be happy indeed if we can get all our listeners to feel this way. 

*Although I had not noticed the remark of Lord Mansfield during argument that a precedent relied on by counsel was not to be given much weight as ‘the case alluded to was upon a petition in Lincoln’s Inn Hall after dinner; probably, therefore, might not, as he believes the contrary is not usual at that hour, be taken with much accuracy’.