I have to say that the World Cup sort of crept up on me and as a consequence I haven’t been able to work up the same enthusiasm as in the past. That is partly due to it appearing in the middle of the Premier League season, partly the playing conditions and partly the corruption associated with FIFA. After the FBI and Swiss authorities’ investigations into FIFA and the subsequent prosecutions it was hoped that the reputation of the worldwide football association would be restored. However, in the opinion of Mark Pieth, who was tasked to improve governance in the organisation, “the supposed modernization under current FIFA head Gianni Infantino has “plunged it into the Dark Ages of [former FIFA president Sepp] Blatter.” As Pieth notes, “they’re simply not up to regulating themselves.” Washinton Post 20/11/22. Which brings me to the reason for this essay. Not so much the question of corruption but the mention of the FIFA President, Gianni Infantino.

Gianni Infantino had taken on the responsibility of locating the 2022 World Cup to a venue that had no or, very little football infrastructure and a reputation for enforcing strict Sharia law. Knowing that this created issues for the ever-present alphabet soup community he received assurances that Sharia law enforcement would be relaxed for the period of the World Cup in Qatar. There was also the problem of migrant labour that was imported to build the football stadiums and associated facilities. Human Rights Watch, Amnesty and the Guardian, amongst others, have focussed on pay and conditions of these exploited workers. It is against this long-tailed background of complaints that my attention was drawn to the FIFA presidents inaugural address to open the competition. First of all, I must disclose that I didn’t listen to the full 57-minute speech. I don’t know anyone who did. Infantino started his speech in the manner of an inebriated father of the bride who, ignoring all the frozen stares of his family, made the occasion all about himself.

“Today I feel Qatari,” he said. “Today I feel Arabic. Today I feel African. Today I feel gay. Today I feel disabled. Today I feel [like] a migrant worker.” He added: “Of course I am not Qatari, I am not an Arab, I am not African, I am not gay, I am not disabled. But I feel like it, because I know what it means to be discriminated [against], to be bullied, as a foreigner in a foreign country. As a child I was bullied – because I had red hair and freckles, plus I was Italian, so imagine.” The Guardian, 19/11/22

Just a couple of points. Whilst not diminishing the effects of his early experience, hopping across the border from one western European country to another, bears no resemblance to the hardships suffered by foreign labourers working in Qatar. There is one ‘oppressed’ group that he missed, possibly because it is not recognised in the LGBTQ+ acronym, and that is, women. He hastily rectified this by adding this half of the population to the list of people he ‘feels like’ at least sparing us from describing women as ‘birthing people’. Was his empathy for everyone, other than white men, a criticism of his hosts anti gay laws, the hardship suffered by foreign workers and the restriction on women’s rights? From the excerpts of  his speech that have surfaced, seemingly not. Like the drunken fathers speech, it is difficult to see what he did mean. By mentioning all the progressive shibboleths he must have known that this would highlight the cultural differences between the West and the hosts. In a further twist he had complained about some of the criticism he had received from Human Rights groups and he defended himself as follows

Infantino had suggested critics were “handing out moral lessons to the rest of the world” and said nations should “not allow football to be dragged into every ideological or political battle that exists”. The Guardian, 13/11/22

Does he not see the hypocrisy between his speech cataloguing all the groups  driven by Western progressive ideology that he feels part of  and his demand that Football be kept free of  ideology and politics? To give him the benefit of the doubt I don’t think that he does. I think that he his so focussed on shameless and pathetic virtue signalling that it blinds him to the obvious contradictions in his position.

I could continue the drunken father analogy further but drinking in stadiums were suddenly forbidden two days before the start of the matches. However, that was not the only thing that seemed to break the peace negotiated with the Qatar authorities. Plans by European teams to display the LGBTQ+ rainbow colours came under attack and players who wore these emblems were threatened with punishment if they did not conform. Flags and emblems were also taken from supporters entering the stadium and FIFA seemed to be compliant with this. Gay rights campaigner Peter Tatchell said, “FIFA is now little more than a mouthpiece for the Qatari despots. It is giving cover for a sexist. Homophobic and racist dictatorship.’ Daily Mail 18/12/22.  Infantino, who I believe expected applause from the progressives, was stung by the criticism and reacted with the racist card saying that Europeans should apologise for the past 3000 years history. Not withstanding the fact that there wasn’t a Europe at that time he defended the Qatar government and FIFA by charging opponents with Hypocrisy.

The view from Qatar was, you knew what you were getting into when you first took the money. You knew that we maintain a strict religious theocracy under Sharia law  and you knew that we would defend our beliefs against Western decadence. They also, pointed out that, “Many here in Qatar are asking why there wasn’t a similar uproar when Russia hosted the World Cup in 2018 or when China hosted the Olympics in 2008; both countries with their own human rights issues.” (BBC News 23/11/22). It is a hard question to answer especially when you consider the questionable  FIFA bidding process. There was another group of less than heroic’ standing, defending the rights of the alphabet soup community, who caved in to the pressure from the Qatar Government. As reported by Forbes, “The national soccer federations of the Netherlands, England, Wales, Belgium, Switzerland, Germany and Denmark issued a joint statement announcing they are backing off, stating they did not want to put their players “ in a position where they could face sporting sanctions.” (Forbes 21/11/22) Meanwhile the families of the Iranian Team were reportedly under threat because the team didn’t sing the national anthem in protest against the death of Mahsa Amini.  The lesson to take away from this is that it is easy to ‘take the knee’ in a Western country where there is no consequence for doing so, than in countries like Qatar and Iran.

What do we take from the speech and events surrounding the World Cup. First of all, the very bad news is that Infantino is making a bid to remain as FIFA President until 2031. That means a constant flow of corruption, contradictory policies and meaningless self congratulatory virtue signalling. Secondly, this will be matched by sporting administrators and over paid sports men and women. (Assuming we still recognise biological men and women in 2031). Infantino is your quintessential example of someone who see’s a role beyond that in the job description. He see’s himself as a major political force and is prepared to compromise his responsibilities to football to further his ambition. This is a modern trend and is borne out of lack of a sense of duty toward those for whom you are responsible and a lack of humility. Three thousand years ago, Infantino would know that the Greeks had a god named Hubris who represented arrogance, lack of humility, wanton violence etc. What he seems to have forgotten is that this god is followed by another called Nemesis, the goddess of fate and retribution. Perhaps, the goddess Nemesis would save us from an extended term  of President  Infantino and allow him to be replaced by someone who has the best interests of the game at heart instead of the corruption, arrogance and virtue signalling of  Gianni Infantino.

Sources

Dan Hough, 20/11/22, The Washington Post, Qatar is taking the heat for FIFA corruption, washingtonpost.com/politics/2022/11/20/fifa-qatar-world-cup-corruption/

Sean Ingle, 19/11/22, The Guardian, ‘I feel gay, disabled … like a woman too!’: Infantino makes bizarre attack on critics, theguardian.com/football/2022/nov/19/fifa-gianni-infantino-world-cup-qatar

Shanti Das, 13/11/22, The Guardian, Anger over Fifa president’s ‘stick to football’ letter to World Cup teams, theguardian.com/football/2022/nov/13/anger-over-fifa-presidents-stick-to-football-letter-to-world-cup-teams

Shaimaa Khalil, 23/11/22, BBC News, World Cup 2022 armband row: ‘Two parallel universes on human rights controversies’, bbc.co.uk/sport/football/63718164

Siladitya Ray, 21/11/22, Forbes Business, World Cup: Teams Will Not Wear Rainbow Armbands After FIFA Threatens Yellow Cards, www.forbes.com/sites/siladityaray/2022/11/21/world-cup-teams-will-not-wear-rainbow-armbands-after-fifa-threatens-yellow-cards/?sh=511d320e4bd3

Very recently I wrote an essay on ESG and the attempt to politicise the business community using investors funds as a weapon. (E.S.G.) In that essay I exhorted everyone to use common sense, with a dash of scepticism, when receiving information on important issues. My woke sensors were activated when I heard of an article entitled, What a pregnancy actually looks like before 10 weeks – in pictures and they were fully deployed when I heard it was sourced from The Guardian. I looked up the article and the first thing I noticed was a curiously worded subtitle. See if you can spot what caught my eye. “In 13 US states, abortion is banned even in the earliest stages of pregnancy. But we rarely see what such tissue really looks like.” (The Guardian 19/10/22) I will come back to that or, ‘circle back’ as the late Jen Psaki would often say. Reading on, I was struck by a number of photographs which showed a cotton wool like substance in Petrie dishes, an example and explanation below.

“This image shows the gestational sac of a nine-week pregnancy. This is everything that would be removed during an abortion and includes the nascent embryo, which is not easily discernible to the naked eye.” Dr. Joan Fleischman

For clarity, I should advise that Dr Joan Fleischman is part of a pro-abortion group called the MYA Network, ‘which is made up of a network of clinicians and activists, who show what tissue in the first nine weeks of pregnancy actually looks like.’ (The Guardian 19/10/22)

The thing that struck me about the subtitle and large parts of the MYA supplied data was the constant reference to ’tissue’ when we would normally be talking about the embryo or, the foetus.  To be fair there is a reference to the aborted embryo in the above picture but it, ” … is not easily discernible to the naked eye” I don’t understand why that means it can’t be shown in the photograph by enlarging it to scale. This is important because the thrust of the article is to depersonalise and dehumanise the foetus. What we are shown is not, “everything that would be removed during an abortion” but some innocuous cotton wool like material that has no potential for life.  There is no attempt to argue against the above chart which shows the development of a child but by using the artifice of showing only, the tissue, seeks to persuade people that there is no moral or, criminal argument to be made against them.

It might be argued by MYA that the pictures showing the foetal development and the one opposite are misleading but on the basis of the contrived Guardian article I would prefer to take my information from the National Health Service. (NHS)

Your baby at 10 weeks: The ears are starting to develop on the sides of your baby’s head, and the ear canals are forming inside the head. If you could look at your baby’s face, you’d be able to see an upper lip and 2 tiny nostrils in the nose. The jawbones are developing and already contain all the future milk teeth. The heart is now fully formed. It beats 180 times a minute – that’s 2 to 3 times faster than your own heart. The baby is making small, jerky movements that can be seen on an ultrasound scan. NHS

In addition to the words that are absent from the article we need to look at the ones that are used. In the picture that purports to show ‘everything that would be removed during an abortion’ the invisible embryo is described as ‘nascent’. I will leave you to look up your own definition but one that will serve for this article is as follows: nascent, coming into existence and beginning to display signs of future potential. Is Dr Fleischman arguing that there is no potential for life before nine weeks? If so, she seems to be in dispute with the American College of Obstetricians and Gynaecologists who, in their Seventh Edition of Your Pregnancy and Childbirth book, ACOG states that, “The first eight weeks of pregnancy are a time of rapid growth for your baby. Most of the organs have begun to form during these weeks. By the end of the eighth week, the baby – called an embryo at this stage – is about half an inch long.” 

The main part of my criticism of this article is not that it is pro-abortion but that it is basically dishonest. There are arguments for both sides of the debate, but they should strive to be factual and honest. In this case, meanings are hidden, and facts distorted by slight of hand. If the intention was to reduce the stress of a mother seeking advice, she shouldn’t have to pick her way through this article like a lawyer vetting a contract.  I had thought of entitling this piece ‘Lies, Dam Lies and the Guardian but I think that the title I chose reflects the modern trend of redefining direct language with obscure words, the meaning of which can be changed at will. With this in mind, I will leave you with the same sentence and sentiment with which I closed my essay on ESG. I am not saying that we should review the arguments promoted by the Flat Earth Society, but we should apply the same level of scepticism to those that make decisions, on our behalf, in the name of the experts. 

Sources

Poppy Noor, 19/10/22, The Guardian, What a pregnancy actually looks like before 10 weeks – in pictures, .theguardian.com/world/2022/oct/18/pregnancy-weeks-abortion-tissue

nhs.uk/pregnancy/week-by-week/1-to-12/10-weeks/

American College of Obstetricians and Gynaecologists, Your Pregnancy and Childbirth book, 7th edition

I had heard about the so-called sustainable investment ratings, otherwise referred to as the Environmental, Social and Governance (ESG) rating, in general discussions about investment strategy. However, I had assumed that this was something that the Americans had invented to make their pensioners even more miserable amongst rising prices, rising crime and woke policies. Imagine my concern when I came across an article in the London FT headed, ESG Ratings Face Examination in Fight Against Greenwashing ( FT 28/05/22). It seems that it is not just an American phenomenon after all. In essence, the aim of an ESG investment is not to maximise shareholders returns but to take a more holistic view and to invest in companies that maximise stakeholders returns.

The ESG strategy means investing in companies that score highly on environmental and societal responsibility scales as determined by third-party, independent companies and research groups. “At its core, ESG investing is about influencing positive changes in society by being a better investor,” says Hank Smith, Head of Investment Strategy at The Haverford Trust Company. (Forbes Advisor)

If we lay aside the aims of ESG, as stated by Hank Smith, the thrust of the FT article was to look at the question of the quality and integrity of the ‘third-party, independent companies and research groups’ as mentioned above. The concern is that some rating agencies are providing false or, suspect data to promote companies with ratings that are misleading to investors. This is known as greenwashing. As Sacha Sadan says, “People do get surprised when they see certain stocks (such as oil and gas) in a portfolio that’s an ESG best in class … and that’s why, as a consumer regulator looking after people, we have to make sure that is correct.” (FT 28/05/22) Various government agencies and the EU are getting involved to put some standards and structure into this unregulated area with particular focus on ‘transparency, conflicts of interest and requirements to demonstrate the validity of metrics’.  Before we get carried away with even more regulation, perhaps we should take note of Klasa’s observation about rating agencies in her article.

Rating agencies attracted controversy in the aftermath of the 2009 financial crisis when they gave prime ratings to highly risky mortgage-backed securities that ultimately blew up and tanked global markets. A 2011 US government enquiry concluded that the leading, “credit rating agencies were key enablers of the financial meltdown. (FT 28/05/22)

What the FT article is saying is that everyone’s definition on what is an acceptable ESG rating, is a matter of the agencies or in house departments own world view. Given that amount of ambiguity, would you buy a used car from these people?

What are the basic factors that rating agencies take into account to produce an ESG score. In the first instance we have already mentioned the transition from shareholder to stakeholders return as a measure of a company’s success. According to Forbes, the stakeholders are ‘workers, communities, customers, shareholders and the environment.’ ESG proponents would argue that a positive drive to satisfy stakeholders in a company would show that it is well run and a good bet for investors. To assist in this evaluation Forbes has defined the objectives that would promote a good ESG score in the three categories. In summary, under the Environmental heading the question is, what environmental impact does the company have.  This may be measured by its carbon footprint, pollution or practises that may impact on the climate. On the Social front, the company is measured on its social impact both within and outside of the company. Therefore, are it’s hiring policies diverse and inclusive. Does it support progressive groups like BLM and LGBQIA within its employees and the broader community. Governance looks at how the management is structured. Is it diverse and representative? Does it drive progressive change? I am sure that my summary can be improved on by those promoting the ESG approach but it must be obvious that, in the main, these are political objectives.  The assumption is that by driving companies to achieve these social goals then you achieve the twin objectives of a more progressive community and a more profitable business. To say that most of these objectives are subjective understates the case and to assume that becoming a good ESG rated company makes you a profitable investment lacks logic. One of the biggest supporters of ESG is Blackrock and I mention it not because it is the only company promoting ESG but because its CEO, Larry Fink, is the most vocal.  Mr Fink has been very vocal in his opposition to fossil fuels but has made a huge wager on the Chinese economy by investing in China’s Mutual

Fund Industry. The graph to the left shows that China’s Greenhouse Gas emissions exceed that of all developed nations combined (BBC 07/05/21). Does this not conflict with the E for Environmental part of the ESG policy he promotes? Does the fate of Muslims under the Chinese regime fit with the S for Social inclusiveness and equity segment? As for G for Governance, who knows how the Mutual Funds are managed in this respect. As reported in the Times, “BlackRock’s silence on China’s regime is particularly jarring because of its evangelical promotion of environmental, social and governance (ESG) standards. “A company cannot achieve long-term profits without embracing purpose and considering the needs of a broad range of stakeholders,” Fink said in his latest annual letter to chief executives. (The Times, 30/08/20) So far, we have a political progressive policy, that cannot be universally defined, which is hugely subjective and as we have seen, very selective and open to corruption. But is it successful as an investment strategy? To be fair, it is a little too early to evaluate with any certainty. However, logic would suggest that if our only objective was shareholder return, then it would seem that by excluding non-progressive companies, that the pool of potential profitable investments is reduced. It may be a little mischievous of me to note that the people who would make investment choices on your behalf have just achieved a new investment record. As reported by Bloomberg, Blackrock managed funds lost $1.7 trillion of its clients’ money since the beginning of the year — the largest sum ever lost by a single firm over a six-month period. Another casualty was the investment company that manages Harvard University’s portfolio which made a loss last year. In a response to questions about the loss, one of the points made by HMC was that it restricted the type of investment it made and thus reduced the possibility of a positive return.  “A number of institutional investors leaned into the conventional energy sector, through either equities or commodity futures, adding materially to their total return. HMC did not participate in these returns given the University’s commitment to tackling the impacts of climate change, supporting sustainable solutions, and achieving our stated net Zero goals.” (HMC, October2022) The concept of shareholder returns is a simple and well-established concept and is easily measured. Public policy is made by elected governments and is enforced by law where interested parties can make their case. Thus, there is a large volume of employment, environmental and social law which a company must abide by. What ESG attempts to do is push a social and political policy on companies by using investors funds to vote progressive policies at AGM’s and bar access to investment by downgrading ESG scores for non-favoured companies. By doing this, Blackrock and its associates by passes public review and attempt to effect political change by the back door. If we return to the attempts to regulate this train wreck, we might extend the list of actors of whom we should be nervous. As Klas pointed out in her article, the rating agencies have a very poor record on ‘transparency, conflicts of interest and requirements to demonstrate the validity of metrics.’ The same complaint can be made of the ideologically driven green decisions made by western governments which has resulted in the energy crisis. Neither big investment companies nor governments can be trusted to regulate in favour of the man on the Clapham Omnibus.

I hope that I have brought the discussion up to date but even though I have described my problems with the actors promoting this ideology I have not stated my basic opposition to it in principle. The current status of this debate is how do we regulate the ESG policy, but I take issue with it at a more fundamental level.  In my own case I have invested in a private pension after agreeing a risk factor, targeted net income and an appropriate portfolio with my pension advisor. As far as I am concerned the objective is to give me the highest income possible commensurate with the agreed parameters.  I have no contact or contract with Blackrock or with any other investment vehicle and yet they use my funds to promote progressive policy. How can that be legal? Rather belatedly, this challenge has been taken up in the US.

Nineteen state attorneys general wrote a letter last month to BlackRock CEO Laurence D. Fink. They warned that BlackRock’s environmental, social and governance investment policies appear to involve “rampant violations” of the sole interest rule, a well-established legal principle. The sole interest rule requires investment fiduciaries to act to maximize financial returns, not to promote social or political objectives. (WSJ 6/09/22)

We have become so used to everyone else resolving our perceived problems that we have surrendered our rights and responsibilities as individuals. We listen to that seductive voice that says, don’t worry we are the experts, and we know what’s best for you.  However, the reputation of ‘experts ‘as a class has suffered some damage over the past few years. For example, those experts who didn’t see or, benefited from, the 2009 crash. Those experts who claimed to be ‘the science’ but closed down opposing opinions during Covid. Those who supported the Tavistock Institute and their like, supplanting ideology for science and in the process doing great harm to children. We have the prospect of a cold winter and sky-high energy prices due to governments lack of any common-sense strategy in relation to green policies. The list goes on, but the message is the same. Perhaps the experts and professional classes are not so expert in matters that exist in the real world.

ESG is one example where an unpopular social change is introduced via the backdoor and suddenly, we are financing something that we fundamentally disagree with. What can we do about it? The first thing to do is to recognise that it is happening all around us. I used to be very sceptical about conspiracy theories, but lately they have an unfortunate habit of being wholly or partly true. We only need to think of the origins of Covid and how the idea that it began in the Wuhan Institute of Virology was fiercely contended for so long. I am not saying that we should review the arguments promoted by the Flat Earth Society, but we should apply the same level of scepticism to those that make decisions on our behalf in the name of the experts.

Sources

Adrienne Klasa, 28/05/22, Financial Times, ESG Ratings Face Examination in Fight Against Greenwashing, p15

E. Napoletano, Benjamin Curry, no date, Forbes Advisor, www.forbes.com/advisor/investing/esg-investing/

Report: China emissions exceed all developed nations combined, 07/05/21, BBC, bbc.co.uk/news/world-asia-57018837

Jed Rubenfeld and William P. Barr, 6/09/22, Wall Street Journal Opinion, ESG Can’t Square With Fiduciary Duty

,N.P. “Narv” Narvekar,October 2022,Harvard Management Company,/finance.harvard.edu/files/fad/files/fy22_hmc_letter.pdf

Emma Dunkley, 30/08/20, The Times, Larry Fink, thetimes.co.uk/article/larry-fink-blackrocks-ethical-investment-evangelist-kowtows-to-beijing-wqt6hs3jp

I had been following the case of the January 6th rioters/protesters in the US who had been arrested but held on remand for, in some cases, over seven months in conditions that would not be accepted for convicted criminals. In this case the presumption of innocence seems to have been suspended for purely political reasons. It was with these thoughts in mind that I saw that a conviction for rape had been quashed in the High Court, in the UK, after the discovery of new evidence that was not put before the Jury at the original Trial in 2013.  The reason for my interest was that the  issue of consent was at the centre of the prosecution’s case which meant that the Jury had to make it’s decision on whose evidence it found more believable. The accuser presented an edited number of posts which supported her claim that there was little contact between her and the accused after sex. The accused, Danny Kay, asked the prosecution to assist in recovering the deleted messages but this wasn’t done and he was sentenced to four and a half years in prison. It was his sister-in-law who discovered the backup files which were the basis for his successful appeal. The Appeal Judge, Mr Justice James Goss said: “We have come to the conclusion that, in a case of one word against another, the full Facebook message exchange provides very cogent evidence both in relation to the truthfulness and reliability of (the woman) … and the reliability of (Mr Kay’s) account and his truthfulness.” (BBC 22/12/20)  Mr Kay was released from prison after serving two years of his sentence. Before we get to the question of presumption of innocence I would like to comment on the police and prosecution’s lack of competence in this case. Mr Kay had warned them that the evidence on which they based their case was misleading and edited but with all the technical expertise at their disposal it was the defendants sister-in-law who found the  evidence that was so compelling to the Court of Appeal. Mr Kay’s lawyer said, “Danny’s case is slightly unusual because all reasonable lines of inquiry don’t necessarily seem to have been followed,” (BBC 5/1/18). You don’t say!

Derbyshire Police said it has referred its investigation to an independent regional review team to “ensure lessons are learned” and “would welcome the opportunity to discuss the situation with Mr Kay.”

The concept of presumed innocence goes far back into history and has many sources. In it’s widest sense François Quintard-Morénas can see elements of the doctrine as far back as the  ancient Babylonian Code of Hammurabi ; the ancient Greeks and Roman Law but he claims that it was the 14th. Century French jurist, Johannes Monachus, who first coined the phrase, “innocent until proved guilty.” This concept has made it into the Universal Declaration of Human Rights, as follows.

The Universal Declaration of Human Rights, article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

Having served prison time and with his reputation permanently damaged Mr. Kay sought compensation for the unsound verdict. As his lawyer pointed out, “the government had not properly considered how the woman’s manipulation of the messages undermined her credibility and the context of the discussions.” (BBC 01/08/21) As an aside I would have said that his conviction was also partly due to the prosecution not doing it’s job. This was turned down and the reasoning is interesting and I have copied the rationale from the BBC report as follows.

Lady Justice Macur said the retrieved messages “did not explicitly or implicitly discuss the act of sexual intercourse or the issue of consent, nor establish that the nature of the ongoing interaction was inconsistent with an offence of rape”. While noting Mr Kay “has suffered greatly because of his conviction and imprisonment”, she said his case did not meet the requirements for an award to be made. “For compensation to be payable, the newly discovered fact admitted into the appeal proceedings must positively disprove the commission of the offence beyond reasonable doubt, and not merely undermine the safety of the conviction,” she said. BBC 1/08/21

What Lady Justice Macur is saying is that the original case was found to be unsafe because evidence undermining the credibility of the accuser was withheld. In this case the question of whether consent was given was the central issue and it was decided on the basis of who the Jury believed. However, to receive compensation a new and higher bar has to be met. Not only has Mr Kay to prove that the prosecution did not prove it’s case but Mr Kay has to prove his innocence. 

If we believe that an accused is innocent until proved guilty we must believe that Mr Kay is innocent. It is for the prosecution to prove his guilt not for him to prove his innocence. The finding of Lady Justice Macur might lead others to say that he only got off on a technicality, the ‘no smoke without fire’ argument. The reality in this case was that the person making the accusation, knowingly doctored evidence and lacked credibility yet, it is Mr Kays name that is in the news. It is Mr Kay who served prison time on the basis of the accusers tainted evidence and the incompetence of  the authorities. It is Mr Kay who has to prove his innocence, even though validated by the Court of Appeal, to obtain compensation.

There are principals in law and civilisation that are self evidentially right and fair yet they are constantly under threat, never more so than now. They are being eroded everyday and Mr Kay’s experience is a case in point. He is innocent of the crime of rape but  still guilty in Lady  Justice Macur’s court room and his good name has suffered by her decision. His accuser doesn’t have these problems as she is protected by law from being identified. I can understand the reasons for this but shouldn’t presumption of innocence mean that he should have the same protection? We could also take the case of Zachary Benn who was held on remand in prison for six months on the charges of rape, sexual assault, blackmail, robbery, and possession of a bladed article. A desperate character indeed but the prosecution offered no evidence when it went for trial. The Recorder observed that it was unsatisfactory for the authorities to enter a plea of nolle prosequi on the date of the trial whilst the defendant was held in prison for six months. According to the Manchester Evening News “the complainant had admitted to telling untruths and further enquiries by the police and fire service had uncovered more untruths.” Even though the claimant held to her story, the police couldn’t support a prosecution. Note the language in the context of this essay. The claimant told “untruths”, otherwise know as lies and,” …it was deemed there was not a realistic chance of a conviction.” rather than, Mr Benn had been falsely accused and he is innocent under the legal concept of presumption of innocence.

The two examples given above relate to accusations of rape where there is no neutral witness or, forensic evidence to support a charge either way. It is not intended to be an assault on the #Me To movement or to be a deterrent to men or women bringing such cases to law. What I am trying to demonstrate is that there is a fundamental principle of law that you expect to be the guiding principle in any case where someone makes an accusation against you or someone you care for.

Mr Kay expressed his shock at the proceedings which led to his imprisonment, “It was devastating for a system that you trust to let you down like that … I had complete faith in it, I trusted that the truth would come out in the trial and it didn’t.” (BBC 05/01/18)

 You might take the view that mistakes happen that these cases are rare and it is better for the community to call out the many and suffer a small number of casualties than the other way around. The problem is that these are everyone’s protection and in these days of partisanship you too might find yourself condemned in the court of  public opinion and subsequent conviction in a court of law. The Crown Prosecution Service conducted a review of rape cases current in 2018 and found that in 47 cases the prosecution had withheld or, disclosed late, exculpatory evidence which could aid the defence.  Perhaps not so few casualties after all. Meanwhile, in the ‘Land of the Free’ at the Senate hearing to approve President Biden’s nomination for the position of Assistant Secretary of Education for Civil Rights, Ms Lhamon was asked whether she had tweeted that enforcing presumption of innocence and due process on college campus’s would result in more sexual abuse? She replied, “I think what I said in the tweet, so, the regulation permits students to rape and sexually harass with impunity.” (Newsmax 4/08/21) Ms Lhamon co authored the ‘Dear Colleague Letter’ which forced over 500 colleges to reduce defendant student rights when accused of discriminatory harassment purportedly forbidden under Title IX. This resulted in over 700 civil actions brought by students who were refused basic constitutional and Human Rights by the college equivalents of the the 17th. century Star Chamber.

As mentioned in my opening paragraph, the erosion of rights are not limited to sexual crimes but to those involved in the January 6th. riots and many other cases. Once basic rights are seen as expendable in one case then infection soon spreads to the extent that the President of the US can issue an executive order that he knows is unconstitutional. Doesn’t the end justify the means? Yes there is always collateral damage but you can’t make an omelette without breaking eggs, can you? Even if you don’t see the inherent unfairness and injustice of this position the expansion of this attack on basic human rights will eventually engulf you and yours.

“It does not feel real to me and I don’t have closure. My life will not be the same again. … When I leave here I will not get my life back.” MEN 21/6/21

The above statement could have been made by any number of victims of crime but it was made by Mr Benn, who had spent six months in prison, falsely accused of rape.

Sources

Rape conviction quashed over new Facebook evidence – BBC News 22/12/20

Danny Kay: Rape conviction man ‘let down’ by system – BBC News 5/01/18

Danny Kay: Man cleared of rape loses High Court compensation bid – BBC News   1/08/21

Kavanaugh, Ford and the History of Being ‘Presumed Innocent’ | Time 5/10/18

Man charged with rape is found not guilty and walks free from court – Manchester Evening News 21/06/21

Catherine Lhamon’s Nomination to Lead Civil Rights in the Department of Education Is Dead | Newsmax.com 4/08/21