The ones that got away

What about the gang members not convicted of the murder of Stephen Lawrence?

Everyone knows who killed Stephen Lawrence. It was a gang of vile thugs, two of whom were convicted of murder yesterday, on the basis of forensic evidence. Everyone thinks they know who the other thugs were in what the criminal law rightly classes as a "joint enterprise". Many even know them by name and would recognise their photographs. It surely can only be a matter of time before the other ones are prosecuted and convicted.

But what do we actually know? As it stands there appears to be no forensic evidence linking any of the other individuals to the horrific crime of Stephen Lawrence's murder. There is also no eye witness evidence which can be put before a court. As the Court of Appeal pointed out regarding the original prosecution when quashing the acquittal of Gary Dobson so that he could again stand trial:

Following their arrests, Knight and Neil Acourt were charged with the murder of Stephen Lawrence, after each of them was identified on identification parades by Duwayne Brooks as part of the attacking group of white youths. However the reliability of these identifications was called into serious question. On any view Brooks had found himself in a frightening situation, with only a brief opportunity for making a correct identification at night, under artificial light, in a desperately fast-moving incident.

Moreover, after he had identified Knight, he himself confirmed to an independent police officer that he had not actually seen the faces of any of the attacking group, but had been given a description of them before he took part in the parades. Accordingly, the prosecution of Knight and Neil Acourt was discontinued.

As to Dobson, he was never identified by anyone. [...]

The evidence of Brooks was crucial to the success of the prosecution, but as we have indicated, it was flawed. The question whether his evidence should be placed before the jury was examined in detail at a voir dire. Brooks gave evidence on three days. After hearing argument, Curtis J concluded that his evidence of identification of any of those involved in the attack on Stephen Lawrence was inadmissible. The judgment was impeccable, the reasoning clear, and the conclusion unavoidable.

And so we have a gap. On one hand, there are three alleged murderers who many sensible and informed people believe with complete certainty were part of the gang which attacked Lawrence. On the other hand, there seems -- at least currently -- to be no available evidence to warrant any prosecution, let alone convictions beyond reasonable doubt.

This is the sort of situation which usually cannot hold. If the matter cannot be tried in a court of law, then it seems it will be tried in the so-called court of popular opinion. But the problem with those who "everybody knows" are guilty is that they sometimes are not, at least not of the crime being alleged. Many miscarriages of justice and media sensations have been on the misconceived basis that they "must" be guilty. Examples do not even have to be listed; we all know them.

Unless there is new evidence -- possibly either in forensic form or a confession by one of the two now convicted murderers -- then the dreadful situation will persist of there not being any further prosecution of the others widely suspected of killing Lawrence. No tabloid campaign or new judicial inquiry can change this stark fact.

Had the police conducted a competent initial murder inquiry in the days after Lawrence's murder, there would perhaps be other evidence. But for whatever bad reason the police did not do so. Such helpful evidence cannot now be contrived, and there cannot be any prosecution without evidence. Mere certainty, however well-grounded and widespread, is not enough. The Crown has to prove guilt beyond reasonable doubt, and popular opinion is not admissible in court.

So what should happen to those suspected of murder, but still at large? Should there be no adverse comments? No negative publicity? Should everyone just hold their tongue? Well, without the prospect of proceedings, there is no "due process" to be respected, as there is no determination of guilt in the offing. In that way, there is no legalistic objection to popular opprobrium. It is not sub judice.

However, one day there could be new evidence. There may be a further advance in forensic science which would affect this case. Or there could be a confession implicating another. In those circumstances, there would need to be "due process" with the innocence being presumed until guilt is proved. But would that now be really possible? There is no doubt that the defence lawyers of those prosecuted would contend a fair trial would not now be possible; but, as the Court of Appeal showed when quashing Dobson's acquittal, the courts can be robust in saying that trials should go ahead even when there has been bad publicity. But this robustness is not inevitable.

It may be important that we can join the clamour of condemning those who look as if they have evaded justice. Unfortunately, that same clamour can also be exploited to help the culprit escape justice. Accordingly, even when not legally required for a current legal case, the presumption of innocence until proven guilty remains a sensible policy. Those seeking to escape justice really do not need any further help to get away with it.

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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A swimming pool and a bleeding toe put my medical competency in doubt

Doctors are used to contending with Google. Sometimes the search engine wins. 

The brutal heatwave affecting southern Europe this summer has become known among locals as “Lucifer”. Having just returned from Italy, I fully understand the nickname. An early excursion caused the beginnings of sunstroke, so we abandoned plans to explore the cultural heritage of the Amalfi region and strayed no further than five metres from the hotel pool for the rest of the week.

The children were delighted, particularly my 12-year-old stepdaughter, Gracie, who proceeded to spend hours at a time playing in the water. Towelling herself after one long session, she noticed something odd.

“What’s happened there?” she asked, holding her foot aloft in front of my face.

I inspected the proffered appendage: on the underside of her big toe was an oblong area of glistening red flesh that looked like a chunk of raw steak.

“Did you injure it?”

She shook her head. “It doesn’t hurt at all.”

I shrugged and said she must have grazed it. She wasn’t convinced, pointing out that she would remember if she had done that. She has great faith in plasters, though, and once it was dressed she forgot all about it. I dismissed it, too, assuming it was one of those things.

By the end of the next day, the pulp on the underside of all of her toes looked the same. As the doctor in the family, I felt under some pressure to come up with an explanation. I made up something about burns from the hot paving slabs around the pool. Gracie didn’t say as much, but her look suggested a dawning scepticism over my claims to hold a medical degree.

The next day, Gracie and her new-found holiday playmate, Eve, abruptly terminated a marathon piggy-in-the-middle session in the pool with Eve’s dad. “Our feet are bleeding,” they announced, somewhat incredulously. Sure enough, bright-red blood was flowing, apparently painlessly, from the bottoms of their big toes.

Doctors are used to contending with Google. Often, what patients discover on the internet causes them undue alarm, and our role is to provide context and reassurance. But not infrequently, people come across information that outstrips our knowledge. On my return from our room with fresh supplies of plasters, my wife looked up from her sun lounger with an air of quiet amusement.

“It’s called ‘pool toe’,” she said, handing me her iPhone. The page she had tracked down described the girls’ situation exactly: friction burns, most commonly seen in children, caused by repetitive hopping about on the abrasive floors of swimming pools. Doctors practising in hot countries must see it all the time. I doubt it presents often to British GPs.

I remained puzzled about the lack of pain. The injuries looked bad, but neither Gracie nor Eve was particularly bothered. Here the internet drew a blank, but I suspect it has to do with the “pruning” of our skin that we’re all familiar with after a soak in the bath. This only occurs over the pulps of our fingers and toes. It was once thought to be caused by water diffusing into skin cells, making them swell, but the truth is far more fascinating.

The wrinkling is an active process, triggered by immersion, in which the blood supply to the pulp regions is switched off, causing the skin there to shrink and pucker. This creates the biological equivalent of tyre treads on our fingers and toes and markedly improves our grip – of great evolutionary advantage when grasping slippery fish in a river, or if trying to maintain balance on slick wet rocks.

The flip side of this is much greater friction, leading to abrasion of the skin through repeated micro-trauma. And the lack of blood flow causes nerves to shut down, depriving us of the pain that would otherwise alert us to the ongoing tissue damage. An adaptation that helped our ancestors hunt in rivers proves considerably less use on a modern summer holiday.

I may not have seen much of the local heritage, but the trip to Italy taught me something new all the same. 

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear