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.)

Photo: Martin Whitfield
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Labour MP for East Lothian Martin Whitfield: "I started an argument and ended up winning an election"

The former primary school teacher still misses home. 

Two months ago, Martin Whitfield was a primary school teacher in Prestonpans, a small town along the coast from Edinburgh. Then he got into an argument. It was a Saturday morning shortly after the snap election had been called, and he and other members of the local Labour party began discussing a rumour that the candidate would be an outsider.

“I started an argument that this was ridiculous, we couldn’t have a candidate helicoptered in,” he recalls. He pointed out that one of the main issues with the Scottish National Party incumbent, the economist and journalist George Kerevan, was that he was seen as an outsider.

“I kept arguing for an hour and a half and people started gently moving away,” he jokes. “About two days later I was still going on, and I thought enough’s enough.” 

He called Iain Gray, the Scottish Labour veteran, who interrupted him. “He said, 'Right Martin, are you going to put up or shut up?’ So I filled in the forms.

"Then I had to have a very interesting conversation with my wife.”

One successful election campaign later, he is sitting in the airy, glass-roofed atrium of Westminster’s Portcullis House. Whitfield has silver hair, glasses, and wears a Labour-red tie with his shirt. He looks every bit the approachable primary school teacher, and sometimes he forgets he isn’t anymore. 

I ask how the school reacted to his election bid, and he begins “I have”, and then corrects himself: “There is a primary four class I had the pleasure to teach.” The children wanted to know everything from where parliament was, to his views on education and independence. He took unpaid leave to campaign. 

“Actually not teaching the children was the hardest thing,” he recalls. “During the campaign I kept bumping into them when I was door-knocking.”

Whitfield was born in Newcastle, in 1965, to Labour-supporting parents. “My entire youth was spent with people who were socialists.”

His father was involved in the Theatre Workshop, founded by the left-wing director Joan Littlewood. “We were part of a community which supported each other and found value in that support in art and in theatre,” he says. “That is hugely important to me.” 

He trained as a lawyer, but grew disillusioned with the profession and retrained as a teacher instead. He and his wife eventually settled in Prestonpans, where they started a family and he “fought like mad” to work at the local school. She works as the marketing manager for the local theatre.

He believes he won his seat – one of the first to be touted as a possible Labour win – thanks to a combination of his local profile, the party’s position on independence and its manifesto, which “played brilliantly everywhere we discussed it”. 

It offered hope, he says: “As far as my doorstep discussion in East Lothian went, some people were for and against Jeremy Corbyn, some people were for and against Kezia Dugdale, but I didn’t find anyone who was against the manifesto.”

Whitfield’s new job will mean long commutes on the East Coast line, but he considers representing the constituency a “massive, massive honour”. When I ask him about East Lothian, he can’t stop talking.

“MPs do tend to say ‘my constituency’s a microcosm’, but it really is Scotland in miniature. We have a fishing industry, crabs and lobsters, the agricultural areas – the agricultural soil is second to none.” The area was also historically home to heavy industry. 

After his first week in Westminster, Whitfield caught the train back to Scotland. “That bit when I got back into East Lothian was lovely moment,” he says. “I was home.”

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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