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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Erdogan’s purge was too big and too organised to be a mere reaction to the failed coup

There is a specific word for the melancholy of Istanbul. The city is suffering a mighty bout of something like hüzün at the moment. 

Even at the worst of times Istanbul is a beautiful city, and the Bosphorus is a remarkable stretch of sea. Turks get very irritated if you call it a river. They are right. The Bosphorus has a life and energy that a river could never equal. Spend five minutes watching the Bosphorus and you can understand why Orhan Pamuk, Turkey’s Nobel laureate for literature, became fixated by it as he grew up, tracking the movements of the ocean-going vessels, the warships and the freighters as they steamed between Asia and Europe.

I went to an Ottoman palace on the Asian side of the Bosphorus, waiting to interview the former prime minister Ahmet Davu­toglu. He was pushed out of office two months ago by President Recep Tayyip Erdogan when he appeared to be too wedded to the clauses in the Turkish constitution which say that the prime minister is the head of government and the president is a ceremonial head of state. Erdogan was happy with that when he was prime minister. But now he’s president, he wants to change the constitution. If Erdogan can win the vote in parliament he will, in effect, be rubber-stamping the reality he has created since he became president. In the days since the attempted coup, no one has had any doubt about who is the power in the land.

 

City of melancholy

The view from the Ottoman palace was magnificent. Beneath a luscious, pine-shaded garden an oil tanker plied its way towards the Black Sea. Small ferries dodged across the sea lanes. It was not, I hasten to add, Davutoglu’s private residence. It had just been borrowed, for the backdrop. But it reminded a Turkish friend of something she had heard once from the AKP, Erdogan’s ruling party: that they would not rest until they were living in the apartments with balconies and gardens overlooking the Bosphorus that had always been the preserve of the secular elite they wanted to replace.

Pamuk also writes about hüzün, the melancholy that afflicts the citizens of Istanbul. It comes, he says, from the city’s history and its decline, the foghorns on the Bosphorus, from tumbledown walls that have been ruins since the fall of the Byzantine empire, unemployed men in tea houses, covered women waiting for buses that never come, pelting rain and dark evenings: the city’s whole fabric and all the lives within it. “My starting point,” Pamuk wrote, “was the emotion that a child might feel while looking through a steamy window.”

Istanbul is suffering a mighty bout of something like hüzün at the moment. In Pamuk’s work the citizens of Istanbul take a perverse pride in hüzün. No one in Istanbul, or elsewhere in Turkey, can draw comfort from what is happening now. Erdogan’s opponents wonder what kind of future they can have in his Turkey. I think I sensed it, too, in the triumphalist crowds of Erdogan supporters that have been gathering day after day since the coup was defeated.

 

Down with the generals

Erdogan’s opponents are not downcast because the coup failed; a big reason why it did was that it had no public support. Turks know way too much about the authoritarian ways of military rule to want it back. The melancholy is because Erdogan is using the coup to entrench himself even more deeply in power. The purge looks too far-reaching, too organised and too big to have been a quick reaction to the attempt on his power. Instead it seems to be a plan that was waiting to be used.

Turkey is a deeply unhappy country. It is hard to imagine now, but when the Arab uprisings happened in 2011 it seemed to be a model for the Middle East. It had elections and an economy that worked and grew. When I asked Davutoglu around that time whether there would be a new Ottoman sphere of influence for the 21st century, he smiled modestly, denied any such ambition and went on to explain that the 2011 uprisings were the true succession to the Ottoman empire. A century of European, and then American, domination was ending. It had been a false start in Middle Eastern history. Now it was back on track. The people of the region were deciding their futures, and perhaps Turkey would have a role, almost like a big brother.

Turkey’s position – straddling east and west, facing Europe and Asia – is the key to its history and its future. It could be, should be, a rock of stability in a desperately un­stable part of the world. But it isn’t, and that is a problem for all of us.

 

Contagion of war

The coup did not come out of a clear sky. Turkey was in deep crisis before the attempt was made. Part of the problem has come from Erdogan’s divisive policies. He has led the AKP to successive election victories since it first won in 2002. But the policies of his governments have not been inclusive. As long as his supporters are happy, the president seems unconcerned about the resentment and opposition he is generating on the other side of politics.

Perhaps that was inevitable. His mission, as a political Islamist, was to change the country, to end the power of secular elites, including the army, which had been dominant since Mustafa Kemal Atatürk created modern Turkey after the collapse of the Ottoman empire. And there is also the influence of chaos and war in the Middle East. Turkey has borders with Iraq and Syria, and is deeply involved in their wars. The borders do not stop the contagion of violence. Hundreds of people have died in the past year in bomb attacks in Turkish cities, some carried out by the jihadists of so-called Islamic State, and some sent by Kurdish separatists working under the PKK.

It is a horrible mix. Erdogan might be able to deal with it better if he had used the attempted coup to try to unite Turkey. All the parliamentary parties condemned it. But instead, he has turned the power of the state against his opponents. More rough times lie ahead.

Jeremy Bowen is the BBC’s Middle East editor. He tweets @bowenbbc

This article first appeared in the 28 July 2016 issue of the New Statesman, Summer Double Issue