Rebekah Brooks arriving at the Old Bailey in May 2014. Photo: Getty
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The presumption of innocence: why we shouldn’t assume it was wrong to charge Rebekah Brooks

The gap between accusation and guilt is not a bug in our criminal justice: it’s a necessary and desirable feature.

There are serious questions for the Crown Prosecution Service, some said instantly on hearing Rebekah Brooks found not guilty of conspiring to intercept communications and pervert the course of justice. My heart sank.

It’s not that prosecutors shouldn’t be questioned, or that this is a trivial affair. Charging someone with an offence is always serious, and the CPS must be scrutinised. I’m not against questions, some of which may be serious. What’s not serious is to respond reflexively to any high-profile case, like Brooks’s or that of Nigel Evans earlier this year, as though the mere fact of acquittal shows it was wrong to prosecute in the first place. To think like this is fundamentally to misunderstand criminal justice, and ironically to undermine its most important principle.

I say ironically, because those whose instinct is to attack the CPS often think they’re standing up for the presumption of innocence. People are innocent and entitled to be treated as such, their thinking goes, until proven guilty. So we should be slow to prosecute, ensuring innocent people do not suffer the hell of accusation and being “put on trial”. A unanimous not guilty verdict, the reasoning continues, shows that the CPS has taken a case forward too readily. Prosecutors should be really sure that those they charge will be proven guilty.

But a pretty high bar is already in place. Before prosecuting a case like this, applying the Code for Crown Prosecutors, the CPS must think on the evidence it has that there’s a reasonable prospect of conviction; in other words, that a reasonable jury will probably convict. What it must decide is not whether it thinks the suspect is guilty, or probably guilty – but whether twelve reasonable people will probably feel sure she is, beyond reasonable doubt. 

The distinction is crucial. In common sense terms, the CPS test isn’t as “high” as that applied by a jury. More importantly, what the CPS and juries do is different in nature. Prosecutors don’t determine guilt, and couldn’t do so fairly even if they tried. A fair verdict can, by definition, only be given after prosecution witnesses are cross-examined by others, and their evidence tested at what we call a trial. A true verdict cannot be prejudged.

But in a sense that’s what you’re arguing for if you say the tests for charge and conviction should be more closely aligned – that the CPS must be sure a jury will be sure, for instance. The implication is that we can know in advance of a trial who’s guilty, or nearly so; and that we ought to make this judgment early so the public can rest easy, confident that conviction will follow charge as night follows day. That, though, is the opposite of presuming people innocent. I did once hear it argued that a 100 per cent conviction rate is proof of a truly fair justice system. “Your British Crown persecutes the innocent,” the man said, “while our public prosecutors do their jobs admirably. The courts consistently prove them right, you see?” I think it was in 1984; he spoke for the then People’s Socialist Republic of Albania. That’s where you end, if accusation equals guilt.

To use a technological cliché, the gap between accusation and guilt is not a bug in our criminal justice: it’s a necessary and desirable feature. Once you accept that evidence can be shaken, and that even credible allegations may not ultimately be believed, it’s obvious some cases will result in acquittal so long as the accused are defended robustly and juries make independent decisions after fair hearings. The urge to narrow the gap between charge and verdict is not just wrong, but dangerous.

I can’t be certain it was right to charge Rebekah Brooks. Only those who know what was on the CPS file at the time, or at least followed all the prosecution evidence closely, can offer a serious opinion. But just as it is possible they made a mistake here, it’s equally possible that the CPS wrongly charges people who end up convicted: that, in truth, is the real risk the system is designed to prevent, and which we should worry about more. No verdict, in itself, tells you whether the CPS has acted properly. You can’t see conviction as vindicating a decision to charge, any more than acquittal proves it was wrong. Yet that, surely, is implicit in responding to the mere fact of an acquittal with concern, unsettled by the absence of a reassuring conviction.

The presumption of innocence is inconvenient: its practical working out condemns innocent people to long anguish and changed lives. But the presumption needs, sometimes, to be defended from its would-be defenders. It means we can never be sure anyone’s guilty when they’re accused. For freedom’s sake, let’s not pretend we can.

Photo: Getty
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The new French revolution: how En Marche! disrupted politics

The rise of Emmanuel Macron's party has shattered the accepted wisdom.

Alexandre Holroyd bears many similarities to his new boss, Emmanuel Macron. Like the French president, a former banker, Holroyd started his career in the private sector, at the management consultancy firm FTI. At 39, Macron is the youngest ever French president; Holroyd is nine years younger. Both are strongly pro-European and confident in their common mission.

“The Assemblée Nationale is going to profoundly change,” Holroyd told me, sipping fizzy water in a café near St Paul’s Cathedral in London on 16 June. Two days later, in the second round of the French legislative election, he was elected France’s MP for northern Europe – one of the 11 constituencies for French expats around the world – representing Macron’s party, En Marche! (“Forward!”), which swept to a resounding victory.

“People said, ‘These newbies from En Marche! won’t know what to do,’” he told me. “But they will reflect French society: diverse, equal, with multidisciplinary experiences.”

Macron’s election in May capped a remarkable 12 months for the former economy minister, who left the Parti Socialiste (PS) government to run as an independent candidate. But the real power – of the kind that will allow him to implement the liberal reforms he has promised France – arrived only with the legislative election victory.

En Marche! won 350 of the 577 parliamentary seats, a majority that should enable the president to pass laws in the house easily. And the party did so by selecting younger, more socially diverse candidates than is usual in French politics. As with Holroyd, most of the candidates for En Marche! were running for office for the first time. When the National Assembly reopens, three-quarters of the faces will be new.

The renewal of the political class was one of Macron’s main campaign pledges. “There was this will to stop the two main parties’ [the PS’s and the Républicains’] sectarian obstructionism,” Holroyd said. “The French people are fed up with it.”

Much like a Silicon Valley start-up disrupting a sector of the economy – Uber with taxis, for instance – En Marche! sought to disrupt French politics. Macron launched it in April 2016 as a “political club” while still serving in François Hollande’s government. Three months later, more than 3,000 people attended its first event in Paris. The movement welcomed people of all political parties, allowing them to sign up for free online.

Today En Marche! has more than 240,000 supporters. The party’s main source of funding was individual donations and during the presidential campaign, it raised €6.5m. (Macron also took out an €8m personal loan.)

The rise of Macron and En Marche! has shattered the accepted wisdom of French politics: 39 is too young for a president; one cannot be “neither left nor right”; a career in the private sector does not lead to politics; no one can run for the presidency without the support of a pre-existing party.

Yann L’Hénoret, the director of the documentary Emmanuel Macron: Behind the Rise (available on Netflix), described En Marche! as a “very young” team in which “everyone could give their own view” before Macron had the final say. “Young people are said not to be politically engaged. I saw the inverse, every day, all the time,” L’Hénoret told me.

En Marche! members set up more than 4,000 local committees across France and beyond. Anyone interested in Macron’s project could create one and invite family members, friends and neighbours to take part. “Engage in a march, a conversation, a dinner,” the movement’s website suggested.

The groups then started “the Great March”, a canvassing initiative. “It was like an audit of the society,” said Holroyd. A dual citizen of France and Britain who grew up in west London, he became one of the early marcheurs in July 2016, when he quit his consulting job to set up the London committee. He had never been a member of any party before but Brexit acted as a trigger. “I saw my father’s country tearing itself off from Europe and realised I would regret it if I didn’t contribute to Macron’s project, whose European values I profoundly share.”

A graduate of London’s Lycée Français and Kings College, Holroyd could easily engage with his French expat peers – something that helped him win 70 per cent of the vote in the second round. “The only other party to go and talk to the people was the Front National,” Holroyd said. “The particularity of En Marche! is that many members came from the private sector. It’s exceptional in politics that people in the party have professional experiences. It spoke to many people.”

As En Marche! crowdsourced its candidates, it also ensured that its policies resonated with their locals. During the London “march”, 95 per cent of the participants told the committee that they were expats in the UK because of the economic opportunities here. Macron wants France to be able to entice professionals, too. Financially and socially, his goal can be summed up as: “Make France attractive again.”

Achieving a parliamentary majority has boosted Macron’s hopes of implementing major changes. Reforms may start as soon as this summer, with a liberal reorganisation of France’s rigid labour laws, which currently offer strong protection for workers. “France must invest in the industries of the future,” Holroyd said, quoting his president by the word. “Renewable energy, denuclearisation, ecological transition . . . We must become champions in these fields.”

Despite the scale of the victory, Macron’s team will have noted that the turnout was at a historic low on 18 June – at 42 per cent – suggesting widespread voter apathy. And despite its much-praised social diversity, En Marche! has only one working-class MP for every five middle-class ones. “We are conscious that we’ll be in a difficult situation if, by the end of the mandate, things have not changed for the people who have been left behind for years,” Holroyd said. “Those in outer suburbs, in post-industrial and rural lands.”

If they are to succeed, Macron and his MPs will have to find a way to win them over.

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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