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.

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Why the Liberal Democrats by-election surge is not all it seems

The Lib Dems chalked up impressive results in Stoke and Copeland. But just how much of a fight back is it?

By the now conventional post-Brexit logic, Stoke and Copeland ought to have been uniquely inhospitable for the Lib Dems. 

The party lost its deposit in both seats in 2015, and has no representation on either council. So too were the referendum odds stacked against it: in Stoke, the so-called Brexit capital of Britain, 70 per cent of voters backed Leave last June, as did 62 per cent in Copeland. And, as Stephen has written before, the Lib Dems’ mini-revival has so far been most pronounced in affluent, Conservative-leaning areas which swung for remain. 

So what explains the modest – but impressive – surges in their vote share in yesterday’s contests? In Stoke, where they finished fifth in 2015, the party won 9.8 per cent of the vote, up 5.7 percentage points. They also more than doubled their vote share in Copeland, where they beat Ukip for third with 7.3 per cent share of the vote.

The Brexit explanation is a tempting and not entirely invalid one. Each seat’s not insignificant pro-EU minority was more or less ignored by most of the national media, for whom the existence of remainers in what we’re now obliged to call “left-behind Britain” is often a nuance too far. With the Prime Minister Theresa May pushing for a hard Brexit and Labour leader Jeremy Corbyn waving it through, Lib Dem leader Tim Farron has made the pro-EU narrative his own. As was the case for Charles Kennedy in the Iraq War years, this confers upon the Lib Dems a status and platform they were denied as the junior partners in coalition. 

While their stance on Europe is slowly but surely helping the Lib Dems rebuild their pre-2015 demographic core - students, graduates and middle-class professionals employed in the public sector – last night’s results, particularly in Stoke, also give them reason for mild disappointment. 

In Stoke, campaign staffers privately predicted they might manage to beat Ukip for second or third place. The party ran a full campaign for the first time in several years, and canvassing returns suggested significant numbers of Labour voters, mainly public sector workers disenchanted with Corbyn’s stance on Europe, were set to vote Lib Dem. Nor were they intimidated by the Brexit factor: recent council by-elections in Sunderland and Rotheram, which both voted decisively to leave, saw the Lib Dems win seats for the first time on massive swings. 

So it could well be argued that their candidate, local cardiologist Zulfiqar Ali, ought to have done better. Staffordshire University’s campus, which Tim Farron visited as part of a voter registration drive, falls within the seat’s boundaries. Ali, unlike his Labour competitor Gareth Snell and Ukip leader Paul Nuttall, didn’t have his campaign derailed or disrupted by negative media attention. Unlike the Tory candidate Jack Brereton, he had the benefit of being older than 25. And, like 15 per cent of the electorate, he is of Kashmiri origin.  

In public and in private, Lib Dems say the fact that Stoke was a two-horse race between Labour and Ukip ultimately worked to their disadvantage. The prospect of Nuttall as their MP may well have been enough to convince a good number of the Labour waverers mentioned earlier to back Snell. 

With his party hovering at around 10 per cent in national polls, last night’s results give Farron cause for optimism – especially after their near-wipeout in 2015. But it’s easy to forget the bigger picture in all of this. The party have chalked up a string of impressive parliamentary by-election results – second in Witney, a spectacular win in Richmond Park, third in Sleaford and Copeland, and a strong fourth in Stoke. 

However, most of these results represent a reversion to, or indeed an underperformance compared to, the party’s pre-2015 norm. With the notable exception of Richmond’s Sarah Olney, who only joined the Lib Dems after the last general election, these candidates haven’t - or the Lib Dem vote - come from nowhere. Zulfiqar Ali previously sat on the council in Stoke and had fought the seat before, and Witney’s Liz Leffman and Sleaford’s Ross Pepper are both popular local councillors. And for all the excited commentary about Richmond, it was, of course, held by the Lib Dems for 13 years before Zac Goldsmith won it for the Tories in 2010. 

The EU referendum may have given the Lib Dems a new lease of life, but, as their #LibDemFightback trope suggests, they’re best understood as a revanchist, and not insurgent, force. Much has been said about Brexit realigning our politics, but, for now at least, the party’s new normal is looking quite a lot like the old one.