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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Scottish Labour's defeat to the Tories confirms a political transformation

The defining divide is no longer between left and right but between unionist and nationalist.

It was Scotland where Labour's recovery was supposed to begin. Jeremy Corbyn's allies predicted that his brand of left-wing, anti-austerity politics would dent the SNP's hegemony. After becoming leader, Corbyn pledged that winning north of the border would be one of his greatest priorities. 

But in the first major elections of his leadership, it has proved to be Labour's greatest failure. A result that was long thought unthinkable has come to pass: the Conservatives have finished second (winning 31 seats). For the first time since the 1910 election, Labour has finished third (winning 24). Scottish Labour leader Kezia Dugdale stood on a left-wing platform, outflanking the SNP on tax (pledging to raise the top rate to 50p and increase the basic rate by 1p), promising to spend more on public services and opposing the renewal of Trident. But rather than advancing, the party merely retreated.

Its fate confirms how Scottish politics has been realigned. The defining divide is no longer between left and right but between unionist and nationalist. With the SNP as the only major pro-independence party, the Tories, led by the pugnacious Ruth Davidson, framed themselves as the pro-UK alternative - and prospered. In contrast, Dugdale refused to rule out supporting a second referendum and suggested that MPs and MSPs would be free to campaign for secession. The result was that Scottish Labour was left looking dangerously irrelevant. "Identity politics. Labour doesn't get it," a shadow minister told me. Its socialist pitch counted for little in a country that remains ideologically closer to England than thought. The SNP has lost its majority (denying it a mandate for a second referendum) - an outcome that the electoral system was always designed to make impossible. But its rule remains unthreatened. 

Corbyn's critics will seek to pin the baleful result on him. "We turned left and followed Jeremy's politics in Scotland, which far from solving our problems, pushed us into third," a senior opponent told me. But others will contend that a still more left-wing leader, such as Neil Findlay, is needed. Dugdale is personally supportive of Trident and was critical of Corbyn before his election. Should she be displaced, the party will be forced to elect its sixth leader in less than five years. But no one is so short-sighted as to believe that one person can revive the party's fortunes. Some Corbyn critics believe that a UK-wide recovery is a precondition of recovery north of the border. At this juncture, they say, SNP defectors would look anew at the party as they contemplate the role that Scottish MPs could play in a Westminster government. But under Corbyn, having become the first opposition to lose local election seats since 1985, it is yet further from power. 

In Scotland, the question now haunting Labour is not merely how it recovers - but whether it ever can. 

George Eaton is political editor of the New Statesman.