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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One of the best things about football? It allows you to hate people

Every team has its hard man. Is there anything more satisfying than booing them?

Football as therapy. Football is therapy. It is hard to sit for two hours in a packed stadium with 50,000 people roaring and shouting and not forget all the boring, niggling things pelting your brain in your everyday life, such as: have I done the washing?

You see these otherwise staid and buttoned-up gents – QCs and consultants and editors – standing up, punching the air for joy, when a goal goes in. Or holding their head in misery and muttering, “F*****’ hell!” if it doesn’t. Would they do that in their office, in their chambers, in their normal, buttoned-up life?

Football is escape. Football is comradeship. You have a tribal loyalty, usually inherited, in which you are part of a greater whole, regardless of your age or background, and you can commune with all ages and classes. Following a football team means you belong.

One other aspect of being a football fan that is rarely acknowledged is hatred. Football allows you to hate someone, express it openly, stand up and boo. There’s a role for baddies in football.

I used to enjoy it at Spurs when they were playing Arsenal. The boos of derision started the moment Tony Adams appeared. And when he put his hand up to let the ref know that there was an offside, which he did all the time – even in the tunnel, probably, or on the coach – the Spurs fans went mad with fury and delight.

The abuse was fairly harmless: perhaps a few donkey noises. I’m sure that Adams was amused but otherwise unaffected by the jeers.

In the Sixties and Seventies, crowds across the First Division greatly enjoyed booing Tommy Smith of Liverpool. He looked like such a pantomime villain, with his dodgy, droopy moustache and pockmarked face. He was the ultimate destroyer, clattering everybody, priding himself on showing no pain, immediately getting up when he’d been thumped. “Tommy Smith was not born,” Bill Shankly used to say. “He was quarried.” We booed him but we all wished that we had him in our team. Did he not eat razor blades for breakfast?

There were so many of them at the time, almost all defenders, who got booed by rival fans the minute their names were read out. Chopper Harris of Chelsea was so named because he chopped them down. Vinnie Jones was sometimes called “Psycho”, but the nickname really belonged to Stuart Pearce.

Nobby Stiles was a weedy little scrap – how could he do any damage? But he did, kicking everyone. Jack Charlton was big and ugly, clumsy and lumpen. He looked like a hard man. That was his job.

You could also hate and boo players who you thought were fancy Dans, too clever by half, such as Cristiano Ronaldo in his Man United days, or players promoted above their talents, such as Gary Neville. Away crowds enjoyed chanting, “If Neville plays for England, so can I!” It wasn’t just that we thought he wasn’t much good, but that he was bossy and self-righteous, the foreman figure, considering himself to be a cut above the rest.

Graeme Souness was definitely a hard man. Though we booed, we could appreciate how clever and cunning he was. The same goes for Roy Keane. Every team used to have a hard man who got stuck in, made agricultural tackles, left his calling card, and other euphemisms for how his job was to scare the hell out of the other team. But where have they all gone? Players don’t kick other players up in the air like they once did. Even our centre-halves are ballplayers now, expected to play nice – John Stones, for example.

They don’t build them like Vinnie Jones any more. They breed them thin and weedy. Lionel Messi, the best player of our age, was known in his younger days as “the Flea”.

However, there is one present-day baddie roaming the Premiership, and he is a centre-forward. He looks like a hard man from an earlier age, with his stage moustache, unshaven jaws, lined face and deep-set eyes, always furious, always about to lash out, always protesting. Let’s hear it for Chelsea’s Spanish striker – Diego Costa. BOOO! BOOO! There, that feels better. 

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 20 October 2016 issue of the New Statesman, Brothers in blood