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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What happens when a president refuses to step down?

An approaching constitutional crisis has triggered deep political unrest in the Congo.

Franck Diongo reached his party’s headquarters shortly after 10am and stepped out of a Range Rover. Staff and hangers-on rose from plastic chairs to greet the president of the Mouvement Lumumbiste Progressiste (MLP), named after the first elected leader of the Democratic Republic of Congo.

Diongo, a compact and powerfully built man, was so tightly wound that his teeth ground as he talked. When agitated, he slammed his palms on the table and his speech became shrill. “We live under a dictatorial regime, so it used the security forces to kill us with live rounds to prevent our demonstration,” he said.

The MLP is part of a coalition of opposition parties known as the Rassemblement. Its aim is to ensure that the Congolese president, Joseph Kabila, who has been president since 2001, leaves office on 19 December, at the end of his second and supposedly final term.

Yet the elections that were meant to take place late last month have not been organised. The government has blamed logistical and financial difficulties, but Kabila’s opponents claim that the president has hamstrung the electoral commission in the hope that he can use his extended mandate to change the rules. “Mr Kabila doesn’t want to quit power,” said Diongo, expressing a widespread belief here.

On 19 September, the Rassemblement planned a march in Kinshasa, the capital, to protest the failure to deliver elections and to remind the president that his departure from office was imminent. But the demonstration never took place. At sunrise, clashes broke out between police and protesters in opposition strongholds. The military was deployed. By the time peace was restored 36 hours later, dozens had died. Kabila’s interior minister, claiming that the government had faced down an insurrection, acknowledged the deaths of 32 people but said that they were killed by criminals during looting.

Subsequent inquiries by the United Nations and Human Rights Watch (HRW) told a different story. They recorded more fatalities – at least 53 and 56, respectively – and said that the state had been responsible for most of the deaths. They claimed that the Congolese authorities had obstructed the investigators, and the true number of casualties was likely higher. According to HRW, security forces had seized and removed bodies “in an apparent effort to hide the evidence”.

The UN found that the lethal response was directed from a “central command centre. . . jointly managed” by officials from the police, army, presidential bodyguard and intelligence agency that “authorised the use of force, including firearms”.

The reports validated claims made by the Rassemblement that it was soldiers who had set fire to several opposition parties’ headquarters on 20 September. Six men were killed when the compound of the UDPS party was attacked.

On 1 November, their funerals took place where they fell. White coffins, each draped in a UDPS flag, were shielded from the midday sun by a gazebo, while mourners found shade inside the charred building. Pierrot Tshibangu lost his younger sibling, Evariste, in the attack. “When we arrived, we found my brother’s body covered in stab marks and bullet wounds,” he recalled.

Once the government had suppressed the demonstration, the attorney general compiled a list of influential figures in the Rassemblement – including Diongo – and forbade them from leaving the capital. Kinshasa’s governor then outlawed all political protest.

It was easy to understand why Diongo felt embattled, even paranoid. Midway through our conversation, his staff apprehended a man loitering in the courtyard. Several minutes of mayhem ensued before he was restrained and confined under suspicion of spying for the government.

Kabila is seldom seen in public and almost never addresses the nation. His long-term intentions are unclear, but the president’s chief diplomatic adviser maintains that his boss has no designs on altering the constitution or securing a third term. He insists that Kabila will happily step down once the country is ready for the polls.

Most refuse to believe such assurances. On 18 October, Kabila’s ruling alliance struck a deal with a different, smaller opposition faction. It allows Kabila to stay in office until the next election, which has been postponed until April 2018. A rickety government of national unity is being put in place but discord is already rife.

Jean-Lucien Bussa of the CDER party helped to negotiate the deal and is now a front-runner for a ministerial portfolio. At a corner table in the national assembly’s restaurant, he told me that the Rassemblement was guilty of “a lack of realism”, and that its fears were misplaced because Kabila won’t be able to prolong his presidency any further.

“On 29 April 2018, the Congolese will go to the ballot box to vote for their next president,” he said. “There is no other alternative for democrats than to find a negotiated solution, and this accord has given us one.”

Diongo was scathing of the pact (he called it “a farce intended to deceive”) and he excommunicated its adherents from his faction. “They are Mr Kabila’s collaborators, who came to divide the opposition,” he told me. “What kind of oppositionist can give Mr Kabila the power to violate the constitution beyond 19 December?”

Diongo is convinced that the president has no intention of walking away from power in April 2018. “Kabila will never organise elections if he cannot change the constitution,” he warned.

Diongo’s anger peaked at the suggestion that it will be an uphill struggle to dislodge a head of state who has control of the security forces. “What you need to consider,” he said, “is that no army can defy a people determined to take control of their destiny . . . The Congolese people will have the last word!”

A recent poll suggested that the president would win less than 8 per cent of the vote if an election were held this year. One can only assume that Kabila is hoping that the population will have no say at all.

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage