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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In the 1980s, I went to a rally where Labour Party speakers shared the stage with men in balaclavas

The links between the Labour left and Irish republicanism are worth investigating.

A spat between Jeremy Corbyn’s henchfolk and Conor McGinn, the MP for St Helens North, caught my ear the other evening. McGinn was a guest on BBC Radio 4’s Westminster Hour, and he obligingly revisited the brouhaha for the listeners at home. Apparently, following an interview in May, in which McGinn called for Corbyn to “reach out beyond his comfort zone”, he was first threatened obliquely with the sack, then asked for a retraction (which he refused to give) and finally learned – from someone in the whips’ office – that his party leader was considering phoning up McGinn’s father to whip the errant whipper-in into line. On the programme, McGinn said: “The modus operandi that he [Corbyn] and the people around him were trying to do [sic], involving my family, was to isolate and ostracise me from them and from the community I am very proud to come from – which is an Irish nationalist community in south Armagh.”

Needless to say, the Labour leader’s office has continued to deny any such thing, but while we may nurture some suspicions about his behaviour, McGinn was also indulging in a little airbrushing when he described south Armagh as an “Irish ­nationalist community”. In the most recent elections, Newry and Armagh returned three Sinn Fein members to the Northern Ireland Assembly (as against one Social Democratic and Labour Party member) and one Sinn Fein MP to Westminster. When I last looked, Sinn Fein was still a republican, rather than a nationalist, party – something that McGinn should only be too well aware of, as the paternal hand that was putatively to have been lain on him belongs to Pat McGinn, the former Sinn Fein mayor of Newry and Armagh.

According to the Irish News, a “close friend” of the McGinns poured this cold water on the mini-conflagration: “Anybody who knows the McGinn family knows that Pat is very proud of Conor and that they remain very close.” The friend went on to opine: “He [Pat McGinn] found the whole notion of Corbyn phoning him totally ridiculous – as if Pat is going to criticise his son to save Jeremy Corbyn’s face. They would laugh about it were it not so sinister.”

“Sinister” does seem the mot juste. McGinn, Jr grew up in Bessbrook during the Troubles. I visited the village in the early 1990s on assignment. The skies were full of the chattering of British army Chinooks, and there were fake road signs in the hedgerows bearing pictograms of rifles and captioned: “Sniper at work”. South Armagh had been known for years as “bandit country”. There were army watchtowers standing sentinel in the dinky, green fields and checkpoints everywhere, manned by some of the thousands of the troops who had been deployed to fight what was, in effect, a low-level counter-insurgency war. Nationalist community, my foot.

What lies beneath the Corbyn-McGinn spat is the queered problematics of the ­relationship between the far left wing of the Labour Party and physical-force Irish republicanism. I also recall, during the hunger strikes of the early 1980s, going to a “Smash the H-Blocks” rally in Kilburn, north London, at which Labour Party speakers shared the stage with representatives from Sinn Fein, some of whom wore balaclavas and dark glasses to evade the telephoto lenses of the Met’s anti-terrorist squad.

The shape-shifting relationship between the “political wing” of the IRA and the men with sniper rifles in the south Armagh bocage was always of the essence of the conflict, allowing both sides a convenient fiction around which to posture publicly and privately negotiate. In choosing to appear on platforms with people who might or might not be terrorists, Labour leftists also sprinkled a little of their stardust on themselves: the “stardust” being the implication that they, too, under the right circumstances, might be capable of violence in pursuit of their political ends.

On the far right of British politics, Her Majesty’s Government and its apparatus are referred to derisively as “state”. There were various attempts in the 1970s and 1980s by far-right groupuscules to link up with the Ulster Freedom Fighters and other loyalist paramilitary organisations in their battle against “state”. All foundered on the obvious incompetence of the fascists. The situation on the far left was different. The socialist credentials of Sinn Fein/IRA were too threadbare for genuine expressions of solidarity, but there was a sort of tacit confidence-and-supply arrangement between these factions. The Labour far left provided the republicans with the confidence that, should an appropriately radical government be elected to Westminster, “state” would withdraw from Northern Ireland. What the republicans did for the mainland militants was to cloak them in their penumbra of darkness: without needing to call down on themselves the armed might of “state”, they could imply that they were willing to take it on, should the opportunity arise.

I don’t for a second believe that Corbyn was summoning up these ghosts of the insurrectionary dead when he either did or did not threaten to phone McGinn, Sr. But his supporters need to ask themselves what they’re getting into. Their leader, if he was to have remained true to the positions that he has espoused over many years, should have refused to sit as privy counsellor upon assuming his party office, and refused all the other mummery associated with the monarchical “state”. That he didn’t do so was surely a strategic decision. Such a position would make him utterly unelectable.

The snipers may not be at work in south Armagh just now – but there are rifles out there that could yet be dug up. I wouldn’t be surprised if some in Sinn Fein knew where they are, but one thing’s for certain: Corbyn hasn’t got a clue, bloody or otherwise. 

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 25 August 2016 issue of the New Statesman, Cameron: the legacy of a loser