Guilty Until Proven Innocent

Hold on, shouldn’t that be innocent unless proven guilty?

In law, yes, but in reality, it seems not. Partly this is from the relentlessness and immediacy of news in an age of mass instantaneous communication where even if it is desirable it is often impossible to keep information quiet for long enough to defer to the pace of the criminal justice system. There is also a great extent to which, as mud almost invariably sticks, it is natural for people to make their own snap judgements about moral guilt independently of the formal process for determining guilt in legal terms. Call it the Court of Public Opinion if you like.

People want instant gratification and can’t wait for the machinations of the courts. We’ve made our minds up, thanks, and that means that people who are accused of crimes can’t just get on with their lives while waiting for a verdict. So, Chris Huhne MP had to resign as a Cabinet Minister pending the result of his trial for perverting the course of justice by allegedly getting his then wife to take the points for a speeding offence on her licence. The FA had to remove John Terry from the captaincy of the England football team pending his trial for racially abusing Anton Ferdinand. The Labour Party had to withdraw the whip from Eric Joyce MP as soon as he had been arrested for allegedly headbutting Stuart Andrews MP and others in the Strangers’ Bar at the Houses of Parliament.

Some will say that this is unfair and that it is not right to pre-empt the Courts or to serve up a “punishment” before anything has been proven. However, this is simply reflective of the fact that legal judgments are not the only ones that are legitimate in relation to people’s behaviour or an assessment of whether they should be able to continue as if nothing had happened until and unless they are convicted.

There have been a couple of high profile cases in Leeds which help to illustrate this. First there is the case of David Friesner, a literally criminal barrister who continued to practice while his own trial for theft from his Chambers was pending and who was, remarkably, allowed to go on to defend another fraudster between his own conviction and receiving a 3 year prison sentence. The other is the case of Max McRae who was convicted of causing the death by dangerous driving of Jamie Still but was allowed to carry on driving for 8 months between the incident and his conviction.

Instinctively it feels wrong that either McRae or Friesner were not prevented from carrying on with their lives as if nothing had happened until they actually went to prison, although it is more difficult to decide how much and what sort of action could or ought to be taken pending conviction and sentence. In McRae’s case it appears more obvious because, whatever the ultimate legal characterisation of the events he was undisputedly at the wheel of the car which crashed killing Jamie Still. Certainly it seems wrong that after conviction Friesner was able to stand up in Court as Counsel, albeit that it is less certain that it would have been right to have deprived him of his livelihood before trial. A couple of years ago a family friend of ours was tried for very serious and disreputable offences after  long delays between the alleged offences, charge and trial. They had strenuously upheld their innocence throughout and were, thankfully, ultimately acquitted on unanimous verdicts. Yet, even today the fact of the charges and trial mean that they would never be able to pass an enhanced CRB check and even where CRB checking is not required, a simple google search will always lead to detail of the allegations being a permanent part of their online identity wherever they might go in the world.

Short of preventing reporting of alleged crimes prior to conviction and giving all defendants anonymity, there is little that can be done to protect the lives and reputations of the innocent. Retrospectively it will for most serious crimes appear monstrous (as in the McRae case) for those ultimately found guilty to have been able to enjoy the full benefit of the doubt in all respects prior to conviction. Monstrous, but correct in legal terms. But, where there is a matter of discretion for those who have been granted privileges and esteem, such as Huhne, Terry or Joyce, it is better that they have these suspended while they clear their names or wait for formal justice. That doesn’t mean that there can’t be some compassion without excusing anything, but that sometimes the right thing to do is to accept that the appearance of impropriety or the possibility of conflict should be avoided even if you are “within your rights” to ask to be treated as innocent unless proven guilty. The corollary to this is that people should also be more willing and able to let those who have been acquitted move on without the mud continuing to stick and to recognise where they have made a sacrifice in the course of awaiting vindication. So, much as politically I would prefer otherwise, if Chris Huhne were to be acquitted, the fact that he resigned his seat in the Cabinet should be recognised as a sacrifice. This would also encourage others to do the decent thing rather than to cling on – it would have been better for Terry to have resigned the captaincy than to have been stripped of it. It would also mean that employers (etc) should give people a chance, so that Eric Joyce should have been provided with the support to have made a decision rather than have the Party whip withdrawn even before charge.



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