Avoiding injustice: the importance of defending the accused
If one were cooking up the perfect recipe for miscarriages of justice, here are some of the key ingredients:
- Firstly, you need a popular prevailing mood that society must crack down on a particular evil, whether or not that evil happens to involve a criminal offence. All that is needed is a pariah theme, something ripe for media vilification and catchy phrases. The narrative usually includes umbrella terms which conflate legal and illegal behaviour. Current favourites are 'sleaze', 'abuser' and 'pest'.
- Secondly, there would be a complete willingness to accept the truth of any complaint or report which fits the pariah theme. This willingness arises from a feeling that the reporting person, and others just like them, are already 'owed' justice. This debt is assumed to exist before any proper assessment takes place of what has, or has not, actually happened. As such, the burden of proof is instantly puffed away by the wind of prevailing prejudice.
- Thirdly, there would be an investigative and/or prosecutorial force that is under-skilled, under-resourced, or overwhelmed with similar complaints. In a worst-case scenario, those tasked with objectively seeking the truth would already be on the defensive due to dismissing or downgrading similar complaints in the past, and now want to show everyone that things have changed.
- Lastly - the lack of an effective, and unfettered rebuttal. The professionals whose job it is to rebut false or exaggerated claims would be under-funded, or demoralised, or pre-occupied with short term PR damage limitation, not wanting to publicly cause offence or, horror of all horrors, set off another Twitter storm.
Today, we are currently the proud owners of all four of these ingredients. We have the perfect storm, the full house, for wholesale injustices to occur.
The pariah theme, of course, is sexual allegations, although currently blended together with sleazy behaviour of all shapes and sizes. And it cannot all be blamed on what Harvey Weinstein has, or has not, actually done. Given the current climate, the very use of the words 'or has not' feels positively bold.
History tells us that miscarriages of justice will now follow, as night follows day. This will not be limited to unfair criminal convictions. There will be irrevocable tarnishing of reputations, curtailing of careers, limiting of life-chances and social isolation. These are all serious injustices which affect not just the accused person, but also generations of their family.
Of course, very many allegations will turn out to be entirely true. It remains excellent news that more genuine victims are speaking out, but they do not benefit from an entire system simplistically rushing to judgement without proper consideration of the details in what they are saying, or any critical examination of the denials coming the other way.
In addition, genuine victims should not be lumped together in the same category as extra-marital affairs, a suggestive text message, or an ill-judged hand placed on a knee 15 years ago. Hearing an umbrella term such as ‘sleaze’ (which present all of this as part of the same problem) should sound to us like fingernails scratching down a blackboard.
In the UK, we have a recent history of great criminal injustice. Those who understand it will know that we have been here before, many times. They will recognise this perfect storm. The targets change, but the principle stays the same and so do its ingredients. Each time, those who stir it up always believe they are the good guys, and that only the guilty parties and their opportunistic lawyers will cry 'No, wait – what about due process?'
But, for now at least, those lessons of legal history have been temporarily abandoned. This means that legal casualties will shortly follow.
After the storm, of course, there will be the fallout, the corrections and redactions, the apologies and of course the successful appeals and hard-fought, tearful vindications.
Until there is another perfect storm, about something else. And then round we will go again.
Each time we make these mistakes, the lesson is the same. A careful, objective fact-finding process is absolutely sacrosanct. No matter how noble our motives, once we start watering that down or cutting its corners, we are all in terrible trouble.
Articles are intended as an introduction to the topic and do not constitute legal advice.