Hounded to death.

Hounded to death.

It is gingerly, and with a great deal of trepidation, that I write today’s post. I have been struck by the awfulness of Carl Sargeant’s death on Tuesday when it appears he took his life after having been accused of misbehaviour and having lost his government position. Now, I don’t have any great affection for politicians and did not know a great deal about  Mr Sargeant before this event so why has his apparent suicide affected me ?

Firstly because it is a very obvious reminder of the terrible damage we are doing to our society and the rule of law by the ongoing hysteria in the media about sexual abuse and politicians. Clearly I would want to see any politician, of any hue, who abused any other person dealt with and punished appropriately. The promise of power and influence, that the world of politics offers, means that it will attract more than an average amount of psychopathic individuals. Therefore it is quite reasonable that we may find an above average number of people who are guilty acts of abuse in our governmental bodies. But, equally clearly, I only want guilty people punished and shamed. This distinction is one of the hallmarks of a civilised society where rules are just and punishment only justly applied when it is warranted.

One of the earliest legal treatises was the Mishneh Torah which was an attempt codify the bases of Jewish Law. In the early attempt to tease out guiding principles for a fair and just society the great philosopher Maimonides wrote :-

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

as he was aware that to do otherwise was the start of a slippery slope which lead to a lawless and unjust society where conviction, not being based on an adequate burden of proof, could lead to punishment on the basis of a whim of courts and rulers. This has also been referred to as Blackstone’s Formulation after he stated “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer“.

This principle should be considered alongside another, related legal principle, that is, the presumption of innocence. All legal systems hold this principle dear. Roman law states “ei incumbit probatio qui dicit, non qui negat” (the burden of proof is on the one who declares, not on one who denies), and Islamic law, Common Law and the Civil Law all carry this basic tenet. As the public puts it “Innocent until proven guilty“. This is a principle that keeps you and I safe : we can only fall foul of the law, and be punished, if we are found guilty after trail not simply by accusation.

In the Carl Sargeant case he was treated as if her were guilty before he had a hearing. He lost his position and was treated by Carwyn Jones, The First Minister of Wales, as if the accusations were true. This is the  habit, increasingly popular, of jumping to the conclusion that accusations are truth. It is this approach which  underpins such campaigns as #IBelieveHer. Now it is understandable that we want to increase the justice for those who are victims of any form of abuse but this strategy is very dangerous. If we believe the accusers without question what is the need for a trial ? If we believe the accusers then the only thing missing is retribution. This leads us to a very dark place where people can be destroyed by malicious accusations.

 

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This photograph, might explain my concerns about this. This is a group of Welsh special advisors out for the evening celebrating on the night that they had just started the ball rolling on the case against Carl Sargeant. These are the expressions just after they have opened the floodgates of innuendo and suspicion. A colleague and erstwhile friend has been thrown to the dogs and this photograph reveals their feelings that very evening. When accusation becomes proof, accusations become dangerous and powerful political weapons which some people seem to enjoy using.

This is not the only legal principle that was ignored in Carl Sargeant’s case. He was never given details of the accusations nor knowledge of who his accusers were.  Again in English Law, Roman Law, and also the Sixth Amendment of the United States this is a ignoring a cornerstone of justice. In the Bible, when Paul was accused, it was described thus :-

“It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

If one does not know the accusations, nor your accuser, you are effectively denied the opportunity to defend yourself. If you can not defend yourself you cannot receive justice. It has long been known that ignoring this principle would lead to injustice and would facilitate terror. The oppressive, nightmarish qualities we try to explain when we use the term “Kafkaesque” , relate to being on trial but ignorant of your accusers and their claims as so well described nn Kafka’s novel Der Process (The Trial). Secret accusations, secret courts and clandestine meetings have always been the way of the power hungry who wish to subvert justice. In this particular case it seems that it has gone further than this as there were also meetings with the accusers when their stories were discussed with all the risks of contaminating evidence of any wrong doing. This is very reminiscent of the history of the Stasi, or the Gestapo, collecting accusations so that they might prove useful against political enemies in power struggles at a future date

Carl Sargeant did not know of what he was accused nor do we. We know that it could not have been sufficient to warrant police involvement. It is likely that it was behaviour that is deemed inappropriate in our present moral climate. He might have behaved in a manner more in tune with an older generation than the present. If this is the case then it is probable that a further legal principle is  in the process of being ignored – we can only be tried for offences against the rules that applied at the time. Guilt can not be backdated. If tomorrow they pass a law outlawing drinking alcohol on Sundays,  it is this principle which protects me against them coming and punishing me for last Sunday’s drinking. I am obliged to follow the law as it is just now, not as how it might be in the future. Without this principle we could all be facing punishment in the future for some act which is not a crime at present – did you spank your child ? Did you smoke in a public place ? etc etc.  The same guideline should be used when we consider social mores and customs.

For all these reasons the story of Carl Sargeant is a sad and worrisome tale. He did not receive fair justice and now never can. We will never know the truth of these accusations as they can not be tested now that he has died, so justice will never be served. These principles are not minor bureaucratic foibles but are the foundations of our enlightened society. For the sake of all those black men lynched in the South in America, denied a trial and presumed guilty on the words of their accusers, we must fight for these principles. For the sake of all the women accused of witchcraft and killed never able to confront their accusers we need to remember how important these principles continue to be. For the sake of the very many women who are going to be accused of adultery, or other crimes in the middle east, and face death just on the basis of an accusers word we need to promote these ideas and promote civilisation.

Carl Sargeant worked hard for his community and tried to improve the world by his work in politics, I hope now that he can rest in peace. Hopefully his family will also find peace and perhaps, in time, they may see that his sad death contributed to a turning point when society turned its back on hysteria and witch hunting.

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Warnings after Ched Evans

Warnings after Ched Evans

I have watched the sorry story of Ched Evans over the past years with increasing feelings of fear and anger. In 2012 he was convicted of rape following an events during an evening in Rhyl the previous year. During the trial I can recall my feelings, shared by many others, that this young man had unfortunately become a political symbol in the battle over the nature of rape and issues of consent in our society and had suffered a miscarriage of justice.

He was unfortunate because he was a high profile celebrity who was to be used in the battleground of the issue of consent. It was important to many who held partisan ideas on this issue that he was brought down so as to send a message to others. It did not matter that the grounds for his conviction were unsteady, through his trial social media clamoured for his punishment in a strident manner. After his conviction the general media also joined in with calls for further and extra-judicial punishment. Notoriously Caitlan Moran called that his life be  “reduced to ash” in a phrase that sounds reminiscent of bringing back burning at the stake. Articles in the Guardian asked that he be denied any work after he served his jail sentence and that he treated like a pariah while Jessica Ennis wanted her name removed from a stand if Sheffield Football club considered re-employing him. Petitions were organised and companies boycotted all to ensure that he suffered well after he had served his time.

This may have been understandable had the crime been at the serious or severe end of the scale but this had never been suggested as the case. This was not an anger based on hearing of hurt or damage to an unfortunate victim but rather anger based on a desire to change our attitudes to the laws surrounding rape. An anger that was taking as its focus a case which many people could see was flawed and dangerous. Our society now has much more permissive ideas regarding drunkenness and promiscuity and this change has occurred at the same time as a broadening of our views of sexual abuse. This case was where these two issues collided; having a high profile international footballer at its centre allowed the flames of this debate to blaze much more brightly.

Fortunately Ched Evans did not passively accept his role in this drama and he and his family fought for an secured an appeal following which he was acquitted. Many have commented on the financial cost that was paid to fight for this appeal and retrial and this is an important point. It is a horrible thought that, had he not been a wealthy young man with plenty of money, he would not have been able to clear his name. Had he been a joiner or nurse then he may still have the stigma and shame of a rape conviction damaging his life.

But, even after the retrial and acquittal, many on the media will not stop trying to use them in their battles. Ungracious at best, and more commonly disbelieving, in their tone the media has tried to portray his acquittal as an error. The Guardian suggesting that it has set a precedent that future rape victims will be less likely to come forward, Julie Bindell called his retrial a “Rapists Charter” and the popular midday TV programme Loose Women had to issue and apology as their presenter Gloria Hunniford expressed her opinion that the jury got it wrong.

These statements are both wrong and counterproductive. Nothing has occurred in the re-trial other than the overturning of an incorrect decision. There is no change in the law but these statements themselves, by whipping up fear and uncertainty, might deter victims of rape pursuing their case. As Francis FitzgGibbon QC, the chair of the Criminal bar Association, has said :-

“There’s been a huge over-reaction to what this case means. The answer is not very much. The thing that troubles me is people saying it sets the law back 30 years and it’s a rapists’ charter. That is what is going to make people think they daren’t report what’s happened to them. Those cries of anguish are a self-fulfilling prophesy.”

The use of information about a complainant sexual history is controlled by Section 41. This has not changed and only allows its use in specific circumstances when it may prevent a miscarriage of justice.  As Angela Rafferty QC added :-

“It is a disservice to victims of sex offenders to misinform them that the Ched Evans case has put the law back 30 years or has made it a rapists’ charter. That case has not changed the law. The law forbids questions about the previous sexual behaviour of a complainant in sexual offence cases, except in highly unusual circumstances where the trial would be unfair, and a wrongful conviction might result, if the evidence was not given.

“The court of appeal thought Evans’s was such a case. Cases like Evans’s will remain wholly exceptional. There is no relaxation of the rule against this type of questioning.”

A more worrying trend is the oft-repeated phrase, especially on social media, that he has “not been proven innocent“. This is not how our law works. One never has to prove one’s innocence, the court has to prove ‘beyond any reasonable doubt’ that one is guilty. If the court does not prove this then one remains innocent. The presumption is that of innocence. This is an important foundation of our legal system and is seen as a Universal Human Right and is Article II of the UN declaration of human rights :-

Article 11

“(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

This is a vital safeguard as it defends the weak against the state. We do not have to prove our innocence our guilt must be shown beyond doubt. In the days of the inquisition or under totalitarian states  it may have been necessary to demonstrate that you were good and free from evil but, thankfully, no longer.

To question this principle is very dangerous and could start to undermine our fair society. I fear that this is part of a campaign to weaken this safeguard. It is related to the #Ibelieveher movement when people propose that the complainant should be considered  true before the trial has run its course and evidence been tested. This again takes away the presumption of innocence and is part of a very worrisome trend.

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Though I ams ure many of the people suggesting these changes do so with the best of motives, and none of us would want a rapist to escape justice, but tampering with the fundamental safeguards of the legal system and permitting injustice and miscarriages to occur make us all less safe in the future.