The dead can't enter a plea of guilty, by David Finkelstein, published 11 December 2012 in The Times
Cyril Smith may have been a monster. But until we have reliable evidence we must not rush to judgment
Can I ask you a question? How do you know, really know, that Jimmy Savile is guilty of child abuse? The truth, let’s face it, is that you don’t.
You are like me. You’ve perhaps heard one or two TV interviews with victims. You’ve read the odd article including some fairly damning quotes. You’ve gathered that there is a police investigation and that, as a result, a number of famous people have been arrested, although oddly always in connection with allegations that have nothing to do with Savile.
And, most of all, you’ve heard people say that he always looked a little fishy and that come to think of it it was a dead giveaway that he always waltzed around in one of those gold lamé tracksuits that paedos love to wear. And that hair. And “now then, now then”. He definitely did it.
The settled public attitude that Savile committed these crimes serves important ends. It allows his victims to tell their stories and feel that they are being heard; it prompts a public debate about attitudes to the horrendous crime of abuse; it reveals the dangers of allowing celebrity to become a warped form of power; and it leads organisations with which Savile was involved to consider how they allowed staff to behave.
All this suggests that historical and journalistic accounts of Savile and his behaviour are vital. The truth is essential and what is in the public domain already leads me strongly to suspect that the truth will be damning. Over time I hope many of us read these accounts and learn from them.
But the settled public attitude that Savile committed these crimes also has a worrying side. Jimmy Savile is dead. He cannot defend himself. And by this I don’t just mean he cannot provide an account of his actions. He cannot subject the allegations of others to critical scrutiny or pay a lawyer to do that on his behalf.
By dying, Jimmy Savile both escaped justice and was denied justice. He can no longer be punished for what he is accused of doing, but he cannot refute the accusations either.
I fear that in our anxiety to put right the mistakes that were made during the lifetimes of people like Savile, and in our justifiable anger on behalf of victims, we may begin to erode something else that really matters. We may begin to erode the difference between historical accounts and criminal proceedings. We may start to prosecute dead people and find them guilty when they fail to enter a plea.
Let’s take the case of the Liberal MP Cyril Smith. In March 1970 the office of the Director of Public Prosecutions received a file of evidence from Lancashire Constabulary containing allegations by eight men that they were indecently assaulted by Smith when they were teenagers and, in one way or another, in his care.
Later that month the DPP’s office responded. It had decided not to prosecute. It felt that there was not a reasonable chance of conviction because the accusations were without corroboration and some of the men would not make good witnesses. Smith, who had denied the accusations, was informed.
Nearly thirty years later, the decision was reviewed by the Crown Prosecution Service. But without new evidence the case could not be reopened. Smith had been informed all those years ago that there would be no prosecution and that was that. The rules forbade a reversal of the decision.
Last month the CPS changed its mind. It said that the decision made in 1970 would not be made today. It effectively charged Cyril Smith with the crimes it had not charged him with all those years ago and decided in 1999 that it could not reopen.
And on the same day Greater Manchester Police issued a statement. It said it had “overwhelming evidence” (which appears — it’s not entirely clear — to be the same evidence considered in 1970 and 1999) and that “we should publicly recognise that young boys were sexually and physically abused” by Smith.
So the CPS having charged him, the police found him guilty. The only tricky problem in the case being that Smith died in 2010.
If Cyril Smith committed these crimes then he is a monster. But I am still attached to that vital word “if”. People in this country are innocent until proven guilty. We cling to that notion: it is a life raft, we have to cling to it.
Yes, the police think he is guilty and the police are worthy of respect. But the police always think the people they charge with offences are guilty; that is why they charge them. Policing proceeds by identifying a suspect and then building the strongest possible case against them. And the more time the police spend on the case, the more convinced they become.
In the 15 years between the arrest of Colin Stagg on the unjustified suspicion that he killed Rachel Nickell and the admission 15 years later by Robert Napper that he did it, the police never stopped believing that Stagg was their man, a belief they had held from the moment they set eyes on him. That’s how policing works. That’s how the mind works.
And it is the reason why cases are tried in court. So that police evidence can be subjected to public scrutiny.
Yes, there are allegations of a similar nature from several people. But corroboration by volume, novel doctrine that it is, has many dangers. It is essential to establish that there is no chance of either deliberate or accidental collusion between witnesses. Unwittingly the very process of police evidence gathering can produce similar allegations. A public trial would examine this.
And yes, therefore Smith should have had his day in court. But I write that as a journalist, not as a state prosecuting authority. For the State to revisit old cases and start changing its mind the moment someone dies, is deeply disturbing.
It is sickening to reflect that Smith and Savile have not been made to face the accusations against them, and to live with the consequences of their behaviour, whatever it may have been. Every victim needs protection and justice from every guilty person. Historians now have an important job bringing the truth to light.
But every innocent person needs to know they live in a society of due process and the rule of law. And that they can die in peace, without being taken to court in their coffin.
daniel.finkelstein@thetimes.co.uk
You are like me. You’ve perhaps heard one or two TV interviews with victims. You’ve read the odd article including some fairly damning quotes. You’ve gathered that there is a police investigation and that, as a result, a number of famous people have been arrested, although oddly always in connection with allegations that have nothing to do with Savile.
And, most of all, you’ve heard people say that he always looked a little fishy and that come to think of it it was a dead giveaway that he always waltzed around in one of those gold lamé tracksuits that paedos love to wear. And that hair. And “now then, now then”. He definitely did it.
The settled public attitude that Savile committed these crimes serves important ends. It allows his victims to tell their stories and feel that they are being heard; it prompts a public debate about attitudes to the horrendous crime of abuse; it reveals the dangers of allowing celebrity to become a warped form of power; and it leads organisations with which Savile was involved to consider how they allowed staff to behave.
All this suggests that historical and journalistic accounts of Savile and his behaviour are vital. The truth is essential and what is in the public domain already leads me strongly to suspect that the truth will be damning. Over time I hope many of us read these accounts and learn from them.
But the settled public attitude that Savile committed these crimes also has a worrying side. Jimmy Savile is dead. He cannot defend himself. And by this I don’t just mean he cannot provide an account of his actions. He cannot subject the allegations of others to critical scrutiny or pay a lawyer to do that on his behalf.
By dying, Jimmy Savile both escaped justice and was denied justice. He can no longer be punished for what he is accused of doing, but he cannot refute the accusations either.
I fear that in our anxiety to put right the mistakes that were made during the lifetimes of people like Savile, and in our justifiable anger on behalf of victims, we may begin to erode something else that really matters. We may begin to erode the difference between historical accounts and criminal proceedings. We may start to prosecute dead people and find them guilty when they fail to enter a plea.
Let’s take the case of the Liberal MP Cyril Smith. In March 1970 the office of the Director of Public Prosecutions received a file of evidence from Lancashire Constabulary containing allegations by eight men that they were indecently assaulted by Smith when they were teenagers and, in one way or another, in his care.
Later that month the DPP’s office responded. It had decided not to prosecute. It felt that there was not a reasonable chance of conviction because the accusations were without corroboration and some of the men would not make good witnesses. Smith, who had denied the accusations, was informed.
Nearly thirty years later, the decision was reviewed by the Crown Prosecution Service. But without new evidence the case could not be reopened. Smith had been informed all those years ago that there would be no prosecution and that was that. The rules forbade a reversal of the decision.
Last month the CPS changed its mind. It said that the decision made in 1970 would not be made today. It effectively charged Cyril Smith with the crimes it had not charged him with all those years ago and decided in 1999 that it could not reopen.
And on the same day Greater Manchester Police issued a statement. It said it had “overwhelming evidence” (which appears — it’s not entirely clear — to be the same evidence considered in 1970 and 1999) and that “we should publicly recognise that young boys were sexually and physically abused” by Smith.
So the CPS having charged him, the police found him guilty. The only tricky problem in the case being that Smith died in 2010.
If Cyril Smith committed these crimes then he is a monster. But I am still attached to that vital word “if”. People in this country are innocent until proven guilty. We cling to that notion: it is a life raft, we have to cling to it.
Yes, the police think he is guilty and the police are worthy of respect. But the police always think the people they charge with offences are guilty; that is why they charge them. Policing proceeds by identifying a suspect and then building the strongest possible case against them. And the more time the police spend on the case, the more convinced they become.
In the 15 years between the arrest of Colin Stagg on the unjustified suspicion that he killed Rachel Nickell and the admission 15 years later by Robert Napper that he did it, the police never stopped believing that Stagg was their man, a belief they had held from the moment they set eyes on him. That’s how policing works. That’s how the mind works.
And it is the reason why cases are tried in court. So that police evidence can be subjected to public scrutiny.
Yes, there are allegations of a similar nature from several people. But corroboration by volume, novel doctrine that it is, has many dangers. It is essential to establish that there is no chance of either deliberate or accidental collusion between witnesses. Unwittingly the very process of police evidence gathering can produce similar allegations. A public trial would examine this.
And yes, therefore Smith should have had his day in court. But I write that as a journalist, not as a state prosecuting authority. For the State to revisit old cases and start changing its mind the moment someone dies, is deeply disturbing.
It is sickening to reflect that Smith and Savile have not been made to face the accusations against them, and to live with the consequences of their behaviour, whatever it may have been. Every victim needs protection and justice from every guilty person. Historians now have an important job bringing the truth to light.
But every innocent person needs to know they live in a society of due process and the rule of law. And that they can die in peace, without being taken to court in their coffin.
daniel.finkelstein@thetimes.co.uk
@Mrs M Dear Mr Finkelstein. Have you ever spoken to a victim of child sexual abuse? It might help your research and make your articles more balanced. I'm at service as required. PS: kindly define "reliable evidence".
@Mrs M Thank you for your offer. Should you wish to talk to me about your story, of course I should be grateful to be told about it. The is, I am sure, much I could learn. But I must emphasise that my point does not involve any denial of the seriousness of abuse, or of its widespread nature, or of the need, because of the nature of the offence to use evidence that hasn't been corroborated. It is about people being tried when dead. Overwhelming evidence needs testing before it can be considered reliable evidence.
@Daniel Finkelstein People can not be tried when they are dead. Therein lies the problem. The police and MI5 (certainly in the case of Smith) covered up these cases until the perpetrators were dead, in spite of corroborating evidence. It's interesting, don't you think? PS: Hitler wasn't put on trial either, but I think it's widely assumed he was guilty of rather a lot of things. Several hundred victims in the Savile case beg to differ that any doubt should linger about his guilt too. Regarding my story, I'll get back to you. It's very important that victims' voices are heard.
Both Finklestein and Aaronovitch practice a contemptuous kind of smoke-screening and confusion in an effort to deter the scrutiny of establishment figures. Either forced by the 'boss' or willingly ingratiating, it's working against getting to the truth. Disgusting!
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