Passing judgement on the dead

Last Tuesday, the Crown Prosecution Service (CPS) gave a public statement that the late Liberal Democrat MP Cyril Smith would have been prosecuted for indecency, had the evidence submitted to the Director of Public Prosecutions against Smith in the 1970s been presented today. The announcement was unprecedented. Never before has the CPS, which is responsible for prosecuting offences in England and Wales, publicly indicated that a dead person would have been prosecuted but for the failings of its predecessors.

Greater Manchester Police (GMP) went even further by publicly acknowledging that Smith was in fact guilty of the crimes alleged against him. Where the CPS statement only went as far as to say that contemporary prosecutorial practice, accompanied with changes in the law around the prosecution of sexual assault, would allow for Smith to be brought to trial had he been alive today, GMP said it was now able to ‘publicly acknowledge that young boys were victims of physical and sexual abuse committed by Smith’ and that it is ‘absolutely important for those victims who were abused by Smith that we publicly acknowledge the suffering they endured’.

The statements by the CPS and GMP became elided and misreported by almost every mainstream newspaper. The Daily Mail wrote ‘after 40 years, officers and lawyers have now agreed that Sir Cyril Smith attacked teenage boys and should have been prosecuted’. Wrong. The Crown Prosecution Service merely said that Smith would have been brought to trial today, and said nothing about the fact of Smith’s guilt. The Guardian similarly described the statement as ‘an admission by police and prosecutors that the late Cyril Smith repeatedly physically and sexually abused children at a Rochdale care home’. Wrong again, see above. Channel 4 went even further, by attributing the remark regarding the ‘absolute importance’ of acknowledging Smith’s guilt to the CPS, when it had in fact been made by GMP. So desperate were the media to close the case against Smith that the reporting of the announcement quickly became garbled and inaccurate.

However, the manic and confused reporting of the remarks does not detract from the significance of what was said. Effectively, these announcements taken together amounted to an official judgement on the guilt of a dead man. In the absence of any due process whatsoever, without any input from the public, without any space given to the accused to put forward his account, the fate of Cyril Smith was decided by the organs of officialdom. The authoritarian posthumous trial and conviction of Smith has been welcomed by many as a final resolution for Smith’s ‘victims’.

This case is particularly ill suited to this official disposal because of its complex history. The allegations against Smith were initially submitted to the director of public prosecutions (DPP) in March 1970. At that stage, the DPP indicated that no prosecution would be brought because the allegations lacked any corroboration and the complainants were of ‘suspect’ character. Then, in April 1997, an investigation into care-home abuse was launched by South Wales Police in the course of which helplines were set up inviting complainants to come forward. Further complaints were made against Smith through these helplines. This resulted in a further file of evidence being presented to the Crown Prosecution Service in May 1998, which included the original papers from the 1970 complaints. At that stage, the CPS indicated that Smith would not be prosecuted because he had been told 28 years earlier that he would not be and, in relation to the new complaints, one complainant alleged conduct which did not amount to a criminal offence and there were further doubts raised about the credibility of one of the new complainants.

So what led to the sudden about turn by the CPS, which now appears to think that Smith should have been prosecuted all along? The change in position is not explicable by reference to new evidence because there is none. The complaints – and the complainants – are exactly the same. But, seemingly out of nowhere, the official view is now that Smith is and always was a guilty man. So if there is no new evidence, why has a major state institution decided to publicly confess to its own failings?

The reason is that the CPS is now attempting to persuade the public that attitudes towards the prosecution of sexual offences has changed. Again and again, both the CPS and GMP made references to ‘changing attitudes’ to prosecuting sex cases. It is of note that last month the Guardian publicised the fact that the number of reported rapes in London had fallen for the first time in years. Of course, the reason for the fall was not explained through a fall in actual allegations, but in a ‘crisis of confidence’ in the ability of the Sapphire unit of the Metropolitan Police, their specialist sex crimes unit, in dealing with sex offences. The announcement shows that this perceived crisis has been internalised by our prosecuting authorities, who are now reduced to using a dead man to plead to the public that they are capable of prosecuting cases which take place ‘behind closed doors’.

In this regard, the last line of the announcement was telling: ‘the decision made by the director in 1970 would not be taken by the CPS today’. Effectively the CPS was desperate to show that the evil, misogynistic, sexist, Life on Mars-style prosecuting of the 1970s has been replaced by hip, modern prosectors who totally understand how hard it is to lock people up for sex crimes and are doing everything they can to make it easier.

The Cyril Smith case has shown how desperate the authorities are to show they are able to be objective in prosecuting sex crimes. In fact, this case and others like it show how criminal justice, and our contemporary notion of what constitutes ‘guilt’, is veering away from objectivity. The public pronouncement of guilt over the dead is not capable of carrying any objectivity because the allegations are not exposed to any scrutiny whatsoever. Far from getting at the ‘truth’, these investigations and the announcements they give rise to are simply arbitrary official endorsements of uncorroborated allegations. This Kafkaesque approach to criminal justice is a worrying indication of how the authorities behave at times of perceived ‘crisis’.

In fact, neither the CPS, the police nor the law should have any place in passing the final judgment over anyone, living or dead. Their job is to provide the framework and the evidence for the judgment to be made by us, the public. Where it is not possible to make that judgment, and especially where the accused is no longer alive, they should simply butt out. Now that he is dead, it is for history to judge Cyril Smith and the manner in which we should treat his legacy, not our flailing and increasingly arbitrary prosecuting authorities.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.