Jimmy Savile and the end of objectivity

Last week, the NSPCC and the Metropolitan Police (MPS) published a report into the Jimmy Savile sex-crime allegations. Keir Starmer, the head of the Crown Prosecution Service (CPS), which instigates almost all criminal prosecutions in England and Wales, said that he hoped that it represented a ‘watershed moment’ in the way sex allegations are dealt with by the police and prosecuting authorities. I think Starmer is behind the times.

A ‘watershed moment’ suggests that the Savile report may represent a significant change, or the start of a new way of doing things. In fact, the Savile report represents the logical conclusion for a justice system which has spent 16 years completely reorientating itself away from objectivity and dispassionate assessment of evidence and towards elevating the rights of the victim at the expense of due process. The Savile report is not a watershed moment, but the peak of ‘victim centred’ justice.

The first clue is in the name of the report: Giving Victims A Voice. It is worth remembering that the role of the police is supposed to be that of objectively gathering evidence. But as Charles Moore pointed out in the Telegraph last week, this report contains no evidence whatsoever. It is simply a collation and analysis of the allegations made against Savile, most of which we already knew about. The report is explicit in stating that ‘it is the lack of criminal proceedings – and justice for victims – that has contributed to the MPS and NSPCC’s view that information in our report should be put into the public domain’. In short, the purpose of the report is to provide ‘justice’ to victims by officially recognising their allegations as true, and publicly flagellating themselves for failing to do anything about them while Savile was alive.

What kind of ‘justice’ are they talking about? In what sense is this a ‘just’ outcome? Most civilised legal systems recognise that in order for ‘justice to be done’, two things need to occur. Firstly, the facts of a given case need to be established with as much objectivity as possible for the case to disposed of in a just manner. In the UK, this process is undertaken in an adversarial system, in which two sets of advocates test the evidence supporting the state’s case and then undertake an identical inquisition with regards to the defendant’s case. This is effectively the process of presenting conflicting versions of the truth to the jury in order that they can agree what constitutes the facts, in as fair a way as possible. They then, having hopefully agreed on what they take to be the true version of events, proceed to the second stage: the judgement as to ‘guilt’. Even if the jury thinks that a defendant has committed an offence, it may still decide that they are undeserving of punishment and pass a ‘not guilty’ verdict. If the jury thinks that the defendant has both committed an offence as a matter of fact and also believes the defendant is deserving of punishment of some kind, then the jury is obliged to return a ‘guilty’ verdict.

It is this two-stage process of fact finding and judging ‘guilt’ – whether in this adversarial or in the alternative ‘inquisitorial’ system – that most legal systems take to give rise to a ‘just’ result. It is a tradition which has been a part of Western civilisation for thousands of years.

But in 1999, the New Labour government decided that this focus on objectivity and impartial judgement failed to do justice to the victims of crime. Jack Straw, the then home secretary who would oversee some of the most draconian victim-centred reforms in criminal justice, said: ‘For too long, victims of crime have not been given a proper support and protection they deserve. This must change. I am determined to ensure that their needs are placed at the very heart of the criminal-justice system.’ The remarks were echoed by subsequent New Labour home secretaries and justice ministers who were desperate to combat perceived public perception that the justice system was aloof and overly bureaucratic.

Straw’s comments preceded extensive reform which placed the rights of defendants beneath the rights of victims. The Youth Justice and Criminal Evidence Act 1999 allowed evidence from vulnerable witnesses to be given behind a screen or via a video link, while also prohibiting questions about a complainant’s sexual history being asked in sex offence cases. The Criminal Justice Act 2003 then extended these protection to all witnesses, whether considered vulnerable or not, as long as certain statutory criteria were met. Both these acts removed an ancient legal principle – that a defendant should stand face to face with their accusers – in order to make the experience of engaging in the process easier for victims.

Then in 2007, Harriet Harman introduced the Victim Impact Statement. This allowed for victims to read prepared statements to the court, detailing how a crime had affected them emotionally, prior to the judge making a decision on sentence. Judges were quite open in stating that such statements could materially affect the sentence passed. This meant that the sentencing process, which had been traditionally undertaken in the name of preventing further harm to society at large, became about repaying, through a deprivation of the defendant’s liberty, the emotional harm done to the victim.

These reforms represented a clear move away from a criminal-justice system that prioritised objectivity to one which prioritised the stories and feelings of the victim. The victim went from being the invisible ‘third party’ in disputes between the state and the citizen to being the central focus. The introduction of victims’ influence to the sentencing process showed that their emotional payoff had become a central goal of criminal justice, one that should be attained efficiently in order to minimise any further emotional strain to the victim.

The Savile report is merely the logical conclusion of this trend. It is a historic low for prosecutorial respect for objectivity. Because Savile is dead, the police and the NSPCC can simply do away with any requirement whatsoever to investigate what the truth is and jump straight to acknowledging the suffering of the victims. It is a sad and desperate bid to boost their authority and legitimacy that drives the Metropolitan Police and the Crown Prosecution Service to present a report on a dead man in order to bolster public faith that they are able to deal with allegations of sex crime.

In fact, the report only confirms their incompetence when dealing with these offences. A competent and confident police force would recognise that its role is to investigate and establish the facts. This is of the upmost importance in cases involving sexual allegations, where the lines between what a complainant and defendant say are likely to be extremely narrow. The report, which merely elevates allegations to the status of facts, shows a disastrous disregard of the impartiality required to investigate these offences fairly.

The report is not a ‘watershed moment’, but merely a symptom of a justice system with a diminishing appreciation of the importance of objectively establishing the truth. The power of the state to publicly declare someone as guilty is premised on the judgement of the public, embodied in the jury. Now Jimmy Savile is dead, we as individuals will have to make our own call as to how we treat the allegations against him, and neither the police nor the NSPCC should have any role whatsoever in speaking on our behalf.

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