An inhumane presumption of guilt
As the Savile scandal reaches a new pitch, key principles of criminal justice are being sacrificed at the altar of victimhood.
So the allegations rumble on. As the director general of the BBC fumbled his way through ministerial questioning, it appeared that the hallowed hallways of the BBC were about to collapse. And all the time that the handwringing investigations continue into the exploits of Jimmy Savile, one assumption reigns unquestioned: that Savile is a guilty man.
The question has been decided. The evidence has spoken for itself. His guilt is no longer at issue. With blithe self-assurance, the political and cultural elite has tried and convicted Savile in absentia. And even though he is dead, his posthumous sentencing is well underway. His legacy is slowly being stripped away from the world. The organisations he sponsored during his lifetime, including the Stoke Mandeville Hospital Trust, which assists those with spinal injuries, are removing any association with his name. His money is to be paid to victims of child abuse. His gravestone has been dismantled. Slowly but surely, any trace of the man’s life is being removed from the world. At least those serving life sentences in prison may have an opportunity to change the direction of their lives and leave some positive mark behind. For Savile, the only goal appears to be to wipe him from the country’s memory completely.
Anyone concerned with liberal principles of justice and punishment should be deeply troubled by this causal defilement of a human legacy. If we take all the allegations to be true, then Savile was an awful man. But that’s the point: we shouldn’t. The point about ascribing criminal guilt to another human being is that the allegations against them are tested, that they are rigorously exposed to scrutiny. It is a longstanding tradition of English criminal law, as well as a strong tradition of human decency, that until this process has been complete, the accused is innocent. No ifs, no buts. If this process cannot be undertaken, as is the case with Savile, then Savile can never in fact be ‘guilty’ of anything in any meaningful sense. He is no longer a participant in the community that makes that judgement. As such, the humane thing to do would be to let him rest, in the knowledge that some questions about his life will never be answered.
This is not just legalism. There is a positive and fundamentally humane tenet to many justice systems across the world that recognises that people’s stories matter. Their account of themselves must be aired, in full, in front of a jury of their peers, before a judgement of guilt can be made. This process represents a fundamental respect for an individual’s worth: that no matter how strong the evidence of their guilt may be, a judgement on them cannot be passed until they have had their say. That ‘say’ may well be throwing their hands up and pleading guilty. It may mean admitting guilt to some allegations and not others. It may even be a fantastical pack of lies, designed to allow the accused to take their chances in the courtroom. Regardless of what the story is, a civilised society should recognise that a judgement of guilt, and any resultant punishment, only has any meaning if that account is heard.
But today, one of the few remaining humane tenets in our justice system is being supplanted by the all-powerful drive for victim’s justice. Today, those who make the allegations are the only ones who matter. Yes, there are many allegations and many of them may well be true. But the sad fact is that our society, as embodied in the jury, will never be able to make the call as to which are true and which are not. As such, these allegations will never become socially recognised statements of truth. In any other case, every person making a complaint about Savile would be known as a ‘complainant’ in the courtroom rather than a ‘victim’, because their account, their claim to victimhood, had not yet been scrutinised. In the Savile case, because this process simply cannot be undertaken, Savile’s guilt has to be assumed to allow for a hollow and authoritarian punishment to be meted out in the name of his ‘victims’.
For the sake of the presumption of innocence, one of the most powerful and humane principles of our judgement system, we should hope that Savile’s case is a one-off, a singular expression of the current hysteria around child abuse, which we will look back upon as a momentary lapse in our collective reason. The alternative is that the casual disregard for people’s accounts of themselves becomes the norm, and we become more accepting of assuming guilt for the purpose of passing swift punishments. Savile may have been a monster. He may have been a creepy old man. He may have been part of a time and place where abhorrent sexual behaviour was treated as the norm. No matter what he was, his story mattered and continues to matter. If we, as a society, were truly confident, and our principles were truly consistent about our respect for human decency, we would have been able to listen to the allegations and learned to live with a difficult truth: that a dead man can never be found guilty of anything.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.