The case for the prosecution

KEN MACDONALD COULD be forgiven for being suspicious of journalists. The organisation he heads, the Crown Prosecution Service, is regularly on the receiving end of the kind of critical headlines usually reserved for England football managers. And, like Sven, he quickly found there was a personal price to pay for his elevation to director of public prosecutions two and half years ago.

Instantly labelled as one of "Tony’s cronies" on account of the fact that he worked out of the same chambers as the Prime Minister’s wife, he was also attacked because, as a defence lawyer, he had no direct experience of prosecuting. Shortly after that, a gleeful airing was given to an episode from 1971 in which he had been convicted and fined while at university after sending a small quantity of cannabis through the post to a friend.

So how then, do we account for his rather unlikely — but apparently genuine — assertion that "I don’t think I’ve ever met a journalist that I didn’t like".

It can hardly be that he hasn’t met very many of them. So, for the explanation we have to look further back into the less sordid part of his past. It turns out he has another guilty secret. "I actually like journalists, because I always wanted to be one," he says. "It was my first ambition. I used to invent newspapers and push them through the neighbours’


And even though he somehow got "sidetracked" at university and ended up as a lawyer, he says there is still a feeling of regret that lingers over what might have been.

Perhaps that explains why he didn’t get too fazed by headlines like "Tony’s chum sent drugs through post", a Mirror screamer that Macdonald’s son promptly cut out and stuck on his bedroom door.

"You’re going to talk about my sordid past," he says with mock resignation when the subject comes up.

"Can I just say, no-one’s mentioned that for about two years? So thanks for bringing it up." He laughs.

"Claire Dyer wrote about it [in The Guardian] and said ‘he got his crucifixion in early’, and that’s a good way of looking at it. I got a lot of press attention and got used to it very quickly." The first time he heard his name mentioned on the radio about the job it was being described as ‘rampant cronyism’. "I thought, that’s a bit strong. I’d only met Tony Blair once and that was in 1981 for about 15 minutes at a party.

"I would see Cherie and we would chat. Never socialised with them; never been out with them. But I expected that one would have that reaction. It’s quite an odd feeling, but you wouldn’t take on this job if you didn’t expect to have to deal with it."

Yet rather than opting for a defensive media strategy, Macdonald’s laudable approach has been precisely the opposite. One of the most remarkable aspects of his tenure has been the opening up of the CPS on many fronts. Since it came into being in 1986 it had developed a reputation for being an underfunded, uncertain organisation, unable to attract the best lawyers and therefore prone to error.

Although he says it is still in the "foothills" of change, Macdonald does seem to be succeeding in altering the perception and reality of the CPS from the Criminal Protection Agency tag that has previously dogged it. There is now, for example, a waiting list of lawyers wanting to join around the country. Its graduate scheme had 2,500 applications for 25 places. Much of that, he thinks, is down to making it a more exciting place to work, and giving it a better profile that has been helped by a new policy of openness with the public and the media.

"I feel very strongly about it. One reason people lack confidence in criminal justice is because they feel it’s nothing to do with them. And that’s because too often people working in public justice feel it should be nothing to do with them. They think there’s a risk in public engagement because it’s a surrender to populism. I don’t think that’s right."

The traditional instinct of many criminal lawyers, he says, was not to talk to the press. "The press were trouble. The press would print things that damaged trials. The press wouldn’t give people a fair hearing.

The press would just be critical. It was very easy for criminal law professionals to say ‘not only is it difficult talking to the press, but it’s improper’. And that becomes a sort of protection.

"I think we have changed that — although I still think there’s too much of a knee-jerk reaction to say we won’t tell them this or that."

Nowhere is this fresh approach more evident than in the joint protocol that the CPS announced last year, along with the Association of Chief Police Officers, to ensure journalists were given better access to evidence from criminal trials. It’s still early days, but already journalists have reaped the benefits of material such as CCTV footage being released to them that would otherwise tend to be withheld.

Macdonald was a prime mover in establishing the new approach, in conjunction with Society of Editors director Bob Satchwell. It was part of a drive to overcome what he describes as the "dysfunctional relationship" between journalists and criminal justice lawyers.

It’s previously been a vicious circle: "We haven’t told you anything, you resent that, you try and find things out, we get pissed off with you, you print stuff we don’t like, so we don’t tell you anything.

"On the part of journalists it’s probably born of frustration, the difficulty in getting information to which you think you are — or the public is — entitled, and I think there’s a lot of justification in that. Secondly, in many newspapers there’s a feeling that the criminal justice system doesn’t respond to the needs of ordinary people.

"On our part, it’s been the fear that journalists just want to bash us all the time. They’re not interested in the facts, but just want stories like ‘Hopeless CPS lost this case’, or ‘this criminal only got five years for this horrific crime’."

He’s convinced the protocol is just one aspect of how the corporate shift inside the CPS is changing its part in that behavioural cycle. The assumption now should always be in favour of disclosing evidence to the press unless there is a particularly good reason not to.

"I’ll be very disappointed if they [journalists] haven’t noticed a change," Macdonald says. "It’s quite a major thing for us to carry out this transformation. There’s a lot of nervousness. Not everybody thinks this is a good idea."

The success of the protocol will be reviewed in a few months, but there does seem to be anecdotal evidence suggesting it’s starting to work — as evidenced by various reports in Press Gazette.

Macdonald wants to take it further, too. Whereas it’s relatively easy when a trial’s finished to hand evidence over to the press, he wants to see more openness in the pre-trial stage. When applications for reporting restrictions are made by the defence, prosecutors have tended to agree automatically because it’s safer to do so. Macdonald thinks the CPS should be scrutinising these applications more carefully and challenging them more often.

He cites two topical examples. One involved pictures of injuries to a child. CPS lawyers felt they could be released without showing the identity of the child — and argued as such to the judge. Although they lost the argument, Macdonald feels encouraged by the "robust line" they were taking.

The other concerns a high-profile trial that is still ongoing, which prevents us from giving too many details. Journalists covering the lengthy trial asked the judge if they could interview some witnesses once the jury had gone out to consider its verdict — in order to be better prepared with their stories when the verdict was eventually delivered. Defence lawyers argued against the move, on the grounds that the trial would be compromised if somebody inadvertently published something before the verdict. But the CPS backed the media case.

"That’s a good example, isn’t it, where people are being over-defensive. I know in the footballer trial, the Sunday Mirror [printed comments from a victim’s relative that caused the trial to collapse], that was a cock up, but I can’t believe now that if a judge gives an adequate warning, that any newspaper is going to publish something while the jury is out — they’d have to be mad."

But he warns that the protocol doesn’t mean that all evidence will always be released. One newspaper wanted the release of a tape of a rape victim pleading with the attacker. Another example is a request for the address of a witness in a gangland murder trial — which happens to be the same address as that of the defendant.

"Imagine if someone had gone round and shot her in the head — I’d have to resign. It would be madness.

"You can take a fundamentalist view that absolutely everything is released — but that’s unsustainable. Or you can take the view we do that, except in specific circumstances, we will share information with you."

On the day we talk, the Abu Hamza trial has just finished at the Old Bailey. Coverage of that case shows that the CPS is still getting its fair share of knocking headlines: ‘Anger over CPS delay’ reported the Daily Express; ‘A shameful failure to enforce the law’ raged the Daily Mail.

"Our role is sometimes misunderstood," says Macdonald. "It’s assumed that we carry out investigations — and tell the police to. The police are responsible for investigations. If they turn up evidence of a crime, they send it to us.

"Abu Hamza was prosecuted for material which was sent to us in 2004, essentially. As soon as I saw the tapes that the police seized in 2004 it was clear that he should be prosecuted, and he was. As you know, he hadn’t been prosecuted for quite a few years before that and the perception was that it was our responsibility to conduct investigations into him.

That’s not how the system works.

"The police did conduct investigations and sent us two files in relation to the Yemeni kidnapping [Hamza was linked to a terrorist group that killed three Britons in 1998] — this was before I was DPP — and we looked at the files and it was clear that there wasn’t enough evidence to prosecute."

Neither file sent to the CPS included the tapes of the 1999 sermons that later formed the basis of the case for which he was imprisoned.

"I think the way that story is reported… everyone is lumped together as if it’s all their fault: police, courts, prosecutors, Government.

"It’s not really reported that we all have different roles. And that’s not an excuse — it’s essential that we have different roles. An absolute protection.

I mean, if it was the Government making these decisions it would be an absolute disaster.

"We want Parliament to make the laws, the police to conduct investigations, and public prosecutors to prosecute.

"I think it’s a good example of reporting that can disguise the reality of what happened. People could say, the evidence you had in terms of the Yemeni kidnapping was sufficient to prosecute; well it wasn’t.

I’ve looked at the file. You have to be careful not to confuse the desire to prosecute, which many of us have, with the ability to prosecute according to the rules of evidence.

"That’s not to say that as a society we’ve got it right with the preachers of hate.

"It may be that there is a bigger role for the criminal law in this than has been exercised." (See boxout)

He also points out that the CPS simply can’t prosecute on the basis of reports in a newspaper.

Reporters, he notes, don’t want to be witnesses.

Editors don’t want to release material.

"I completely understand that. There’s a personal security issue, but there’s also an ethical issue. Are you a reporter or are you part of an apparatus of prosecution?"

But he cites a current police investigation in which he says newspapers are being "very obstructive".

"I think journalists need to understand that if all we’ve got is what they’ve seen or heard, it doesn’t make life very easy."

Similarly, he suggests, newspapers have their own work to do on giving criminal justice a fairer hearing.

There are whole areas of the system that can’t answer back — such as judges — he says, who have to take criticism without being able to reply.

"I can reply and I do — whenever I see a story in a newspaper that isn’t fair, I always write a letter. Some papers, as a matter of policy, don’t ever print them.

But most do."

Does he want to name and shame the ones that don’t? "Certainly not — they know who they are."

Macdonald signed up for a three-year stint as DPP, which should end in October. He says he’ll be discussing his future with the Attorney General "quite soon" — an extension is one option.

"There’s quite a lot of pressure in this job. There are good parts and bad parts. I enjoy the job actually.

I wanted to do it precisely because of the transformation that’s taking place here. This is a long road — we’re only in the foothills.

Ask an average person in the street what the CPS does and they won’t know. So we’ve got a long way to go."

Foothills they may be, but it’s still a breath of fresh air having someone in a key public role who is so knowledgeable, enthusiastic and understanding of the media. I’d say it’ll be in our interests if he decides to stick around a while longer.

Abu Hamza and preachers of hate MULTICULTURALISM

"I was quite clear when I started this job that we needed to be quite robust in this area. Abu Hamza is, I hope, a signal of what our priorities ought to be.

Multiculturalism has sometimes been a smokescreen for inactivity. It’s pretty obvious that, at the least, it has caused some confusion. But I have always felt, as a defence lawyer and now as a prosecutor, that there are certain irreducibles beyond multiculturalism. This is an open, liberal society. People want to keep it that way.

People who decide to attack these concepts by stirring up violence engage the criminal law. I have never had any problem with this and everyone needs to be clear that this is our position. It’s why Abu Hamza was prosecuted.

He doesn’t have to live here. But if he wants to, he needs to understand the basics tenets of our society. We don’t want hatred and bigotry designed to stir up violence against people he and his friends don’t happen to like.

At the same time, we have to avoid foolishness. Iqbal Sacranie [leader of the Muslim Council of Britain] was perfectly entitled to say what he did about homosexuals.

I strongly disagreed with him, but that is no ground for criminal prosecution. This is a part of liberalism and tolerance.

Arresting shopkeepers for selling golly dolls is silly and offensive. We should restrict ourselves to dealing with threats of violence and attempts to undermine the personal security of people. These are not acceptable."

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