Lord Bramell’s apology: A response to Matthew Scott

On his blog, Mr Scott asks and answers two questions.[1]

1. Should the Metropolitan Police now apologise to Lord Bramall?

2. What will happen to the main witness, “Nick”, if the police come to regard his evidence as unbelievable?

The questions show the police have mishandled the investigation. They publicised the case which traumatized the alleged suspects. He concludes the police should apologise for having investigated and the way they investigated.

Mr. Scott makes short work of the police claim that they do not apologise for their investigations. He argues that they have apologised when they “got it wrong” so they should apologise in this case for having “got it wrong”. Mr Scott presents a strong, compelling argument. Given his stature, expertise, and clarity, we should consider his argument closely.

Should the Met apologise to Lord Bramall?

He begins by explaining that the MPS have apologised for other times they have made mistakes or “got it wrong”. He lists their mistakes, their apologies, but what is missing though is an apology for an investigation like Lord Brammall’s where the police found insufficient evidence to refer the case to the Crown Prosecution Service (CPS).

He turns to Assistant Commissioner Patricia Gallan’s statement for why the MPS have not offered an apology. The police explained that if they apologised for investigations that did not succeed it would have a chilling effect as officers would not pursue investigations that looked or were difficult to prove. She went on to say that they had to establish whether evidence existed to substantiate the allegations or to dismiss them.

He explains that she misses the point. She should not apologise for the investigation, but the way it was handled. He points to the ill-considered remarks by Superintendent Kenny McDonald as well as the publicity around the police raids. In particular, Mr. Scott focuses his attention on Exaro news.

Journalists can discover information from the police without suborning them.

According to him, Exaro could have only obtained the information in three ways.

(a) The Met deliberately leaked the information;

(b) The Met covertly leaked the information; or

(c) The Met carelessly allowed information to leak to Exaro.

What he does not allow for is that the Exaro may have demonstrated good investigative skills to discover the raids through legitimate sources. We know that other news sources have been able to elicit such information.

He then concludes that in addition to the way the police investigated, the press involvement, there is the question of how long the investigation took before they cleared him.

He then gets to the point.

Of course, nobody should be above the law, but anyone treated as the police have treated Lord Bramall would deserve an apology, and a nonagenarian war hero with a dying wife deserved to be treated with particular care and courtesy.

On the surface, he has a good point. The suspect appears to have been poorly treated.

Beneath the surface, why don’t barristers apologise?

If we dig beneath the surface a different picture emerges. We know the police have apologised when they have made mistakes. Two questions have to be explored. First, have the police acted inappropriately? Mr Scott believes they have for the three reasons he provided. Was Lord Brammell treated differently than any other high profile figure in a similar situation? Was he questioned aggressively for long periods of time? Was held in a cell for hours or days? We have no reports that he faced aggressive or difficult questions under harsh conditions nor of any time in the cells. Was he treated worse than others? Mr Scott provides no evidence that he was. What he overlooks is that Lord Brammell had many powerful friends lobbying on his behalf who publicly decried his treatment. The newspaper gave them favourable coverage. One can confidently assume that the public claims were matched by private lobbying of the MPS and to HMG. His friends, allies, and supporters had a sympathetic platform to express their displeasure. He had sympathetic journalists and commentators to defend him with others who could criticize and lobby the police. Most importantly he had allies who could, and did, attack the police and Exaro. Does the average person receive this support or have access to such a powerful network? In a sense, he has been treated differently and with greater care than the average person for this reason as more pressure on his behalf could be brought to bear on the MPS.

Barristers can inflict a lot of damage, but who apologizes?

Second, is the way he has been treated worthy of an apology? Here we need to compare the case to another profession. Let’s consider the behaviour of the barristers in the case of Abby who was questioned aggressively by seven consecutive barristers[2] every day  over three weeks![3] Yet none of the barristers apologised to the witnesses and the victims for their harsh, direct, questioning when their client was found guilty. If the witness breaks down or suffers from the experience, does the barrister apologise? No. If they are found guilty should the barrister apologise? They got it wrong and their client is guilty. Their best efforts to discredit the witness and their evidence failed. Surely, that is worthy of an apology. Yet, we cannot find one barrister or barrister who has ever apologised for their behaviour in court.[4] Yet, Mr Scott wants the police to apologise.

It is bad for business but no one apologizes.

The case and behaviour of the barristers caught the Bar Council’s attention[5]. In their July 2013 meeting they expressed concern about the adverse publicity.

Members will have read in the press of a number of cases, including a well-publicised grooming trial, where there has been criticism of the manner in which a vulnerable victim or witness has been cross-examined. There are tales of young, vulnerable girls being in the witness box for twelve days, facing aggressive cross-examination. These stories do not sit well with the public. These instances need to be investigated, explained and understood as appropriate.

The Chairman is working with the BSB, Advocacy Training Council (ATC) and senior judiciary to see if there is a way to prevent the ordeal that people are going through and to avoid the most appalling publicity. Lawyers are never popular and this makes advocates look as if what they are doing is inimical to justice.

The Bar Council minutes show that they are concerned that the behaviour is “bad for business.” One could be excused from recalling the scene in the film The Godfather when the Consiglieri warns that the proposed deal was “bad for business”. The Bar Council minutes do not record that anyone expressed remorse or concern for the damage done. There is no call to apologise. Yet, Mr Scott believes that the MPS need to apologise.

I am only doing my job, is that a legitimate defence since Eichmann?

A barrister might claim “I am only doing my job”. That may be true but the MPS can have the same defence. Yet, Mr Scott demands that the MPS apologies. The barrister might argue that the did not know their client was guilty and they could only know that after the court had judged them. The same principle exists for the police. Yet, the MPS are to apologies but not the barrister.

The barrister might argue that they have to test the evidence for they start with the idea that their client is innocent so they have to go to court to test the evidence and argue the case. If they didn’t do that, they would not be doing their job. The same, though, applies to the MPS. They cannot dismiss an allegation until they have investigated. Yet, Mr Scott wants the police to apologise.

Is the implicit argument that men of Lord Brammell’s stature are to be immune from such claims or is it that their stature requires that they be treated differently? If that is the case, then we do not have the rule of law that promises equality before the law, we have rule by privilege. The privileged are to be treated differently. Not only that, the barristers are not to apologise but the police must. Why is it that the Police have to apologise but not the barristers? Is there a deeper argument at work here?

The argument and action suggest a deeper story is to be considered.

If we follow the argument and action of the post a deeper theme emerges. A theme that suggests a possible unstated intent. The structure combines the police criticism with details about penalties for false allegations and wasting police time. If the police are criticised for an investigation, it suggests that they are to be encouraged to pursue the complainant for wasting police time. It makes victims aware of the potential cost of even making an allegation which could to deter future allegations against the powerful and privileged. Even if they bring someone to trial, they know the cost will be high. As one victim said, they would not go through it again.[6] From this intent, a second concern emerges. Will the post reassure powerful perpetrators that the police will not act robustly on allegations? The police may hesitate before an investigation against a powerful or privileged figure. They will need to be convinced by an already reluctant victim who will fear being charged with time wasting. Even if the accuser takes this risk, the perpetrator knows that they can unleash their barrister to force their accuser to relive the alleged incident in excruciating detail. In much the same way an interrogator seeks to break his captive with a barrage of questions, the barrister can discredit the accuser with the steady refrain of “you are a liar”, “you are making this up”, “Utter fantasy, is it not?” until they abandon their testimony. One wants them to talk; the other wants them silenced. Perhaps Mr Scott could explain why we never read of barristers behaving this way to the powerful. Do they attack the abuse of power as strongly as they attack the character of the vulnerable victims?

Does the law protect the powerful at the expense of the weak?

The law favours; society defers; and the criminal justice system rarely punishes the powerful. The powerful are protected by resources and networks, which give them the ability to influences those who seek to hold them to account. If there is rule of law, it should apply equally to all no matter how powerful where the police investigate allegations no matter where they lead without fear or favour. The reality is that for the past 60 years the rule of law has been an occasional visitor to child sexual abuse cases by high profile perpetrators. Curiously, Mr Scott does not want the police to apologise for those failings.

Mr. Scott wants the police to apologise to the powerful, protected, and privileged yet the barristers who attack the poor, weak, and vulnerable victims on behalf of guilty clients never have to apologise. Why?

[1] http://barristerblogger.com/2016/01/26/1677/#more-1677

[2] One wonders why after the 3^rd barrister making the same points did not succeed the remaining four thought they would succeed?

[3] http://www.theguardian.com/law/2013/may/19/lawyers-oxford-abuse-ring

[4] The Bar Council was suitably concerned about the case and others to raise it at one of their meetings. http://www.barcouncil.org.uk/4767.aspx see also http://www.newlawjournal.co.uk/nlj/content/question-time

[5] The case is not isolated it is one of many. It is hard to believe but the UK criminal justice system has improved in recent years with some guidance for treating vulnerable witnesses. One can only imagine how brutal the barristers could have been in the past assuming a victim could convince the police to investigate and the Crown Prosecution Service to bring a prosecution. See for example, http://www.independent.co.uk/news/uk/crime/court-is-just-as-traumatic-girl-who-faced-aggressive-cross-examination-aged-nine-says-she-has-never-8631662.html and http://www.felicitygerry.com/wp-content/uploads/2014/10/IARS-Vulnerable-witnesses-dignity-and-respect-FRGQC-FINAL.pdf

[6] One victim who suffered such an ordeal when they gave evidence said they would never give evidence again as it was worse than had their abuser gone free. http://www.bbc.co.uk/news/world-europe-jersey-27949117

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