Posted on 7th September 2016
“Chilcot lays bare a catastrophic error of judgement. That is a damning indictment in history. Whether it is an indictment for a trial is less clear.”
‘Let justice be done though the heavens fall’ is a maxim and notion as old as the scriptures. The phrase gained notoriety when district attorney Jim Garrison used it in the 1967 prosecution of Clay Shaw for the murder of John F Kennedy (it was subsequently immortalised in Oliver Stone’s JFK film).
It is this principle that is held aloft whenever there are high-profile acquittals or where the Court of Appeal overturns convictions. No matter how shocking to the establishment or how it shakes legal or political foundations, justice must be done. Think of when the Guildford Four convictions were overturned. Lord Lane’s infamous conclusion about the police – ‘[t]he officers must have lied’ – was shocking to a court system accustomed to accepting their accounts as the truth.
The maxim signifies the belief that justice must be realised, regardless of the circumstances. Perhaps Immanuel Kant said it best in 1795: ‘Let justice reign even if all the rascals in the world should perish from it.’ However, criminal law in the UK can be averse to upsetting the apple cart.
It took years of campaigning and painstaking legal work for the Guildford Four convictions to be overturned. It seemed as if the ‘establishment’ could not admit what had happened (as in Hillsborough, Bloody Sunday, the Tottenham Three and the still-to-be-reckoned-with disgrace of Orgreave).
Although convictions have been overturned and inquiries have been established that have cast doubt on what happened, there has not been one criminal conviction of any police or state figure arising from these cases.
That is worth repeating: despite scandals where state authorities have been shown to have lied, where numerous people have died, where there have been cover-ups, where innocent people have been framed, no one has been held to account and there has not been a single conviction.
The last major inquiry to report was, of course, Chilcot. In civil service language, it delivered a withering indictment of Tony Blair and the decision to go to war. Chilcot indicated that Blair presented judgements about Iraq’s capabilities ‘with a certainty that was not justified ‘. Perhaps the most startling example comes from Blair’s own pen in his foreword to the dossier: ‘What I believe the assessed intelligence has established beyond doubt is that Saddam has continued to produce chemical and biological weapons.’ While Blair may have thought this was established beyond doubt, the intelligence really did not go that far and turned out to be wrong in any case. Moreover, that assertion may well have persuaded MPs to vote for the war.
Chilcot’s report has led to calls for Blair to face a criminal charge of misconduct in public office. This common law offence which dates back to the 18th century (and whose roots can be traced back even further), has recently been criticised for vagueness by the government’s law reform advisers. It may be committed when a public officer , acting as such, wilfully misconducts himself or herself to such a degree as to amount to an abuse of the public’s trust in him or her and does so without reasonable excuse or justification.
A major problem that any prosecution could face is that the conduct has to be ‘wilful’. Chilcot does not go so far as to say that Blair deliberately lied; rather, it lays bare a catastrophic error of judgement, one that led to a war where hundreds of thousands of people died. That is a damning indictment in history. Whether it is an indictment for a trial is less clear.
State individuals should be held to account and, as legal teams pore over Chilcot to assess the prospects of any civil or criminal action, they should bear in mind the maxim above: justice no matter what. Prosecution decisions, though, should be based on evidence and law, not prejudice or politics.
I started this piece with a quotation used by Jim Garrison. What is less known about the JFK prosecution is that many felt it was tainted by Garrison’s own politics and homophobic views. Prosecutions should be fair no matter what, based on the evidence and law, irrespective of consequences. Criminal defence lawyers know that better than most.
This article first appeared in the September edition of LAG