I wrote not too long ago about Lord Rodger’s funeral.
One of the stranger elements of that day was my reaction to one of the other mourners. As I sat in the crematorium, looking out for familiar faces, as one regrettably does on such occasions, my heart was suddenly chilled by the entry of Lord (Andrew) Hardie.
Lord Hardie is a hanging judge. His presence on the list, as being down to deal with your case, is an imperative for any defence lawyer to try anything, and I mean anything, to try and get the matter moved elsewhere. It is not unknown for genealogists to be engaged in the hope of locating a distant, recently deceased, relative whose funeral must be attended. For, believe me, Lord Hardie is a man who, while regularly appealed by the defence for being too punitive, would probably resign and retire in self imposed disgrace if he were ever subject to a Crown appeal for having been to lenient.
But, do you know what, he is part of the system. If anybody tried to have a quiet word in his ear that he might be more considerate of modern sentencing policy, he would dismiss them with contempt. And if anybody suggested that it might be politically convenient for a case to work out in a particular way he would undoubtedly phone the Police.
That’s what goes with living in a democracy. You get terrible, reactionary judges. But you never question for a moment that you are nonetheless dealing with an independent judiciary. I nearly wrote “for good or ill” about an independent judiciary but there is really no “ill” about it.
We have judges who make decisions, and appeal courts who, in the face of decisions taken in good faith but nonetheless incorrectly, proceed to correct these decisions.
I can’t really get my head around the events of the last week.
I love political thrillers. A rising star MP pushes their researcher under a tube train to avoid the embarrassing revelation of their affair; or a senior cabinet minister throws a journalist to her death for having deduced his earlier crimes; a political activist is murdered to cover up her discovery of an illegal nuclear weapons programme. Brilliant entertainment.
But brilliant only because you never really believe this could happen in real life. And also because the entertainment itself is predicated on the assumption that, once the conspiracy is exposed, there will be honest politicians to denounce it; honest cops to investigate it and an independent judiciary to consign the surviving conspirators to their just deserts.
The problem with the last week is not that real life has imitated fiction: it is that the re-assuring assumptions that underpin that fiction have proved to be less certain in real life. And that’s not entertaining at all; it is frightening.
Obviously the revelations about the Sun and Gordon Brown’s wee boy are horrific but let’s not lose sight of what happened here the first time round. This happened when Gordon Brown was, on anybody’s view, at least the second most important politician in Britain with an impregnable Parliamentary majority behind him. If he had decided to take on Murdoch he would have had the enthusiastic support not only of his entire political Party and, given the issue, of the overwhelming majority of the British people. Even the PCC might have felt obliged to express mild disapproval of the publication involved, although admittedly there could have been no certainty of that. So, what did Gordon actually do? He cut a deal about the terms of publication. Are we really to believe that was because New Labour feared that Murdoch might otherwise endorse William Hague?
And then there’s the Polis. Where do we start with this? Let’s just ignore the Met. It is clear the Cops investigating the Milly Dowler case knew that her phone was being hacked and that this potentially interfered with their investigation. Nonetheless, they also did nothing, not even alerting the family informally that those in the press posing as their friends might actually be the exact opposite. Why? At best because they also were too scared of the retribution that might be visited upon them and that they would look around in vain for allies if that happened.
But finally there is the judiciary. Actually, they come out of this reasonably well. It was in the end judges who forced News International or, indirectly, the Police, to disclose the full extent of the phone hacking scandal. But, there is another slightly sinister detail in the reporting of the last two days. In 2003-05 misuse of the Police National Computer on behalf of the News of the World was traced back to one specific junior police officer Devon and Cornwall who had allegedly provided a private detective agency acting for the tabloid press with PNC information in relation to Gordon Brown and two other Labour MPs. A prosecution was launched. Before the start of the trial, before a witness was called, a County Court Judge ruled that the prosecution could not proceed as it would not be “a proportionate use of public resources”.
Now, I have represented many clients over the years charged with (in the legal term) pish. I have often, objectively, thought that a prosecution was not “a proportionate use of public resources” but I have accepted that, in the end, that is a decision for the Crown who have much wider considerations than the performance of a cost/benefit analysis, not least ensuring the respect for the rule of law.
I do not think that a motion to deny a prosecution as being a dis”proportionate use of public resources” is even competent in Scotland, but it must be in England, if that was, indeed, the ruling. Even in England however, how common is it? And has it ever previously (ever) been sustained when the victims of the alleged crime include a serving Cabinet Minister?
There are no certainties at the moment except that there do, hopefully, remain some people of integrity at the top of British public life. Somehow however I would be altogether happier if the Judge to lead the public inquiry was to be announced to be.............. Lord Hardie.