Burnham’s misjudged attack on the judiciary

The Mayor of Greater Manchester, Andrew Burnham, has publicly criticised a judge, calling his decision to end a criminal trial on legal grounds a ‘disgrace’. The judge is Mr Justice William Davis, a highly respected ‘red judge’ — that is the top level of judge we have who do trials. They are the best we have. There are 105 in our country.

This is a disgrace and so disrespectful to the families.

Why was it not left to the jury to decide?

From what I have witnessed first-hand over the last four years, I can only conclude that the scales of justice in this country are weighed heavily against ordinary people. https://t.co/Ht6MHneEUv

— Andy Burnham (@AndyBurnhamGM) May 26, 2021

This is an attack on the judiciary and the independence of judges. But what you think of people who do such things reveals much about your politics.

The charitable argument is that Mr Burnham is confused. That is no insult, the legal system is confusing — I am not an expert on crime, for example. But I can confirm that in criminal trials, law is for the judge and facts are for the jury.

The question for the judge was a legal one. Judges set the parameters of trials — whether the charges are suitable, what evidence is laid before the jury — and juries decide whether the facts fit the charges in the way alleged by the prosecution based on the evidence before them.

In this trial, the one Burnham decided to opine on, the alleged wrong was that documents were somehow changed or created in a way that perverted justice. Charges were brought against three men and the prosecution sought to argue that they had perverted the course of justice during an inquiry.

A truly horrible thing happened — the Hillsborough disaster. An inquiry was set up to find out exactly what happened. But the inquiry, the Taylor Inquiry, was just that. An inquiry is not a court prosecution. The judge’s conclusion was very simple:

“As a non-statutory inquiry it had no power to compel witnesses and it did not take evidence on oath.

It was not a court. You can only pervert justice if you try to mislead a court. So, the trial failed. The charges brought did not fit the facts alleged by the prosecution. It would be like prosecuting someone for murder when their alleged victim was known to be alive. Perverting the course of justice has a specific meaning — even if the facts had occurred in the way the prosecution alleged, the behaviour of the three men, according to the judge, would not fit the definition of 'perverting the course of justice'.

You might think court proceedings are old fashioned, but isn’t that the whole point? You might be the best liar in the land, but when you get in a witness box and take an oath, doesn’t that freak you out even a tad?

The very simple answer to Mr Burnham’s question ‘Why was it not left to the jury to decide?’ is because questions of law never are. The more complex is because certain things are formal and have rules, others don’t.

As a former member of parliament, he ought to be used to that idea.

Now, I am the last person to encourage deference. The 105 High Court judges are each capable of being wrong. We know this because we have not one but two levels of appeal just in case. Those are first the Court of Appeal and after that the Supreme Court.

Until the Court of Appeal says this judge is wrong, he isn’t. What we might consider is how sensitive he was when he said:

“The amendment and alteration of self-penned accounts has caused very considerable anxiety and distress amongst those most affected by the Hillsborough disaster.

But that’s kindness and sensitivity and we don’t need this judge to be kind (although we might be grateful he was). We all need him to be right and for the Court of Appeal to ask questions if there are any to ask — not any politician.