Following the Restoration in 1660, it was deemed fit that Oliver Cromwell and several of his leading supporters should stand trial for their role in the 1649 regicide of Charles 1. Notwithstanding that the accused were all deceased they were arraigned, tried and convicted of treason at the Old Bailey. Cromwell had died in 1658 and his cadaver had to be disinterred from Westminster Abbey. It was placed in the dock at the opening of the trial and later that same day, sentenced to death.
Notions of due process and the administration of justice have evolved since 1660. Thankfully the injustice of R v Cromwell and Others has not been repeated. Our criminal justice system would never countenance putting the dead on trial. A trial of an accused so patently unable to defend themselves is axiomatically unfair. This is why we regard the trial in 2013 of Sergei Magnitsky in Putin’s modern day Russia for tax evasion as sinister and reminiscent of the Stalinist purges of the 1930’s. Magnitsky’s unjust incarceration and death in custody in 2009 had led to widespread condemnation of the Kremlin. The trial was universally regarded in the West as a politically motivated charade intended to disparage his heroic memory as a campaigner against corruption.
The characteristic common to both these trials and to other infamous persecutions where the criminal law was used as a tool of oppression is that they were held not for the purpose of ensuring or establishing justice but for the purpose of influencing or satisfying public opinion. They were all show-trials.
Sir Edward Heath, a well-known ex-prime minister, died in 2005. Despite substantial cuts to its budget by the Home Office as part of austerity, Wiltshire Police decided in 2015 to commence a large-scale investigation, Operation Conifer. An investigation as to whether Heath had committed sex offences. At its outset, the Chief Constable, Mr Veale, appealed for the victims of the politician to come forward. He assured them that there would be no more establishment cover-ups.
Two years and over a million pounds later, Conifer completed its mission. On 5th October Mr Veale published a “Closure Report”. It concluded that were he alive today, Heath would have been interviewed under caution in respect of several allegations of abuse.
It seems that Mr Veale is a crusader disguised as a police officer. He believed he had a moral responsibility to try to prove that Heath was an abuser. Conifer assumed that he was guilty and its function was to vindicate his victims. As an exercise in investigating serious crime and in discovering evidence sufficient to bring a suspect before a court, it was always going to be futile. Its conclusion that there is sufficient cause to interview him under caution is in legal terms meaningless. Its outcome is a slur on a dead man’s reputation.
Conifer’s ambiguity however is not inconsequential. It enables some to claim no smoke without fire, others to rush to judgment. Insidiously it fuels conspiracy theorists on both sides. Those who believe that there was during the 1970’s a ring of paedophiles consisting of powerful individuals like Heath. And those who believe that claims of institutionalised child abuse are made by disordered fantasists who for example led the Met Police so disastrously astray in its probe of public figures such as Lord Bramall and Sir Leon Brittan.
Mr Veale is gravely mistaken in believing that Conifer was a legitimate police investigation. The police service owes a diffuse set of obligations to the public but these do not include a duty to redress injustice or to investigate potential abuses of power where no criminal proceedings could ever ensue. There are without any doubt serious lessons to be learnt concerning institutional child sex abuse in this country and.. Trying to resolve these difficult issues is the job of the ongoing Independent Inquiry into Child Sexual Abuse (IICSA), the public inquiry set up in 2015. It has an invidious task but it is getting on with it. There was no need for Mr Veale to carry out his own investigation into one deceased former politician and still less justification for the Home Office to have granted it special funding. As the DPP reminded Chief Constables so clearly in 2016, “Since deceased persons cannot be prosecuted, the Crown Prosecution Service will not make a charging decision in respect of a suspect who is deceased.” Returning to the days of Oliver Cromwell is not what this country needs and its law enforcement officials should focus on the investigation of cases where living perpetrators of serious crime have a chance of being brought to justice.
A shortened version of this article was published in The Times Law Brief and can be accessed here, behind a paywall.
Prosecuting companies for criminality in their supply chains – an impossible prospect
June 3 2023
The war in Ukraine, solicitors and the rule of law
May 29 2023
The Online Safety Bill and the Criminalisation of Senior Managers
May 27 2023