At first glance it beggars belief that Alison Levitt QC, the principal legal advisor to the Director of Public Prosecutions (DPP) , took the decision to prosecute the one time chief executive of News International and erstwhile editor of the News of the World (NoW) Rebekah Brooks and others associated with her beggars belief. Levitt was the subject of tabloid stories, including coverage by the NoW , relating to her affair with a high profile peer , Lord Carlile, the Liberal Democrat who is in charge of reviewing Britain’s anti-terror laws. (Levitt and Carlile are now married). The affair was very messy and its exposure in sensationalist fashion must have been a very unpleasant experience for Levitt, something which cannot have disposed her to view the tabloids with equanimity (http://www.dailymail.co.uk/news/article-431884/Anti-terror-peer-dumps-boring-wife-glamorous-barrister.html#ixzz1vL8lAqTi ).
Unsurprisingly, Levitt denies that she was in any way influenced by her treatment and maintains that she was not even aware that the NoW had run any stories about her affair when she made her decision to prosecute, a claim which may raise a few eyebrows because it was given considerable tabloid exposure and a common behaviour of people caught in a media storm is to obsessively read everything printed about them. It is also worth bearing in mind that those abused by the media tend to blame the media generally rather than just a particular newspaper or broadcaster (http://www.dailymail.co.uk/news/article-2146209/Rebekah-Brooks-preposterous-claim-tabloid-expose-prosecutors-affair-peer-undermine-charges-her.html#ixzz1vL9BWHCg). But whatever the truth of her feelings towards the NoW – and she could have been biased without recognising she was being biased – she should have stood down. Natural justice requires that those making decisions within the justice system should not only be disinterested but be seen to be disinterested. Unsurprisingly, Brooks is now considering whether to launch a judicial review on the decision to prosecute on the grounds of potential bias on the part of Levitt. (http://www.telegraph.co.uk/news/uknews/phone-hacking/9273276/Phone-hacking-Rebekah-Brooks-could-challenge-charging-decision-because-prosecutor-was-victim-of-tabloid-sting.html).
It is noteworthy that Starmer’s predecessor as DPP, Ken Macdonald, had no hesitation is standing down from a another politically sensitive case simply because of his association with people could be taken as evidence of partiality. MacDonald was the co-founder of Matrix Chambers which he established with Cherie Blair whilst Tony Blair was Prime Minister. Because of this relationship, he excused himself from involvement in deciding what should be done in the “cash for honours” investigations (http://news.bbc.co.uk/1/hi/4812822.stm), although the Mail reported that “The DPP excluded himself from the decision on whether to prosecute to avoid claims of a potential conflict of interests but has been regularly briefed by Miss Dowd on the investigation.” (http://www.dailymail.co.uk/news/article-469857/The-woman-called-halt-cash-honours-case.html).
Whether the case came to her in the normal course of her duties or whether she was allocated it by her boss, the present DPP Keir Starmer, Levitt should have refused to take it on the ground that she could not be seen as disinterested. Starmer, who cannot have been ignorant of Levitt’s history with the tabloids because of the high-profile nature of the story and the fact that it involved a senior member of the legal profession , Lord Carlile – the legal world is a very small one. Consequently, he should have given the case to someone else if he was responsible for allocating it or, if Levitt received the case in the normal course of her duties, he should taken the case from her when he became aware that she was or would be handling it. However, it is wildly improbable that such a high-profile case as that against Rebekah Brooks would not have involved the DPP as soon as it was submitted to the Crown Prosecution Service (CPS), at least in the sense that he would have taken an interest in who was dealing with it and how the CPS assessment was proceeding. The idea that it would simply have come to the CPS and been allocated to a junior CPS lawyer until working its way up to Levitt seems most unlikely. It is also improbable that Levitt as the principal legal adviser to the DPP would not have discussed the case with Starmer . Whatever happened, the bottom line is that the DPP is ultimately responsible for any decision to prosecute and has the final say in whether a prosecution will occur.
The fact that Starmer did not do remove Levitt from the case argues for one of three things: an alarming naivety on his part; a stupidly arrogant belief that the CPS could get away with ignoring the dictates of natural justice because they are part of the UK power elite or the deliberate choice of someone (Levitt) who would not seem disinterested to make the decision in order to contaminate the prosecution.
There are not enough facts in the public fold to be certain of why Levitt’s very obvious disqualification for taking the case was not acted upon by Starmer, but I can paint a plausible scenario to explain why he did not act. Brooks (and her fellow accused her husband Charlie) is not merely someone who has connections with leading politicians through her employment with News International. She certainly had a more than a business relationship with David Cameron and met Tony Blair when he was Prime Minister frequently enough to suggest that there was a social element to their relationship). There has also been considerable interaction between leading Labour and Tory politicians and News International and the Murdochs as a family, for example, Tony Blair is godfather to one of Rupert Murdoch’s children by his present wife (http://www.bbc.co.uk/news/uk-politics-14785501)
To any feelings of personal friendship or obligation felt by Labour and Tory politicians must be added the likelihood of News International having a good deal of dirt on the politicians which even if it did not point to criminal activity could be hideously embarrassing for the likes of still active politicians such Cameron and retired ones like Blair, who if they have no formal power still have influence. The politicians the Murdochs have seduced are in a Mexican stand-off with News International.
Then there is the position of the DPP. There is no proper separation of powers between the executive and the justice system in the UK. Three members of the government – the Secretary of State for Justice/Lord Chancellor, the Attorney-General and the Solicitor-General – have oversight of the justice system. The DPP is appointed by the Attorney-General and is ultimately responsible to him. As already mentioned, Starmer’s predecessor Ken Macdonald was appointed to the position by the Blair government despite having very intimate connections with the Blairs. It stretches credulity to believe that any DPP is actually untouched by political considerations and sympathies or does not make decisions which are influenced, one way or another, by those considerations and sympathies. .
Given the choice the Government and the Opposition, at least at the level of the front benches, would fervently wish that no court cases involving the likes of Brooks were taking place. The problem is that having set up the Leveson Inquiry and pressed the police to investigate, the Government cannot crudely fix matters by ensuring that either the police investigations come to nothing or the CPS says that a conviction is improbable or that prosecution would not be in the public interest. That would cause to big a stink. Instead they need police to go through the motions of a serious investigation and for the CPS to be seen to acting impartially, whilst at the same time taking action to ensure that no one of importance is actually found guilty or even better manufacture a reason to drop the prosecution .
There are various ways a prosecution can be fixed to fail. A favourite is “over charging”. This means bringing charges which are too serious for the evidence to support. A classic example is the Jeremy Thorpe case in the 1970s when the leader of the Liberals was charged with and acquitted of a charge of conspiracy to murder Norman Scott who claimed to have had a homosexual relationship with Thorpe. What Thorpe should have been charged with was conspiracy to commit a lesser form of assault such as GBH. Other favourite ways of ensuring a verdict of innocent are losing evidence or simply conducting a case incompetently, for example, by making a Horlicks of cross examinations.
What may have happened in the case of Rebekah Brooks et al is this: the CPS decision to prosecute has been deliberately tainted by the employment of Levitt. The tainting opens up a number of possibilities to get rid of prosecution altogether. Brooks might obtain a judicial review which finds that the decision to prosecute is tainted and the prosecution cannot proceed unless the case is reviewed by someone else at the CPS. Alternatively, the mere threat of such action may persuade Starmer that he cannot let the original decision stand. In either case that raises a problem. If Levitt’s decision is set aside, who in the CPS could examine the case anew and be considered truly impartial? Not Starmer and that would raise a further problem because anyone else a new review of the case would have it in mind that the head of the CPS had agreed with Levitt’s decision to prosecute. Human nature being what it is, subordinates are normally reluctant to go against what the boss has agreed.
All of that would give Rebekah’s Brooks’ lawyers ample opportunity to claim that no prosecution should go ahead because no impartial judgement of the merits of the case could take place. If Levitt did not seek legal advice from outside the CPS this argument would be strengthened. Her lawyers could also argue that because of the publicity generated by and around Levitt’s prima facie partiality, it would be impossible for Brooks and her fellow accused to get a fair trial. Faced with all that there is a fair chance the prosecution would be dropped for one reason or another. If that happened it would provide the best outcome for politicians and News International because the politicians could claim that a proper investigation had occurred and that a prosecution failed to take place simply because of the unfortunate behaviour of the CPS and there would be no embarrassing convictions of News International one-time employees.
It will be interesting to see whether this case ever gets to court. If it does, watch out for the quality of the evidence, evidence going missing, which witnesses are and are not called and the performance of the prosecutor, especially in cross-examination.