Should the presumption of innocence apply to Russell Brand in the court of public opinion, as it should in a court of law? It is a question that has sharply divided social media this past week, and both sides have a point. To say, as one prominent commentator did, that “the state” has to presume your innocence, whereas the “average person” does not, is simplifying things a bit. After all, the police will in practice often have to presume guilt if they hope to assemble enough evidence to charge a person.
Nevertheless, the presumption of innocence is a specific legal doctrine which seeks to limit the potential dangers arising from prosecution by the state. It is the most important decision-making rule in the criminal procedure.
Yet the precise implications of the rule, and the effects that it ought to have, are disputed by lawyers and legal academics. Many, for instance, think that a practice such as the use of the dock in British courts violates the presumption, as it risks prejudicing a defendant in front of a jury. Others disagree. But few would dispute that the core of the idea is that the prosecution must prove its case beyond a reasonable doubt. Today, English judges are advised to tell a jury that they must be “sure” of a defendant’s guilt before convicting.
The reason for the rule is commonly thought to be to protect the individual citizen from the power of the state, and the presumption does indeed have this effect. Nobody will have their property or liberty taken from them by the Crown’s judicial servants, unless the prosecutor, an agent of the Crown Prosecution Service, is able to make a jury or magistrate “sure” that the person violated the criminal law. This emphasis on liberty, however, obscures another side to this heavy burden of proof.
When a jury declares itself sure that the law was broken, it also implicitly declares its belief that the state’s immense penal power is being used in the public interest, and not being abused in pursuit of private or factional interests, for personal revenge or political advantage. In other words, the presumption of innocence protects the integrity and the authority of the state as a truly public institution. It reassures us, the Crown’s subjects, that the Crown’s agents are what they claim to be: the representatives of the supposed common interests protected by the criminal law, even if they sometimes get it wrong. That the presumption is a guarantee of the state’s authority is the underlying reason why it is so important in modern nations, and why even obviously repressive or corrupt regimes will often pretend to uphold it.
So, those who claim the presumption of innocence does not apply to public debate about Brand’s guilt are partly correct. The presumption is a core rule of public law which serves critical and specific political functions, and perhaps its name should be honoured by reserving it for legal proceedings. The weakness of their argument, however, is that the same considerations that lead the state to maintain the legal rule should lead ordinary citizens to be very cautious about public statements concerning the guilt of a person accused of wrongdoing.
When people who do not have direct evidence concerning Brand’s alleged offences make arguments that assume his guilt, the rest of us know that, since they neither witnessed anything nor heard all the evidence tested in court, they cannot possibly know for “sure” one way or the other. As a result, they reveal themselves as people who share the qualities of a state that does not maintain the presumption of innocence in its legal procedures.
And this can have certain potency. As John Stuart Mill pointed out long ago, the law and its police, courts and prisons are not the only instrument of censorship. Similarly, they are not the only way to restrict the lives of citizens. Stoking outrage, hysteria and fear in civil society can do that too. Consider how YouTube has already decided to stop Brand making any money from his channel, though none of the accusations is proved.
Second, those who imply guilt without sufficient knowledge also reveal themselves to be people who are not capable of exercising real public authority, because their commitment to the public interest cannot be trusted. They are willing to defame another person on mere suspicion that the accused might have broken the law. True, they are not claiming to represent the public in the formal way a prosecutor does. Nevertheless, they discount the possibility that the accused may have done nothing contrary to the public interest in order to grind their personal or political axe.
This transformation of a criminal accusation into a political weapon confuses law with politics. Of course, the criminal law is the outcome of politics. When our political representatives decide that it is in the public interest to condemn and exclude a particular wrongdoing from social life, they make it a matter for prosecution and punishment by the state. Whether or not they are right about what is in the public interest is itself what political dispute is about; think of drugs laws or hate speech offences. But it is a serious mistake to imagine that, because law is the outcome of politics, law is a good way to do politics. Publicly assuming that unproven criminal accusations are true for political gain only undermines trust in the good faith of political participants, and trust in public life as a whole.
If the authorities were to take no action, to fail to investigate an individual following public accusations, then matters might be different. But that is a bridge we are not even close to crossing yet. In the meantime, the relish with which some commentators seem to discuss accusations of criminal wrongdoing is a marker of a political culture that is instinctively repressive and simultaneously unserious. It is not even two months since Kevin Spacey was acquitted of similar charges that had served to destroy his career, yet here we are again. Perhaps this time, Russell Brand will be proved guilty. Either way, those commentators who have already proclaimed his guilt will have only reinforced an idea propounded by Brand himself: that they cannot be trusted with the public interest.