Oh, Mandy! Even you are entitled to a fair trial 

Dr Huw Evans

Due process and a right to a fair trial are fundamental to a just society. We would want these things if we were on trial. By extension we should want them for others; no matter what we think of them, or if we think they are guilty.

This applies even to Peter Mandelson.

Mandelson’s alleged wrongdoing

Following the release of material by the US Department of Justice regarding Jeffrey Epstein, there are allegations that Mandelson received financial payments from Epstein and disclosed confidential information while a serving UK minister.

The police are investigating. This may lead to a criminal prosecution which, if it does, may lead to Mandelson being convicted and sentenced. That process should be fair to him (as with any accused person) from the start until the conclusion.

What Robert Jenrick says

This fairness, however, doesn’t seem to have been accorded to Mandelson by (new) Reform UK MP, Robert Jenrick, who declared in Parliament:

Now we are told that this man leaked confidential information to a convicted sex offender when he was a Cabinet Minister and took tens of thousands of pounds in secret backhanders. It is a total disgrace… Peter Mandelson has clearly broken the law and now stands accused of serious misconduct in public office and should be tried for his offences.

So, according to Jenrick, Mandelson took ‘backhanders’, has ‘clearly broken the law’ and should be prosecuted for ‘his offences’.

Why have an investigation or trial at all as (again, according to Jenrick) he is obviously guilty? Just go straight to sentencing him. Money could be saved that could be better spent on things such as the NHS or fighting child poverty.

Justice

Self-referentially, one of the hallmarks of a just society is the quality of its justice system. There is a fundamental principle that an accused person is entitled to a fair trial which includes the presumption that they are innocent until proved guilty.

This principle is recognised as a human right: see article 6 of the European Convention on Human Rights. Article 6 has also been directly incorporated into UK domestic law by the Human Rights Act 1998.

As there is a presumption of innocence, it is for the prosecution to prove the case against an accused person beyond reasonable doubt; it isn’t for an accused person to prove their innocence. It is important, therefore, that an accused person’s case is not prejudiced: such as by well-publicised statements by public figures like Robert Jenrick about an accused person’s presumed guilt.

Contempt of court

The law about contempt of court mirrors this approach. According to the Contempt of Court Act 1981 as soon as a case is ‘active’ (e.g. a person is arrested) nothing must be done that creates a ‘substantial risk’ that justice in the case ‘will be seriously impeded or prejudiced’. Breach is contempt of court and is punishable with a fine, imprisonment or both.

Making public statements that a person is guilty of an offence before conviction can amount to contempt as it could, for example, influence a jury in reaching its verdict.

Let’s though put current things in context. As Mandelson has not been arrested, the case isn’t yet active, and the Contempt of Court Act doesn’t apply. So, assertion of his guilt now doesn’t amount to contempt under the Act.

But it could do if the case became active. And, on any ethically reasoned basis, that assertion shouldn’t be made before a case becomes active. An earlier assertion can still influence public opinion after the case becomes active. It is also possible that a case never becomes active and a person is not prosecuted. Public assertions of guilt are then left hanging, unless a retraction is made.

Parliamentary privilege

MPs also have Parliamentary privilege when making statements in Parliament which gives legal immunity from legal consequences that would normally apply. This includes contempt of court.

One Welsh connected example was  the naming of Ryan Giggs in 2011 by Liberal Democrat MP, John Hemming, in Parliament going behind an injunction giving Giggs anonymity as the person having an alleged affair with reality TV star Imogen Thomas.

Hemming had immunity from contempt proceedings as did any person who reported what he said. As such, the injunction’s effect was totally undermined. Sympathy (or lack of it) for Giggs is not the point.

People in public life should respect the law and not use their position as a platform for grandstanding when the effect is to undermine the legal rights of others. With Ryan Giggs, John Hemming thought he had a legitimate point; about wealthy celebrities using the law to get unjustified anonymity. But he could have done this differently by arguing about the issues and not naming Giggs.

Similarly, Robert Jenrick could still have expressed his concern about Mandelson without condemning him as a guilty man. Noticeably, other MPs were able to do so in that same debate.

What is also concerning about Jenrick is that he practised as a solicitor and until recently was shadow justice secretary. The right to a fair trial should be in his DNA and take precedence over, for instance, trying to gain political advantage.

Misconduct in public office

It looks like Mendelson will be investigated for alleged misconduct in public office.  This is a common law offence which carries a maximum sentence of life imprisonment. The offence is due to be abolished and replaced by a new statutory offence in the Public Office (Accountability) Bill. Even if the law changes, it won’t apply retroactively; the common law offence will still cover past cases.

It’s not just Peter Mandelson

In addition to Mandelson, the Epstein scandal has exposed possible wrongdoing from a range of characters. They are all entitled to that same fairness, including Andrew Mountbatton-Windsor.