The slow process of justice has become a punishment in itself

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By Kenneth Roy

We are approaching the first anniversary of the arrest by Strathclyde Police of the prime minister’s former director of communications, Andy Coulson. He was lifted – as they say in Glasgow – in an atmosphere of high drama.

Officers from Scotland called at his house in Dulwich, south London, at 630am in the sort of ‘dawn raid’ which has become a hallmark of the police investigation into the phone hacking scandal. So urgent was this matter that Mr Coulson was that very day driven all the way to Govan police station in Glasgow, where he arrived at 3.20 in the afternoon.

After nearly six hours of questioning, he was charged with perjury in connection with his evidence at the Tommy Sheridan trial. He was released on bail and left the police station at 9.30pm after an ordeal lasting 15 hours and involving a round trip of 800 miles.

Since then, quite a lot has happened to Strathclyde Police. It has been abolished and subsumed into the new all-Scotland authority led by the fortmer chief constable of Strathclyde, Stephen House. But not a lot seems to have happened to the case against Andy Coulson. His career is wrecked, his house has had to be put up for sale, and the threat of a prison sentence, if found guilty, hangs over him.

A few months later, in August, one of Mr Coulson’s ex-colleagues, the former editor of the News of the World in Scotland, Bob Bird, was held in the same police station – four hours in his case – before being charged with attempting to pervert the course of justice in the trial of Tommy Sheridan. The story was the leading item on that night’s Reporting Scotland; indeed it fell to Mr Bird’s former wife, Jackie, to introduce it. The newspapers were full of it the following morning. ‘A report will be submitted to the procurator fiscal in due course’, said a spokesperson for the now-extinct Strathclyde Police.

It is worth pausing at the phrase ‘in due course’ to consider what it means, if anything. Eleven months have elapsed since the arrest and charge of Mr Coulson, eight months since the arrest and charge of Mr Bird. How long do the police need? How long does the procurator fiscal need? Is any reasonable concept of ‘due course’ not now in danger of being exhausted?

An American criminologist, Malcolm Feeley, has coined the phrase ‘The process is the punishment’. It refers to the many people in the criminal justice system – Mr Coulson and Mr Bird may be among them – who serve a sentence which is not imposed by any court. The sentence takes the form of a long period of personal uncertainty and anguish, often accompanied by ill-health and substantial loss of earnings, while a paralysed ‘system’ takes months, often years, to bring cases to trial. Mr Sheridan himself was one such victim.

Neil Wallis, a former News of the World executive, has described how the process felt at the receiving end. The police arrived mob-handed at his house, stripped his office, trawled his laptop, grabbed phones and notebooks, and dumped him in a cell at Hammersmith police station. He was then subjected to four hours of ill-informed, sometimes irrelevant questions about illegality at the newspaper at a time when he was not employed by it. For almost two years he was required to attend periodically at police stations, re-bailed on each occasion. He lost his job, his family suffered, and he resorted to pills to enable him to sleep. Finally he was informed that no further action was being taken against him.

After the hacking scandal broke in the summer of 2011, three concurrent police investigations were set up in London. The first, Operation Weeting, continues to investigate the hacking of voice messages by the News of he World. Ninety-six officers are employed on Operation Weeting and 32 people have been arrested at a cost to the public of £11 million. To date there has not been a single conviction.

The second, Operation Elveden, is investigating corrupt payments to police officers by journalists. This requires the services of 70 officers at a cost, so far, of £5 million. Its track record is slightly more impressive than Operation Weeting’s. There has been one conviction – that of a Metropolitan police officer, April Casburn, who was recently sent down for 15 months. That leaves 59 others who have been arrested as part of Operation Elveden, some of whom may face criminal proceedings at unspecified dates in the mid to long-term future.

The third, and most obscure, is Operation Tuleta, which is looking into the hacking of emails. Nineteen investigators are employed on Tuleta at a cost of £1.2 million. They have made 20 arrests. But not one of them has led to a conviction.

There is a growing suspicion that, for many of the people implicated in the hacking scandal, the process has indeed become the punishment and that some, perhaps a majority, will never go to trial. A leading human rights lawyer, Lord Lester, has said: ‘If people are going to be placed under investigation, it must be carried out with efficiency and speed’. Even the attorney-general, Dominic Grieve, has privately expressed concern at the stress caused to subjects who enjoy a presumption of innocence but whose livelihood and health have been ruined by the oppressively protracted police investigation.

The English system must account for its own defects, but in Scotland we used to pride ourselves on delivering justice with efficiency and speed. It is time to re-introduce both.

Courtesy of Kenneth Roy and the Scottish Review