When is 'beyond reasonable doubt' not necessary? When you're talking Russia
The inquiry and report into the death of Alexander Litvinenko shows just how far our standards of justice have fallen, and how we no longer appear to even understand the basics. In fact, our legal standards have now been so diluted that we are prepared to pronounce judgement on the basis of mere “probabilities”, rather than the time-honoured standard of “beyond reasonable doubt”.
Some may wonder if I am about to defend the alleged killers of Mr Litvinenko, the FSB, or the Russian President. The answer is that I am defending nobody, since I don’t know nearly enough about the case to comment with any authority. What I am defending is the principle of justice, which involves a high burden of proof that is wholly lacking in the report, and in the subsequent comments in the media and by British lawmakers.
Let’s start by working backwards with the reaction to the report. The headlines in more than one British publication, and indeed others around the world, stated categorically that this was a state-sponsored killing, approved by Vladimir Putin himself. Furthermore, several members of the British Parliament came out with statements following the inquiry echoing that sentiment. David Davis, for instance, who can normally be relied on to add a sense of sanity into British politics, described the report’s conclusion as “astonishing” and warned the Government that it must take “tough action that will hurt Russia”. The Home Secretary, Theresa May, described it as an “unacceptable breach of international law”. The Prime Minister condemned what he called a “state-sponsored murder”.
But were their comments warranted by the conclusions of the report? Here are the words that led to our lawmakers coming out with these very definitive statements:
“When Mr [Andrey] Lugovoy poisoned Mr Litvinenko, it is probable that he did so under the direction of the FSB. I would add that I regard that as a strong probability. I have found that Mr [Dmitry] Kovtun also took part in the poisoning. I conclude therefore that he was also acting under FSB direction, possibly indirectly through Mr Lugovoy but probably to his knowledge…
The FSB operation to kill Mr Litvinenko was probably approved by Mr Patrushev and also by President Putin.”
You’ll notice I have underlined each occurrence of certain words, and hopefully you will also note that these words – by very definition – do not in any way carry the idea of certainty. Yet this did not stop some of our most prominent lawmakers from using it to declare definitively, and to demand action on that basis.
But what of the conclusions themselves? David Davis is right to say that they are astonishing, but not for the reason he thinks. It is astonishing because quite clearly, after a 6-month inquiry, the report’s author, Sir Robert Owen, was able to say nothing more than that the murder “probably” took place under the direction of the FSB. That it was “probably” approved by the head of the FSB at the time, Mr Patrushev. And that it was all done “probably” with the approval of the Russian President.
Well, I’m sorry but justice doesn’t deal with “probablies” (or even “maybes” or “could haves” for that matter). In fact, what these words mean, legally speaking, is the diametric opposite of what the media and British politicians have claimed they mean. Rather than indicating that there was sufficient evidence to implicate the FSB, or Mr Patrushev or Mr Putin, it means that there wasn’t. Suppositions, assumptions and inferences perhaps, but not sure and certain evidence. If there had been sufficient evidence, you can be sure that Sir Robert would have said “…was done with the approval of Mr Patrushev and Mr Putin”, or words to that effect. Yet he didn’t.
In other words, the fact that Sir Robert Owen was only able to put half-baked words like “probably” in his report, shows beyond reasonable doubt – not even “probably” – that he didn’t have the evidence he was looking for to firmly pin the blame on the Russian state. In which case he himself is guilty of a serious abuse of his authority in inserting statements for which he lacked evidence to make, and which he no doubt knew would be picked up by politicians and the media to go much further than he suggested. An objective conclusion would have admitted, “I have been unable to find conclusive evidence that the murder was carried out with the approval or knowledge of either the FSB or the Russian state”. But then that would have been a bit of a damp squib, wouldn’t it?
As to the actual inquiry, it is far more suspect than the British media and lawmakers have led us to suppose. Time and space won’t permit me to spell this out in any great length, but here are a few basic reasons why anyone with an interest in the establishing of objective truth will wonder whether – in all “probability” – it has really been served:
- This was an inquiry, not a trial, and inquiries, by their very nature, do not have the authority to declare on anyone’s guilt, let alone indulge in speculative “probabilities”.
- However, the inquiry effectively became a trial and did pronounce on the guilt of two men. Yet it did so in the absence of the defendants, their lawyers, and a jury. This is what is ordinarily known as a show trial.
- Although this was said to be a “Public Inquiry”, key parts of evidence were apparently so sensitive that they were given in secret. The defendants and their lawyers have been denied sight of this evidence, and mere mortals are just meant to believe that it exists.
- Part of the reason that Mr Lugovoy and Mr Kovtun refused to take part was because they and their lawyers were denied access to this secret evidence. In other words, they wouldn’t have been given access even if they had turned up.
- Some of the witnesses gave their evidence to the inquiry in secret, and their identities have not been disclosed to the defendants or their lawyers.
- Though Mr Lugovoy and Mr Kovtun refused to take part, the inquiry could still have appointed people to represent them, yet it failed to do so.
- The report admits that Mr Litvinenko’s death-bed statement implicating Mr Putin was not even written by Mr Litvinenko himself, but was written for him to sign. Yet it was still accepted as important evidence. Lawyers in a proper trial would have ripped this apart.
Let me just say that I have no idea whether Mr Lugovoy or Mr Kovtun were responsible for the death of Mr Litvinenko. Nor do I have any idea whether there was any state involvement. On the first point, there are others who may have had a motive for the killing. On the second point, I suspect that the answer is no, since the idea that the Russian state would send two apparently deadly assassins to London with a substance that they were apparently so fast and loose with they left traces of it everywhere, appears to me to be the sort of thing that might be dreamt up by a 3rd rate spy novel author. But this is just a hunch though. Call it “probably”. What is certain though, is that the inquiry-turned-trial does not even begin to come up to proper legal standards and ought to disturb anyone who is interested in a free and fair judicial system.
Let me end with a thought experiment. Let’s just say that the Russian authorities decide to hold a little “Public Inquiry” of their own, this time into the death of Mr Boris Berezovsky, long term Putin critic, and associate of Mr Litvinenko, who was found hanged in Britain in March 2013. And let’s say that Mr Berezovsky’s letter to Mr Putin, sent a month before his death, allegedly asking for forgiveness and begging to be allowed to return home, was used as a key piece of evidence to establish a motive for why the British intelligence services might want to bump him off (they mightn’t want him to return with a bunch of juicy state secrets that he might have picked up). And let’s just say that they found some MI5 patsy to pin the blame on. And let’s say that some of the evidence is held behind closed doors as it is apparently “too sensitive” to go public. And let’s just say that neither the patsy nor his lawyers are permitted to see this evidence. And let’s just suppose that the inquiry concludes that yes, he did it, “probably” with the knowledge of the head of MI5, and that it was “probably” done with the approval of David Cameron.
Would you be outraged? Yep you would, and so would I. We would say that this was typical of the Russian justice system, wouldn’t we? Well, we need to flip it over and wonder whether others might justifiably be looking at the British justice system and coming to the same conclusion after an inquiry that is essentially the same as the imaginary scenario I have set out.
The irony is that all those politicians and media who latched onto the results of this Inquiry-cum-Trial, and went from “probably” to “definitely”, will have done so because they somehow believe British justice to be impeccable. Unlike the Russian justice system, which is assumed to be in all essentials the same as the old Soviet system, ours couldn’t possibly be corrupt, could it?
Yet the very fact of how this inquiry has been held and how it’s legally flabby findings have been used suggests quite the opposite. In our rush to name names, despite the paucity of evidence, we have watered down “beyond reasonable doubt” based on hard evidence in a free and fair trial, to “probably”. And in doing so we have just moved much closer to the old Soviet justice system than we might care to think.