Andy Burnham (pictured above), once a minister in Gordon Brown’s cabinet, now the mayor of Greater Manchester and perhaps a future leader of the Labour party, committed himself last week to a ‘root-and-branch reform of English justice’. His thesis, published in the Guardian, was wellmeaning but ill-informed. 

Joshua rozenberg

Joshua Rozenberg

It was based on the misconception, increasingly widely held, that the criminal justice system is based on some sort of contest between offenders and victims. This thesis holds that people who have been harmed in some way are ‘denied justice’ unless those considered responsible can be punished, preferably by imprisonment.

Burnham’s starting point was the Hillsborough football disaster in 1989. Brought up near Liverpool, he had a friend at the match who survived the tragedy. Burnham’s concern was that the legal system ‘has comprehensively failed to provide any real accountability for 96 unlawful deaths and a cover-up’. There have, of course, been inquiries – but nobody has been convicted of a serious offence arising from what happened.

Now is not the time to explain why individual prosecutions have resulted in acquittals. My point is a broader one: failings by individuals in a position of responsibility do not necessarily amount to criminal offences. Those who insist that someone – anyone – must be punished are seeking vengeance, not justice.

It is in the nature of disasters that many of those involved have fallen short of their responsibilities. Any of those individuals could have mitigated the risk and helped to prevent the tragedy. But that does not mean they caused it.

Take the Aberfan disaster of 1966, in which 116 children and 28 adults were killed when a colliery spoil tip collapsed. A judicial inquiry found ignorance and ineptitude on the part of those responsible for the tip – but neither the National Coal Board nor any of its staff was prosecuted.

And the Grenfell Tower fire? Writing on these pages almost four years ago, I said it seemed ‘highly unlikely that any individual or entity will ever be convicted of gross negligence manslaughter’. Nothing I have heard since then has made me change my mind.

The most appropriate response to tragedies such as Hillsborough, Aberfan and Grenfell is an urgent and rigorous inquest or inquiry, headed by a senior or recently retired judge with statutory powers. Sometimes, as in the case of Hillsborough or the Bloody Sunday shootings in Northern Ireland, a second inquiry is needed to make up for the inadequacies of the first. In other cases, a new inquest may be ordered.

In practice, though, inquests and inquiries may be delayed while the police investigate possible criminal offences. Offering immunity from prosecution – a decision that would require political cover at the highest level – might enable the inquest or inquiry to get on with the job of finding out what went wrong and make recommendations to stop it happening again.

Burnham is on stronger ground when he says bereaved families should get proper legal representation at inquests. In the government’s view, legal aid is not normally needed because the proceedings are inquisitorial in nature: the coroner asks all the questions. But the Commons justice committee recommended last month that non-means tested legal aid should be made available for bereaved families whenever public authorities are legally represented at public expense. If organisations such as the emergency services, the prison service, local authorities and other public bodies are separately represented, the committee found, then an inquest inevitably becomes adversarial rather than inquisitorial. MPs called on the Ministry of Justice to lift the exceptional case requirements in these cases and end the legal aid means test by the end of September.

Burnham then makes some observations about criminal prosecutions. First, he argues, trials that follow inquests should be based on the factual conclusions of those inquests. That cannot possibly be right: defendants must be allowed to defend themselves.

Next, Burnham expressed surprise that defendants in the recent Hillsborough-related trial were not seated in the dock. The temporary Nightingale courts are not fitted with docks because they are used for bailed defendants who are unlikely to abscond. In Burnham’s view, there should be one rule for everyone. But there is already: a dock may be customary and convenient but it is not a legal requirement. An inquiry by the lawyers’ group Justice concluded in 2015 that docks were no longer necessary.

Finally, Burnham argues that bereaved families should be parties to criminal trials – or, as he puts it, they should have independent legal representation and the right to appeal if a judge rules that there is no case to answer.

Giving relatives a direct role in the criminal justice system would be an unwelcome change. In most legal systems, criminal prosecutions are brought by the state on behalf of the public as a whole. If we lose that, we shall all be denied justice.