Could PM have said more?
Or would talking about Axel Rudakubana have made things worse?
In his statement yesterday after Axel Rudakubana pleaded guilty to the Southport murders and related charges, the prime minister claimed that law forbade him or anyone else from disclosing details sooner.
Sir Keir Starmer KC MP said:
If this trial had collapsed because I or anyone else had revealed crucial details while the police were investigating, while the case was being built, while we were awaiting a verdict, then the vile individual who committed these crimes would have walked away a free man.
Would? Or could?
As director of public prosecutions from 2008 to 2013, Starmer knows perfectly well what normally happens if a jury gets to hear prejudicial material. A retrial takes place before a new jury, perhaps after enough time has passed for the headlines to be forgotten and sometimes even in a different part of the country.
To be fair, shortly after Starmer started practising at the criminal bar in the early 1990s there were a few high profile collapsed cases in which defendants did indeed “walk away”.
Writing in 2001 about trials that had to be restarted before new juries because of prejudicial publicity, my former BBC colleague Jane Peel mentioned one where a retrial was ruled out.
It was the case of Michelle and Lisa Taylor, cleared of murder by the Court of Appeal in 1993 because the police had failed to disclose exculpatory evidence. As a result of press coverage, which a judge had described as “unremitting, extensive, sensational, inaccurate and misleading”, the appeal judges concluded that it would no longer be possible for a fair retrial to take place.
Even more pointedly, in 1990 the Court of Appeal cleared three defendants of conspiracy to murder the then Northern Ireland secretary Tom King. The so-called Winchester Three had elected not to give evidence.
A few days before the jury had retired to consider their verdicts, King had given a number of television interviews in which he supported moves to curb the right to silence in Northern Ireland, adding that terrorists had been trained not to answer questions. The Court of Appeal said that the trial of Martina Shanahan, Finbar Cullen and John McCann should have been stopped and a retrial ordered. In the end, there was no further prosecution.
Starmer clearly wanted to avoid prejudicing any jury that might have tried Rudakubana. Just two days ago, when a jury was about to be empanelled, the attorney general’s office told reporters:
You may be in risk of being in contempt of court if you publish material or comment online that is inaccurate, unfair, or involves discussion or commentary which could influence the jury’s deliberations. This includes anything that asserts or assumes, expressly or implicitly, the guilt of Axel Rudakubana. This is due to the risk of potentially jeopardising the criminal trial.
The Contempt of Court Act 1981 seeks to prevent any interference with the administration of justice and the right to a fair trial.
Contempt of court
The strict liability rule set out in the 1981 act allows findings of contempt to be made without the need to prove an intention to interfere with the course of justice in particular legal proceedings. But that rule “applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.
And there is a defence:
A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.
Criticism
Starmer’s argument was that disclosing certain “details” about Rudakubana after his arrest would have amounted to contempt. But the prime minister was criticised yesterday on the grounds that other attacks were immediately described by the police as terrorist incidents without jeopardising subsequent trials.
There was, of course, overwhelming evidence that Rudakubana was guilty of homicide and attempted homicide. He was either going to be sentenced to life imprisonment for murder — almost certainly with a whole-life order1 — or he was going to be detained indefinitely in a secure hospital for manslaughter by reason of diminished responsibility. Nothing Starmer might have said at the time of his arrest would have affected that.
But the charges Rudakubana subsequently faced under the Biological Weapons Act 1974 and the Terrorism Act 2000 — production of ricin and possession of an Al-Qaeda training manual — were harder to prove and might well have been affected by anything the prime minister said about them. His instincts as a criminal lawyer and former chief prosecutor would have counselled caution.
That was confirmed by the home secretary yesterday. Yvette Cooper told MPs:
The government have been constrained in what we could say up to this point about Rudakubana’s past to avoid prejudicing any jury trial, in line with all the normal rules of our British justice systems, because nothing is more important than securing justice. But now we can start to lay out that background.
She added:
The British way of justice means that information is presented to the court by the police and Crown Prosecution Service with restrictions on what can be said beforehand, so that the jury does not get partial or prejudicial information in advance and to ensure the trial is fair and justice is done.
Social media puts those long-established rules under strain, especially where partial and inaccurate information appears online, and the Law Commission is reviewing the contempt of court rules in that light.
But let me be clear that where the police, government and journalists are given clear advice from the CPS about contempt of court and about not publishing information in advance of a trial, if we did not respect that and a killer walked free, we would never be forgiven.
It’s true that ministers would not be forgiven if a killer was acquitted. The three defendants rightly cleared of conspiracy to murder the then Northern Ireland secretary did not, in the end, face retrials. But it seems unlikely that Rudakubana would have “walked free” if the police had said — and the prime minister had confirmed — that the case involved allegations of terrorism.
In that case, asked Conservative MPs yesterday, why were we not told at the outset that he was facing terrorism charges?
“On 29 October,” said the shadow home secretary Chris Philp, “Rudakubana was charged with possessing the ricin and the terror manual, and that was then made public. If that can be made public in October without risking prejudice of the murder trial, it follows that it could have been made public in August without prejudicing that same trial.”
Nick Timothy MP, a former joint chief of staff to Theresa May, made a similar point:
The prime minister’s denial in August that Rudakubana was being investigated for offences under the Terrorism Act 2006 did not protect the trial because we found out the facts anyway when Rudakubana was charged in October.
Comment
I think these objections miss the point. It was easy to decide that Rudakubana should be charged with murder. Much more thought would have been needed before charging him with the terrorism-related offences. There was no reason for the police to announce them sooner.
Ah, say critics, but a vacuum encourages speculation. Speaking on the Today programme in October, the independent reviewer of terrorism legislation Jonathan Hall KC had said:
The government has to be aware… that if there is an information gap… then there are other voices, particularly in social media, who will try and fill it…
If there is any information you can give, put it in the public domain and be really careful that you don’t fall into the trap of saying “we can only say zilch because there are criminal proceedings”.
Again, wise advice. But publishing selected information is not going to prevent speculation. If anything, that will encourage it.
The Crime Reporters’ Association, a group of journalists I have never been invited to join, even complained to the director of public prosecutions yesterday about the advice it had given to the police at the time of the Southport murders. Rebecca Camber, crime and security editor at the Daily Mail, wrote: “There has been a worrying pattern whereby forces wanting to provide information to the press have been instructed to stay silent.”
As reported in The Times, Stephen Parkinson told Camber in reply:
Public reporting of significant information before the conclusion of the trial, including about the actions of the Axel Rudakubana on the day and some elements of his past history, would have posed a serious risk to the integrity of the trial and risked undermining justice for the victims and their families.
Parkinson had been DPP for a few months at the time of the Southport killings on 29 July 2024. Starmer had been PM for a few weeks. As lawyers, they can be accused of being over-cautious. Better that than the alternative.
See now my response to a comment below.
As ever, a very good piece. I see other commentators are pointing out that the collapsing trial was only a possibility. Given the trauma that would be caused to the parents in needing to testify, it seems perfectly reasonable to me to be cautious and try to ensure the risk of a retrial (thus requiring testimony again) was minimal. While the evidence of homicide was overwhelming, as you know, that doesn't stop a trial. Had he continued to refuse to give pleas, the court would have had no option but to continue to enter not-guilty pleas and thus a trial would have been held.
You note the possibility of a whole-life order. My understanding is that this is not possible for someone under the age of 21. Indeed, the starting points are much lower where a person is under the age of 18 at the time of the attack (which I think was the case here). That does raise the question about whether the media will properly report any tariff given that it was Parliament, not the judiciary, who set the framework. Of course, if the judge decides that a hospital order is required, then we could get the furore that accompanied Valdo Calocane receiving the same sentence.
I confidently predict lots of bandwagons approaching with columnists and politicians of all parties looking to see how they can climb aboard...
I am not a lawyer, but I think I understand you correctly. It certainly sounds like this could be technically a correct decision.
However, I cannot prove this, but just from the mood in the country at the time my feeling is that this decision was not a cold calculated decision based on the risks of losing a criminal conviction. It was simply a kneejerk reaction to not answering to Nigel Farages' questions or those similar to him.
Although, I'm sure they could justify it - it looks like they were just being obstinate not to pander to the right. Possibly correct but once the atmosphere in the country became so febrile they should have taken the risk, as from what you say ultimately it was a very small risk.