Why Britain is so reluctant to take on the powerful

More than a decade ago, the Crown Prosecution Service, then led by Sir Keir Starmer, found itself at the centre of a storm over its failure to prosecute Jimmy Savile, who used his fame to become one of the most prolific sexual predators Britain has ever known.

This summer, the CPS came under fire once again, with former ministers criticising the body for taking more than a month to announce that it had brought charges against the BBC presenter Huw Edwards for accessing indecent images of children.

Now, the prosecutor’s failure, also during Starmer’s time at its helm, to charge Mohamed Fayed with sexual assault, has highlighted what campaigners and lawyers see as a pattern of Britain’s authorities appearing intimidated at the idea of taking on the rich and famous. The decision was highlighted this week when it emerged that dozens of women have now accused the late Harrods owner of abuse.

Fayed was interviewed by the Metropolitan Police under caution in 2008 after a 15-year-old girl told detectives she had been sexually assaulted by the then owner of the exclusive London department store. The following year, the CPS announced that no charges would be brought because there was “no realistic prospect of conviction”.

The case has raised the spectre of Savile, the former BBC presenter, who the CPS similarly decided against prosecuting. The full extent of the allegations against both Savile and Fayed only came to light after the death of each man – in 2011 and last year respectively.

The decision not to prosecute either Savile or Fayed occurred when Starmer was director of public prosecutions at the CPS. However, the Prime Minister and Number 10, have said that neither case crossed his desk.

The CPS also faced criticism for not announcing the charges against Edwards. The disgraced BBC presenter was charged in June but the details only emerged in August, after the date of his first court appearance was published by Westminster magistrates. There is typically an expectation of disclosure when there is a significant public and media interest in a specific case.

Earlier this month, Edwards avoided jail when he was given a six-month suspended sentence at Westminster Magistrates’ Court after pleading guilty to three counts of making indecent images of children. Kemi Badenoch branded the decision an example of  “two-tier” justice and called for an urgent overhaul of sentencing rules. At the time, the CPS said: “Decisions on charging announcements are based on operational factors and no defendant receives preferential treatment.”

In 2016, there was an inquiry into why the Labour peer Lord Janner was never put on trial despite facing allegations of abusing children that dated back decades. The scandal was branded an “establishment cover-up” by victims’ groups – although one of Janner’s accusers was revealed to be Carl Beech, himself a paedophile, who was found guilty of perverting the course of justice and of fraud in 2019.

Janner, who died in December 2015, always maintained his innocence and was never convicted. His family continue to campaign for his name to be cleared.

But Richard Henriques, the retired judge who reviewed the case, severely criticised both the CPS and Leicestershire police for mishandling three investigations into Janner. He found that there was enough evidence to provide a realistic prospect of conviction in both 1991 and 2007.

Henriques concluded that Janner should have been arrested and interviewed at the latter date. The Independent Inquiry into Child Sexual Abuse (IICSA) later found that police and prosecutors “appeared reluctant to fully investigate” claims against Lord Janner despite “numerous serious allegations”.

“On multiple occasions police put too little emphasis on looking for supporting evidence and shut down investigations without pursuing all outstanding inquiries,” said Prof Alexis Jay, who chaired the IICSA.

“This inquiry has brought up themes we are now extremely familiar with, such as deference to powerful individuals, the barriers to reporting faced by children and the need for institutions to have clear policies and procedures setting out how to respond to allegations of child sexual abuse.”

Richard Scorer, the head of abuse law at Slater & Gordon, believes that the UK has a problem bringing powerful wrong-doers to justice compared with, for example, the US. He cites three main reasons for this.

The first is the UK’s notoriously strict libel laws, which he says has “a stifling effect” on victims coming forward in the first place. In the US, by contrast, those making allegations against figures such as Fayed and Savile would be afforded first amendment protections under the right to free speech.

Several media organisations reported on allegations of sexual abuse against Fayed in the past, including Vanity Fair in 1995, ITV in 1997 and Channel 4 in 2017. Meirion Jones, a former BBC journalist whose Newsnight investigation into Savile was pulled, says the high legal bills these outlets incurred likely put others off further investigation.

“The knowledge about what al Fayed was alleged to have done was out there in the world but the trap never sprung shut on him,” he says. “The legal bills in these cases can quickly add up to seven figures and that’s clearly a disincentive to go after those with deep pockets.”

The second reason, according to Scorer, is that the UK’s criminal justice is crumbling after years of underfunding. Scorer says it can now take between five and six years to bring sexual assault and rape cases to trial, which is “totally unacceptable”.

Sir Bob Neill, the former Conservative MP and chair of the Commons justice committee, agrees, but adds that the UK justice system has long had a poor record of dealing with allegations of sexual crimes of all kinds, a weakness that is further exacerbated when the perpetrator of those crimes is well-known.

“There’s long been a concern that victims haven’t come forward because they were worried they wouldn’t be believed and clearly that concern is amplified if the alleged perpetrator is famous or rich,” says Neill. “There has been a lot of work to address this problem but there’s clearly still some way to go.”

Scorer’s third point is that there is far more direct political accountability within the legal system in the US than in the UK. In the US, the prosecutor’s office has increasingly become a stepping stone to higher office. (Kamala Harris, for example, was previously the district attorney of San Francisco and the attorney general of California. Both these positions are elected.)

There are definitely downsides to this system. Research suggests that this has had significant negative consequences for US criminal law, including making justice outcomes more punitive for civilians (and driving mass incarcerations) and noticeably more lax for the police.

However, it has also ensured that the powerful are more likely to be held to account for criminal actions. Prosecutors know that there is no surer route to getting their own names in the headlines than putting a famous person behind bars.

Victims’ groups agree that the US justice system seems to be less cowed by the power of alleged perpetrators generally. The MeToo movement has resulted in a wave of high-profile cases and convictions for rape and sexual assault, including Harvey Weinstein, Jeffrey Epstein and Bill Cosby.

But whereas it makes career sense for prosecutors to charge powerful people in the US, the reverse tends to be true in the UK. “Here the calculus flips,” says Scorer. “If you go after someone famous, you’ll likely tie up huge amounts of resources and there’s a huge downside if the case fails.”

He points out there are very limited mechanisms for holding the CPS and the police to account when they choose not to prosecute. In 2018, the Metropolitan Police lost an appeal against two rape victims, who won compensation over its handling of the case of black cab rapist John Worboys. However, the victims had to make their claim under article three of the Human Rights Act – the right not to be subjected to torture or to inhuman or degrading treatment.

“The performance of the CPS isn’t going to improve until it gets more resources and until it faces greater political accountability,” says Scorer. “We know that the CPS can fast-track certain cases if it wants but such decisions are taken in a very bureaucratic way with little or no explanation.”

Jones argues that there might be a broader cultural problem in the UK, which is perhaps a hangover from the class system, in which people are “too willing to doff the cap” to those in power. He adds that that culture is changing but perhaps less quickly than many presume.

Laura Paisley, a barrister at Mountford Chambers, counters that a number of famous and powerful people have been prosecuted in the UK in recent years. They include Rolf Harris and the publicist Max Clifford.

Paisley points out that such cases take a long time to investigate and that the culture may only appear to be changing more slowly in the UK than in the US because the criminal justice system is under such strain.

However, women’s groups argue that there is also a power imbalance at play in many of these cases. “Perpetrators have long used their wealth, status and power to abuse women and girls with impunity,” says Andrea Simon, executive director of the End Violence Against Women Coalition.

“We live in an unequal social system that puts men in a position of power relative to women and girls. Sexual violence is a consequence of this, with women and girls comprising the vast majority of victims.

“This inequality is deeply embedded in our culture, institutions and legal systems, with wealthy perpetrators able to weaponise the law to silence victims and prevent reporting on their experiences through non-disclosure agreements and super-injunctions.”

A CPS spokesman says of Fayed: “We reviewed files of evidence presented by the police in 2009 and 2015.

“To bring a prosecution the CPS must be confident there is a realistic prospect of conviction – in each instance our prosecutors looked carefully at the evidence and concluded this wasn’t the case.”