SUNDAY REFLECTION

When Justice Can Be Engineered

Editorial Reflection

A published playbook now exists for reputational destruction.
The question is not whether we like it.
The question is whether our system is vulnerable to it.

Anyone who has spent time in courtrooms learns a difficult lesson sooner or later: the most dangerous weapon a man can carry into a fight is not a gun, not a lie, not even money. It is a story told loudly enough, and early enough, that by the time anyone thinks to ask whether it is true, the damage has already been done and the man it was told about is already ruined.

A book exists, published, circulated, defended under the banner of free speech, which sets out, in plain and patient language, how to destroy a person using nothing more than an accusation, an audience, and a telephone. It does not trouble itself with evidence. Its author says as much. Utility is the standard. The law is an obstacle to be routed around. The target is a reputation, and reputations, as every reader of this will know, are fragile things that do not reassemble once they have been shattered.

Now. I am not here to say the author is a villain, or that his readers are conspirators. That is not the point I am making. The point I am making is older than this book and uglier than its author: the point is that reputational damage before proof is a real phenomenon in modern public life, and that legal systems have struggled to keep pace with the speed and scale at which allegations now circulate.

Consider what happens the moment a man is charged with a sexual offence in this country. His name is given to the press. His photograph follows. His employer is informed, or discovers it by other means. His neighbours read it over breakfast. His children encounter it on their phones before school. All of this happens before a single witness has been sworn, before a single line of evidence has been tested, before any court of law has heard one word spoken in his defence. The complainer, by contrast, and I do not say this as a criticism of that protection, for it exists for reasons that are real and serious, is shielded by statute from the same exposure. One name enters the record. One name enters the world.

I am not arguing that complainers deserve less protection. I am arguing that accused persons deserve more, and that the current asymmetry, left unreformed, is not a neutral arrangement but an active one, active in the sense that it produces consequences as certain as any sentence a judge might hand down, only without the inconvenience of proof.

The presumption of innocence is not a sentiment. It is not a courtesy extended to defendants by lawyers who have grown too fond of them. It is a hard-won principle built on the recognition that human beings are capable of terrible mistakes, that witnesses can be mistaken, that accusers can be dishonest, that memory deceives, and that the power of the state, and now the power of the crowd, must be constrained by something more demanding than the feeling that this particular man probably did it. The feeling has been wrong before. It has hanged the innocent. It has imprisoned the blameless. History does not run short of examples.

And yet we have built, in the age of the internet and the social media platforms, a system that punishes on the basis of allegation alone and offers no credible mechanism for repair. When a prosecution collapses, as many do, for reasons that have nothing to do with the accused man's guilt or innocence, there is no equivalent headline. There is no algorithm that restores what was taken. The search engine does not distinguish between the charged and the convicted. A man who was accused on a Tuesday and acquitted on a Wednesday carries the Tuesday forever.

Some will say: this is the price of living in a free society. Some will say: the alternative is silence, and silence protects the guilty. These are not foolish arguments. I have heard them made by serious people, and I take them seriously. But I do not find them sufficient. Because a society that accepts irreversible punishment without proof has not, in any meaningful sense, abolished punishment without trial. It has simply moved the trial outside the courtroom, stripped the defendant of his right to speak, and handed the verdict to whoever shouts first.

The remedy is not complicated. If anonymity before verdict is considered just for one party in these proceedings, there is a case, a serious and principled case, for extending it to the other. And where that extension is rejected on grounds of public interest, then something must be offered in its place: a right to meaningful correction, a mechanism for reputational repair, a headline on a Thursday that carries the same weight as the one on a Monday.

Scotland is a small country with a proud legal tradition, and it is capable of thinking carefully about this. But careful thinking requires that we first admit what is happening. Accusation, in the age of digital amplification, can inflict reputational damage long before a court has tested the evidence.

The book mentioned earlier in this piece is a polemical and widely disputed text. It is not an authoritative account of how allegations function in law or society. Its relevance here lies only in the fact that it reflects a wider anxiety about reputational harm before verdict — a concern that has long existed in debates about pre-trial publicity, anonymity protections, and the practical meaning of the presumption of innocence.

Justice that permits irreversible harm before proof has been established is not justice in any sense the word was ever meant to carry. It is power. And power, as this country has known often enough in other contexts, requires accountability, or it becomes, in time, a law unto itself.

This article concerns the structural resilience of Scots law in the age of digital amplification. The author does not argue that accusation is always false, or that complainers are always wrong. The author argues that a legal system worthy of the name must be built to withstand misuse, not because misuse is common, but because it is possible, and because the consequences when it occurs are presently irreversible.