Are you sure, Dan?

The Daily Telegraph carried a piece by Dan Hodges today, written in the wake of the Shrien Dewani acquittal. He asks the question: why are legal systems weighted in favour of those standing trial? He was struck by the judge’s phrase in her ruling ‘beyond reasonable doubt’ and writes that it is time to ditch the principle. The reason he gives is that if the standard of proof in criminal trials was lowered to ‘on the balance of probabilities’ more guilty people would be convicted and that is a good thing for society.

He has not much recent experience of our criminal courts, one suspects. If he had he would know that the standard ‘beyond reasonable doubt’ has not been used since at least 2002. The test is now ‘are you sure’? The principle he wants ditched has been ditched already. However his point remains the same because ‘are you sure?’ is unquestionably a higher standard than the one he prefers.

His proposed standard ‘on balance, is it probable that this person is guilty’ would undoubtedly convict more people. The problem is that it would convict more innocent people. There is a triple injustice when an innocent person is convicted. (1) They are punished for doing nothing. (2) The guilty person has got away with it and (3) The victim is given false comfort: they don’t in actual fact receive justice either.

Further, there are other consequences. The CPS evidential test when deciding whether to charge someone (‘is this case likely to succeed at trial?’) would lead to many more people being charged. Many more innocent people would be caught in this net. If the system over time fell into disrepute, juries may acquit more than they do now – more guilty people may then be acquitted.

The classic statement on the imbalance Dan Hodges dislikes (which he denounces as too liberal) comes from a Tory politician. William Blackstone’s Commentaries on the Laws of England in 1766: “it is better that ten guilty persons escape than one innocent suffer” (A principle that can be traced back to Sir John Fortescue’s De Laudibus Legum Angliae from 1470). The fifteenth and eighteenth centuries were not known for their overly liberal attitudes to justice.

Pol Pot in his little red book reversed Blackstone’s dictum and said it was better that ten innocent suffer than one guilty man escapes. He was not a noted jurist. Full marks for being provocative Dan, but be careful what you wish for.


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