High Court in Glasgow

We Have to be Reasonable About Conviction…

…or a response to @DPJHodges in more than 140 characters.

This week, Dan Hodges wrote this piece for the Telegraph. In it, he ‘argues’ that we should lower the standard of proof used in criminal trials from “beyond reasonable doubt” to “on the balance of probabilities”. I am not a qualified solicitor (yet), nor do I wish to be a Criminal Lawyer when I do (Civil Law is where it’s at) – but I do know this idea is not healthy.

Setting aside the fact that there is no solid legal argument in the piece as to why we should lower the threshold in response to low conviction rates, it seems that he has not considered the full reasoning of the proposal.
Every trial starts off on the basis that the accused didn’t do it. That is fundamental – everyone is innocent until proven guilty. Even if you are a convicted murderer and have been accused of murdering again, you are presumed not to have committed the second murder until it is shown you have.
In order to show that you have committed the murder the prosecutor has to prove, beyond all reasonable doubt, that you did. What’s important is that the doubt must be a reasonable one. An unreasonable doubt can and should not prevent a jury from convicting (e.g The accused told us he has a twin, what if we’ve got the wrong twin in the dock?). So what then is a “reasonable doubt”? I’m reminded of one of the funniest reports I’ve read about a criminal trial. It was Vicky Pryce’s trial about taking Chris Huhne’s speeding points and the jury in its utter incompetency asked “What is reasonable doubt.” The judge answered, quite clearly, that it is a doubt which is reasonable. It’s simple – if you believe, on the face of it, you’re not sure whether to accept something as “proven” you shouldn’t.
To go back to the murder example again, this means that (in Scotland), the prosecutor would have to show that:

  • A killed B.
  • A did so maliciously or with wicked recklessness.

and convince a jury of these two things so that they cannot reasonably doubt that they are true.

And there is a reason that we have that we have that threshold. It has become the accepted jurisprudence that it is better for 10 guilty men to go free than to imprison an innocent man. Obviously our justice system is not perfect, but we – generally – are successful in pursuing this ideal. If we lowered the burden of proof required to imprison somebody, it is inevitable that more innocent people are at risk of being (and so would be) convicted. And conviction, for crimes like rape (which Hodges used to attempt to justify the lowering of the burden) almost always lead to jail time. THAT is why it should be difficult to convict somebody.
I sent my friend (who is much smarter than I am) a link to Hodge’s piece. I was at school with him and he too did law (although at Edinburgh), but instead of doing the Diploma and becoming “a lawyer” he went to Oxford to do a Masters (and PhD) focussing on ‘the justice system’ as opposed to ‘the law’. This was his reaction, and I think it perfectly sums up the reason we should have a higher test than “he probably did it”:

I think the argument for the presumption of innocence needs to riff far more on the extremity of the decision to imprison someone. The phrase ‘deprivation of liberty’ is a hopeless understatement of the gravity of the decision. ‘Deprivation of freedom, autonomy and dignity’ might capture it better, but it would need to be less clunky.

And that is it. Deciding to jail someone is to remove most of the basic freedoms and rights we take for granted. When to get up, where to go, when to eat etc are all restricted and dictated in prison. If we are sending someone there, we had better make damn sure we’re getting it right. Or at least, as sure as we can be without breaking the system.

Shortly after he published his piece, Hodges was asked to try and explain his position by the brilliant @NearlyLegal asked him to explain the logic behind his position. And it was on twitter I realised why Hodges and legal-folk could not see eye-to-eye. Firstly, this happened:

and then, Hodges said this:

These showed that Dan Hodges was coming from a completely different place to those he was arguing against. He believes that it is better that all the guilty are convicted even if innocent people are convicted too. I, and the others tweeting him, are of the opinion that it is better that all innocent people go free, even if that means that some guilty people do not face justice. To me Hodge’s position is repugnant with basic legal principles. To him, mine is too committed to principles and not to action. But regardless, proof of guilt “beyond reasonable doubt” has been the general standard for a long time – but that doesn’t make it a relic from the past. There’s a reason it’s stood the test of time.


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