Tag Archives: Guilty

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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When is Assault not Assault…

…or why Neil Lennon and a Mr. Wilson from Edinburgh were major players in my personal legal journey.


I was amused last week when I read an article about New Hampshire’s State Legislature. I like New Hampshire (NH), and I’m fully prepared to admit that this is 100% due to it being President Bartlett’s home state. But over the last few years, NH examined and looked at what it considers the role of the jury in the state’s criminal trials…and being completely honest – I’m not sure I like it.

In 2012, NH’s Statehouse passed 519:23-a which allowed the sitting judge to permit defence counsel to remind the jury of their ability (and right) to “nullify the law”. There are far better explanations of what ‘Jury Nullification’ means than I could ever provide here, but put simply, it is the ability for a jury to say “Yeah, he’s technically guilty, but we don’t care.” Now it wants to change the law and require judges to inform the jury about its right to nullify the law in any given case. In the American context, where “We the People” is the basis of the law, the idea that the citizenry can disapply a law it feels is unjust seems acceptable and consistent – but is it necessarily the best idea to let juries know?
The American Jury process as it is at the moment is something I can’t quite rationalise. I find the US understanding of voir dire rather quaint and amusing, that lawyers can participate in choosing the jury. It’s something I can’t help but feel leaves (and has left) the whole system open to abuse. So, the idea that juries could go “We know he did it, but he seems alright”, seems the kind of thing that could only happen in America…right?

Scotland’s criminal justice system is infamous the world over for having 3 possible verdicts; Guilty, Not Guilty and Not Proven. But, it’s the second of the three, not the last, that can most accurately described as the “bastard verdict”. The role of the jury is to decide whether the crown has established the facts it intends to, i.e has the case against the accused been proven beyond a reasonable doubt? The jury, therefore, had to decide whether the case was ‘Proven’ or ‘Not Proven’ and it was only in the late 1700’s the idea of the jury deciding guilt came into the equation at all.
In 1782, a man was accused of murdering the Earl of Strathmore, and the facts were damning. Both men had been drinking and, to use the euphemism, one thing led to another which led to another which led to the Earl of Strathmore having a sword driven through his stomach…as happens. The man was charged with murder, but the jury has some sympathy with him. He had just buried a family member, the Earl had not been behaving appropriately all day, and just before the incident, had shoved the man into a ditch who was now covered in mud. So while there was no doubt that the man had killed the Earl, the jury didn’t think he had the guilt needed to fit the crime – he was “not guilty”. They knew he was technically guilty of murder…but they decided not to punish him. They nullified the law.
Since then, ‘not guilty’ replaced ‘not proven’ as the go-to innocence verdict , with ‘guilty’ wiping out ‘proven’ completely. So, a little act of ancient jury nullification has completely shaped the modern criminal justice system in Scotland. And yet, I question whether Americans should be told of this same ancient power. Why? Blame football.

In May 2011, Celtic played Hearts away in the SPL. The final score was 0-3, but the match was interesting in other ways. During the course of the game, a fan (Mr. Wilson)  jumped out of the stands and ran towards then-manager Neil Lennon and jumped on him. Essentially he committed assault. Live. During a televised football match. It was even caught on video…or was it? At his trial in Edinburgh Sheriff Court, the jury found the charge of “assault aggravated by religious prejudice” to be ‘not proven’.  The jury were aware of the fact they could delete the “aggravated by religious prejudice” part if that’s what was holding them back (they deleted it from his ‘Breach of the Peace’ charge of which they found him guilty), and considering Wilson had previously stated he would admit a clean ‘assault’ charge, this would have been sensible. But they decided not to – they let him off with it…or they didn’t, because they decided that he didn’t do it. The jury, essentially, nullified the ‘right’ verdict (he typed cautiously).
You can argue why the jury did what it did [At the time there was a blog post by someone who said it was done to “punish the crown”. if I can find it I will link it here.], but the fact remains that they did it. The evidence all pointed one way, but they veered the other, as was and is their right.

So what would the effect be if juries didn’t just have this right, but were made aware of it before every single criminal trial? The piece which initially piqued my interest states that where mock-trials have been held to test what may happen, juries told of their right to nullify tend to do so more readily and easily than those not told – and usually for more ‘socially acceptable’ accused/defendants. Given the tendency of the public to instantly vilify people accused of certain crimes (such as Chris Jeffries), while refusing to believe that certain others could ever commit one, it could be argued that establishing jury nullification as a central part of a criminal justice system might present a challenge to its fairness and equality.
I have an odd relationship with juries, despite having never sat on one (and I do really want to before I am permanently barred when I become a trainee next year (hopefully)). It seems completely sensible: you should be judged by people who are like you, not some judge who is (let’s face it) probably some old, white guy. But, like most things in law, its when you get down to exploring the details of the plans that the seemingly great ideas pose a range of issues you’d never have thought of. If the jury must be independent of “the system” then protecting that independence means that sometimes you have to accept they will make the ‘wrong’ (but never technically incorrect) choice…and I don’t know how I feel about that. I think compulsory notice of jury nullification chimes well with the independence idea, but I can’t help but wonder whether is positive for the criminal justice system as a whole. Just now, I think not.