In the wake of the dismissal of the case against Shrien Dewani in South Africa, Dan Hodges has written a piece on the Telegraph website questioning the criminal standard of proof. I will write this blog post from a Scottish perspective, but the general points will apply equally to most ‘western’ legal systems.
There are two burdens of proof recognised before the courts: the criminal standard, which is “beyond reasonable doubt” and the civil standard, “on the balance of probabilities”. What we are concerned here with is the criminal standard of proof, and particularly whether it weighs the system too heavily in favour of the accused.
Before going further, it might be helpful to set out what beyond reasonable doubt means. In his comment piece, Mr Hodges, asserts that in order for the prosecution to secure a conviction against an accused they “must prove beyond question the guilt of the accused.” This is not the case, and overstates the standard of proof. The criminal standard of proof does not require there to be no doubt at all, only that there is an absence of reasonable doubt. What this means is that the accused is entitled to the benefit of any doubt which is based upon reason and commonsense following a careful and impartial consideration of the evidence (and the lack thereof) presented to the court. The doubt, as Lord Justice-Clerk Cooper put it in Irving v Minister of Pensions, should be something more than “a strained or fanciful acceptance of remote possibilities”; Lord Justice-Clerk Thomson said in McKenzie v HM Advocate that it is something “more than a merely speculative or academic doubt”. The finder of fact (the jury or the sheriff/Justice of the Peace) doesn’t have to be convinced beyond doubt that the accused perpetrated the crime alleged, only to the point where he has no reasonable doubt.
There are a variety of reasons as to why there is such a high standard of proof in criminal cases. One of those reasons is the consequence of a guilty verdict in a criminal trial. As Jones and Christie put it in Criminal Law (4th Edition), “conviction certainly entails more than a mere finding that, e.g. “A killed B”. This in itself is a legally neutral statement…The Prime function of the criminal law is that of articulating the circumstances under which it is justifiable to hold a person punishable for his conduct.” (para 1-13). In other words, with the criminal law we are going beyond a situation where we are simply ascribing liability to concluding that a person’s conduct renders them liable for punishment. That punishment can be severe, it could result in a person being deprived of their liberty for a lengthy period of time. A finding of liability in a civil case does not generally result in the liable party being punished; there may be a requirement to compensate the party that they have wronged to try and place them back into the position they were in before the wrong occurred (or to place them in the position they would have been in had the wrong not occurred), but that is manifestly different from punishment. The stakes are much higher and as such it has been the position that the standard of proof must also be higher as a consequence.
It seems unjust to punish someone, in the severe ways open to the criminal justice system, on the basis that it is merely more likely than not that they committed the crime alleged. A system whereby an accused person could be convicted merely on the balance of probabilities would inevitably result in the entire criminal justice system being brought into serious disrepute as individuals would routinely be convicted where there are sensible and logical alternatives to their guilt based on the evidence which was heard in court.
It has long been the case that the justice system has preferred to see guilty men walk free than an innocent man be unjustly punished. This is not some ‘liberal, leftard, hand-wringly nonsense’; it is a centuries old principle and can be found in times where liberal principles were about as far away from the justice system as was possible. We’re going back to the times of gruesome public executions for the most minor of crimes, to where transportation was still a sanction open to judges and to where prison conditions were probably more horrible than even the most right-wing member of society would care to suggest today. Moreover, is it’s a principal which is a recognised international standard and features in what most people would consider to be “decent” legal systems. This principle is another reason for the high standard of proof in criminal trials and is linked closely to the idea that a finding of guilt in a criminal trial opens up legitimate punishment upon the offender.
We’re probably all familiar with the concept of an accused person being innocent until proved otherwise (even if, as a society, we don’t always hold to that with our quick condemnations upon those suspected or accused of crimes). The burden is placed squarely upon the State for a number of reasons, not least an equality issue. The State is vastly better resourced than an individual and it can call upon those resources when trying to prove that someone “did it”. The State has professional investigators in the form of the police, and teams of specialist lawyers to prosecute the case in court in the form of the public prosecution service. While those services, in the UK at least, are suffering from a considerable cut to their funding, those resources continue to vastly outstrip the resources of the accused who has only his (small) defence team to counter the might of the State. Lowering the Standard of proof would inevitably lead to the accused having to prove things that he does not currently have to prove. Of course, it is presently the case that an innocent accused facing an overwhelming case against them would be sensible to offer evidence as to why the State is wrong; however, in a system where the standard of proof was merely whether it was more likely than not that the accused had committed the crime it would almost always be the case that the accused would have to be disproving the States case (or, to put it another way, prove his own innocence). It would eat away at the presumption of innocence and would result in a great inequality between the State and the accused.
Does the criminal standard of proof weight the system in favour of the accused? I suggest no. What it does, I suggest, is merely rebalance a system that without it would unfairly favour the State with its huge and specialist resources over the extremely limited resources of the accused.