• The First Principle of a Just Legal System

    May 13, 2019

    A letter from an MP responding to complaints about our justice system (actually, it was more than one MP as detailed in this post – link), brushed aside such complaints, asserting that we have one of the best justice systems, established over the past 1000 years.

    However, it is my contention that it is some of the basic, admirable fundamental principles of that system which have been betrayed in recent years.

    In this post, I would like to highlight ONE of those basic principles which I believe has been let down but should be front and foremost of all considerations in our criminal justice system, namely: The Protection of the innocent

    This principle can be linked to the ethical principle usually quoted as:

    “First, do no harm” 

    In other words, before you intervene with an action, even one which may be of benefit, make sure that it does not do harm. If a criminal justice system convicts an innocent person, I would suggest it is doing harm.

    The protection of innocent people from wrongful conviction is the wider principle behind a number of widely-accepted human rights such as

    • The Presumption of Innocence
    • Right to a Fair Trial
    • Right to legal representation
    • The burden of proof being on the prosecution to prove guilt
    • …and various others

    The importance of this principle is the basis of Sir William Blackstone’s famous comment:

    “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

    Sir William Blackstone (1723 – 1780)
    Sir William Blackstone (18th C English jurist, judge and Tory politician) in his Commentaries on the Laws of England (1765-1769) set forth themes which were extremely important in England and also had an important influence on the legal system in America and elsewhere.

     This statement was not intended to be quantitative. He did not mean that it would be different if there were eleven instead of ten. It was a statement of principle – that the protection of the innocent from wrongful conviction is sacrosanct and far more important than punishment of the guilty.

    There has been a marked move in recent times towards so-called ‘victim-centric justice’. We hear of “victims getting the justice they deserve” meaning punishment of the people who allegedly harmed them in some way. The danger of this approach is that, in the rush to support alleged victims, we can weaken the provisions to protect the innocent.

    Why protection of the innocent comes before justice for the victim

    Thought experiment

    Imagine two, equally close loved ones. One has been the victim of the serious crime (A) and the other is accused of a similar crime (B) of which they are entirely innocent.

    The alleged perpetrator of crime A and the loved one accused of crime B have both been tried and are awaiting the jury’s decision.

    You can choose the outcomes but both must be the same – 

    1. both go free or 
    2. both are convicted.
      Which do you choose?

    Most sensible people would choose a) Why?

    Being the victim of a crime but then gaining some satisfaction at seeing the perpetrator brought to justice is still a net negative experience, because seeing justice done does not take away the effect of the crime – it is only compensation for having suffered and may, in some cases, afford some sort of ‘closure’.

    However, when people speak of ‘getting justice’ what they usually mean is getting some kind of retribution in which victims want to see the perpetrator suffer. But just as seeing justice done does not fully compensate for the crime, seeing a perpetrator avoid the consequences of his crime is not as bad as the suffering caused by the original crime.

    If being a victim of a crime can be viewed as “primary suffering” and not seeing justice done, “secondary suffering”, then primary is far worse than secondary.

    In the example, however hard it might be for the loved one who had been a victim to see the perpetrator of their crime go free, most people could not choose to see the life of their other loved one to be completely ruined by a wrongful conviction, because that is the equivalent of the primary suffering of being a victim of a dreadful crime.

    In all dealings within the justice system this principle should always be remembered and adhered to at all stages.

    Police should be careful to investigate alleged crimes with no agenda other than finding the true criminal, giving equal weight to evidence which does not fit a particular suspect and not just build a case against them and give to the CPS all evidence which should be disclosed to the defence.

    The CPS should be true to their criteria, assess police evidence with independent minds, and also disclose ALL relevant information to the defence. Even going to trial can wreck a person’s life, career and reputation – they should not “let the court decide” if the evidence does not justify it.

    Just as importantly, the principle of protecting the innocent should not end after conviction. The Appeal system should continue to uphold it.

    ALL evidence, including that presented at trial should be taken into account and the burden of proof should not switch to the convicted person to prove their innocence. If there is reason to believe that a conviction is unsafe, for whatever reason, including a wrong decision by the jury who convicted on insufficient evidence, it should be quashed.