Our Broken System
In England and Wales, the legal system has, without a shadow of doubt, been practically abandoned in terms of funding for some considerable time. If you haven’t already read The Secret Barrister – Stories of the Law and How It’s Broken, I would highly recommend it. (Click title to see on Amazon. This is an affiliate link which helps the blog).
It is not merely small hairline cracks which are showing; there are huge fissures which have created an inestimable number of miscarriages of justice – on both sides, with the guilty escaping punishment and with unjustified prosecutions and wrongful convictions which have wrecked the lives of innocent people.
The basis of those claims, according to one MP’s response in a letter, is that we have a long standing system which has been developed for over 1000 years, but it is my contention that it is precisely the admirable fundamental principles of that system which have been betrayed in recent years.
So I would like to revisit ONE of those basic principles which I believe should be held up and for which we should aim at all times: THE PROTECTION OF THE INNOCENT
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 a strong impact on the legal system in America.
My regard for the the importance of the quote for which he is largely known today (see below) has led me to borrow his name for the authorship of this and other posts:
Why is this so important?
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. Part of the reason for this, as I see it, is because of the reasons for the punishment of crime:
- To create a disincentive for the crime
- Protection of the public from further crimes until the person can be rehabilitated
- Rehabilitation of the criminal
- Punishment for breaking the law
- Sense of justice for the possible victim(s) of the crime
Notes on the points above
- Disincentive – As the possibility of the punishment for lawbreakers still exists, such a disincentive (if it works at all) should still apply even when an individual in a particular case is found not guilty.
- Public protection – This only applies when it is considered likely that the person may otherwise continue the criminal activity. In cases where it is not likely, or even possible for such activity to continue, this point does not hold.
- Punishment – This is arguably the main reason and, in addition to a) amounts to sense of ‘revenge’ for wrongdoing on behalf of the state.
- Justice for victims – This is a factor which may be important to the victim but still amounts to sense of ‘revenge’ on behalf of the individual.
The problem with 4. is that the main harm caused to the victim was the original crime which cannot (entirely) be taken away. Where the crime is more serious, such as some form of assault e.g. rape, the memory of the trauma remains and, worse still, in the case of a murder, nothing can bring back the lost person.
So while a sense of justice may feel very important to the victim or their loved ones (and the more serious the crime, the more they feel it), the fact remains that it the original crime where the real harm has been done. Although the perpetrator escaping justice may therefore seem to add further trauma to the victim or their family (which is admittedly genuine), it is still less severe in its effect in comparison with the original cause.
On the other hand, if an innocent person is convicted, that is a whole new injustice. Th e wrongful conviction is, in effect, the crime. It is not a corollary to an existing crime. A NEW innocent victim has been created – another life potentially ruined and another set of family and friends who suffer. And worse, still, it is at the hands of the society that is supposed to protect them.
With that in mind, let us return to the most fundamental principles of justice (as I see them).
1. A person shall be deemed innocent until, and unless, PROVEN guilty in a court of law [and also if a conviction is overturned by a Court of Appeal.]
This rule is undoubtedly the basis of most just legal systems in the developed world and the implications of it include the following points:
- A full and fair investigation
- A suspect should be treated as innocent by the Police in terms of conducting a full and fair investigation – which includes following leads which may support the suspect as well as those which may incriminate them. Not doing so is unjust and leads to accusations of bias and lack of trust in the Police
- While the Police and the Crown Prosecution Service (CPS) may come under pressure to make arrests and charge people, it is not important to charge SOMEONE with a crime – it is of supreme importance to charge the RIGHT person
- In cases where there is a complainant making an accusation, the complainant should be taken seriously and treated with the respect that someone who MAY be a victim deserves
- Similarly, the accused person should also be treated with the respect that a person who may be innocent deserves.
- Neither side should be believed nor disbelieved until a full and fair investigation has taken place. Automatically believing one side prior to investigation necessarily means disbelieving the other which would impede fair investigation. All leads should be followed on both sides to find the truth.
- A full and fair investigation
- The Burden of Proof
- It is incumbent on the prosecution to ‘prove’ guilt ‘beyond reasonable doubt’. (This phrase is no longer used in court in England but, though the wording may have changed, the principle remains).
- Research has shown that humans – even so-called ‘experts’ – are very poor at being able to tell when someone is lying.
[There have been numerous TV panel shows based on this fact: e.g. each member of one team gives an account of something but only one is telling the truth and the other team has to guess who. Even when they KNOW that only one is telling the truth, the success rate of guessing who is rarely better than chance and often worse.] We simply cannot be trusted to make reliable judgements on the basis of forming an opinion on who is telling the truth, without substantial supporting evidence.
- Benefit of the Doubt
Given the burden of proof, it is inevitable that some guilty people will escape punishment. However, there is no way of knowing who has escaped punishment and who is genuinely innocent.
In fairness to the genuinely innocent, therefore, ALL who are found not guilty, or whose convictions have been overturned by a Court of Appeal, MUST be given the benefit of the doubt and it must be assumed that they are indeed 100% innocent and treated as such by all of society.
2. A suspect is entitled to a fair trial
This point is embedded in the European Convention on human rights, which might be considered a fair starting point.
It means that there should be no bias or prejudice which would make conviction more likely and measures taken so that processes or procedures which may introduce such prejudice are avoided as far as possible.
Therefore the following are points I believe should be included.
- The prosecution and trial of a suspect should be within a reasonable time frame (this point is also mentioned in the European Convention)
- Press restrictions – in order to prevent trial by the media and jury members being prejudiced by information presented prior to the trial.
- reintroduction of jury assessment prior to trial – in order to avoid potential prejudice
- The jury members should give written reasons for their verdict – in order to ensure that they have come to a decision based on evidence and logic and not prejudice or hunch.
3. There must be a fair and open system of Appeal which applies the SAME standards as those of the courtroom.
The Appeal system should seeks to find such errors and be fully prepared to overturn them when a conviction is deemed unsafe.
In any human system, there will be mistakes and innocent people wrongly convicted. The principles outlined above which are in place to protect the innocent should therefore be maintained throughout the Appeal system
- In spite of having seen and heard evidence presented in court, Juries are not, and should not be viewed as being, incapable of making a wrong decision. In fact it is inevitable and and a Court of Appeal must be set up to deal with that expectation.
- Therefore, there is no valid reason why evidence presented to the Court of Appeal has to be fresh evidence which has not previously been available.
- The important point is surely to find the truth and to protect the innocent so ANY and ALL evidence which may help demonstrate that there has been a miscarriage of justice and that an innocent person may have been convicted must be permissible.
- Refusing such evidence is a dereliction of duty to protect the innocent.
Only when these factors have been achieved can we claim to have a just legal system.