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Restore the Criminal Standard of Proof

Comment 19th August 2010

Judges should return to their former practice of directing juries in criminal cases  that they can only convict the defendant if they are satisfied beyond a reasonable doubt that he is guilty.

Why does this matter?

 

There are two main directions available to the trial judge on the standard of proof. The one that came first is the one people are most familiar with from courtroom scenes in films. It is on the lines of:

"Only if you are satisfied beyond a reasonable doubt that the defendant is guilty can you convict him". 

The other one goes something like this: 

"Only if you are satisfied so that you are sure that the defendant is guilty can you convict him".

Most people will be surprised to learn that the second ("sure") direction is the one that is mostly used today. It was suggested by a top judge in around 1951 on the pretext that the language made it easier for the judge to explain the standard of proof.

I'm afraid I don't believe that was his reason at all. I think it is completely disingenuous, and it's clear to me that he was pro-prosecution and had hit upon an ingenious way of lowering the standard of proof, to the great disadvantage of the defendant.

It is a very wishy-washy direction, for it effectively invites jurors to convict even if they have reasonable doubts. "Sure" in common usage (and therefore as a juror would likely understand it) has many shades of meaning; it can even mean "not sure". How many times have we said, "I'm sure I locked the door before I left this morning"? Plainly that means I'm not at all sure whether I locked the door.

It seems plain to me that this direction implies a lower standard of proof, with the very real risk that miscarriages of justice are more likely, because jurors may be only slightly sure and may have reasonable doubts, yet will still convict. Thus the defendant has been robbed of the benefit of reasonable doubts to which he is entitled.

It is notable that the House of Lords have long preferred the "beyond reasonable doubt" direction. 

I realise that this isn't an answer to the Government's question about unnecessary laws. However, since most people have chosen not to answer it in that vein, but instead to take the rare opportunity of telling the Government what is wrong with our system of laws and how it directly affects them, I have no compunction  in following suit. On one view one might say, in any case, that the original question is somewhat disingenuous, for it could be seen to be avoiding the real issues. 

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