Defending Innocent until proven guilty – even when it seems to suck

This week the the Metro reported that a ‘legal loophole’ had enabled a woman ‘suspected of inflicting “appalling and horrific” injuries on a baby boy’ to walk free after being acquitted of the most serious charges against her. Halfway through the article, the nature of the ‘legal loophole’ to which the writer is referring becomes clear. Namely the baby was being cared for by two people, and it was impossible to be sure which one caused the horrific injuries in question. As such neither could be convicted on the most serious charges in the case.

In other words we have no way of knowing who exactly did what. The ‘legal loophole’ which allowed the defendant to ‘get off’ is a little longstanding principle known as innocent until proven guilty. If this is a loophole, it is absolutely not one that should be closed up. However this case, the kind of injuries inflicted upon the baby, and the way it was reported are indicative of the kind pressure which is periodically brought to bear against our most important legal principle. Put simply, the burden of proof can sometimes seem to suck. High acquittal rates for such crimes as rape can be very difficult to swallow. People who are very probably guilty can walk away. People can suffer traumas which the criminal justice system can’t put right.

Against such a background, politicians, the public and pressure become tempted – knowingly or not – to support measures that erode the principle of innocent until proven otherwise. Few people are aware that the mother of Baby P was convicted under a charge introduced in the 2004 Domestic Violence, Crime and Victims Act : that of ‘causing or allowing the death of a child’. This law sought to close a longstanding ‘loophole’. Namely, that if a child dies of deliberately inflicted injuries while living with more than one adult, it is often impossible to demonstrate who inflicted them. Now both can be charged with ‘causing or allowing’ the death.

At first glance such an innovation seems entirely reasonable, perhaps even necessary. Yet it is also incredibly problematic. Causing a death is clearly very different – morally and legally – from allowing it to take place. If we can prove that a carer allowed the death of a child but – for the reasons described above – cannot prove beyound doubt that they caused it, then we should sentence them for the former and not the latter. The idea of sentencing people for having done EITHER X or Y, simply because Y is more difficult to prove, is unacceptable. People should be sentenced for that which they can be proven to have done, and nothing more. The reality is that certain crimes are, by their nature, extremely difficult to prove. Legal innovations that seek to get around these permanent and necessary difficulties takes us down the road to hell.

A similar situation characterises the question of prosecuting rape. We constantly hear that the rates of acquittal are extremely high, and the proportion of reported rapes that result in convictions is extremely low. Again it is a situation that any reasonable person would find morally unacceptable. Yet it is because of this that we need to show caution.

Although I have no particular expertise, I would imagine that the crime of rape is – by its nature – extremely difficult to prove. It is not simply a matter of demonstrating that a certain physical act took place – as for example it is for standard assault. Rather it is a very often a question of demonstrating what was said, or not said, prior to the act. As such, low conviction rates seem almost an unfortunate inevitability. Yet this once again, such a horrible situation tempts us to tinker – even if doing so potentially erodes the protection to which those accused of crimes are absolutely entitled.

Thus we see a strong body of opinion in favour of banning altogether defence lawyers from referring in any way to the alleged victims sexual history. It is easy to see how such facts could be abused. Yet it is also possible to imagine that in the thousands and thousands of cases that come to court – whose precise content we cannot precisely anticipate – such questions could potentially be relevant. Our starting point, surely, has to be that an accused person should have the right to use all reasonable means to demonstrate his or her innocence.

Elsewhere the case for eroding crucial principles is made even more explicitly. Germaine Greer, writing in the independence called for the single crime of rape to be introduced by a spectrum ranging from ‘petty rape’ to full on rape – depending upon the severity of the of the offence.

“In exchange for allowing the offence to be downgraded”, she argued, “women should demand the lessening of the burden of proof. No one could take the uncorroborated statement of a complainant as sufficient basis for depriving a man of his liberty for years. But if what is alleged is common assault with a sexual component, and carries a lighter penalty, women’s testimony could safely be given more weight.”

The idea that that the burden of proof is something that can be exchanged is truly dreadul. As of course is the current situation wherein many rapists get off. Yet the latter is perhaps the price we pay for living in a free society.