Legal profession reels at suggestion we should lower the burden of proof in criminal cases

On occasion, and with the best of intentions, a journalist will fasten his tin helmet and poke his head above the parapet. Whether their aim is to shine a light on an issue of fundamental legal importance; right a societal wrong; or expose an injustice the rest of us have turned a blind eye to, more often than not those brave souls are rewarded, if not with Pulitzer prizes, then at least by acclaim from their loyal readers.

Yet every now and then a journo will get their head blown off – metaphorically speaking of course – on social media. The latter certainly occurred on Monday night. Bullets were fired at Telegraph columnist, Dan Hodges, and they came from the legal profession.

Hodges’ latest piece followed the collapse of the Shrien Dewani trial after judge Jeanette Traverso decided there was no prospect of a court finding beyond a reasonable doubt that Dewani had been involved in his late wife’s murder. In the aftermath of the decision, Hodges decided to pose a rather interesting and provocative question: why are legal systems weighted in favour of those standing trial? before then going on to suggest that the evidential threshold of ‘beyond reasonable doubt’ is too high and should potentially be changed to one of ‘a balance of probabilities’.

“The fact that the guilty party probably, on the balance of probabilities, committed the crime, is deemed irrelevant. The scales of justice are weighted in favour of the alleged perpetrator, rather than the prosecutor. Why? Obviously there is a noble principle underpinning this legal convention. The presumption of innocence until proof of guilt. But why do we start by setting the burden of proof artificially high?” wrote Hodges.

If Kim Kardashian failed to ‘break the internet‘ then Hodges may have succeeded on Monday. As I stepped onto a southbound Northern Line train and read Hodges’ first tweet, I figured there may be trouble ahead for the former Labour Party official turned broadsheet journalist. By the time I exited the tube and re-established my link to the Twittersphere the battle was in full swing as Hodges attempted to defend his column from the ‘Legal Twitterati’. The responses to Hodges’ piece ranged from bemusement, shock, exasperation, indignation and everything else in between.

Interestingly, the social media meltdown came not just from criminal practitioners, but from all areas of legal practice. There were far too many attacks on Hodges’ piece to detail here, but just to give a flavour of the responses, 36 Bedford Row barrister, Rebecca Herbert, sarcastically tweeted: “Perhaps all this burden of proof stuff is old hat anyway. The police would hardly arrest an innocent man. And trials are tiresomely costly.” @DefenceGirl replied: “Dan, this is quite the bag of shit. You’ve gone all Daily Mail on us. Snap out of it.”

After engaging in some debate, @nearlylegal decided to leave Hodges to it “before he insists on trial by ordeal (‘better innocent drown, than guilty go free’)”. While the usually mild-mannered 11 KBW silk, Sean Jones QC, responded: “Before writing about the criminal standard of proof first decide if you care whether innocents get locked up. If you don’t – shut up.”

After the dust had settled, I spoke to Hodges and asked if, having taken the time to digest the comments made on Twitter, he still stood by his piece.

“Absolutely, if anything the debate reinforced, in my own mind, what is the fundamental problem: the failure, in any way, to question, examine or interrogate the moral proposition that imprisoning an innocent person is significantly more morally wrong than letting a guilty person go free. Similarly, the proposition that a legal system based on that moral premise is therefore deliberately weighted in favour of the accused and, if you like, against the victim or prosecuting authorities,” he said.

I asked Hodges if he understood what about his piece had riled the legal profession. It may come as a shock to some but he admitted to “completely understanding the argument” that others posed: “The people who want to protect the rights of the innocent are not coming from a maligned basis”, he said. “But in the legal community there does not seem to be an adequate understanding, or a desire, to factor in the moral implications of allowing a guilty person to go free. It is also worth noting that we only use the term ‘miscarriage of justice’ in an instance where an innocent person is jailed. I think it is interesting that we never use the term in relation to a guilty person being freed.

“People are arguing from a moral perspective and I understand that. What interested me was that the bulk of the commentary tends to reinforce my perception that the legal profession places primacy on protecting the innocent above convicting the guilty. That to me is not the job of the judicial system. For me the two are morally equivalent but in the eyes of the legal profession one is morally superior to the other.”

Hodges was keen to stress that he is far from comfortable with the suggestion that a lower burden of proof would mean more innocents would go to prison: “That may be the logical reaction to what I was advocating but you can easily inverse the question: are people happy that a lower burden of proof means more guilty people walk free?

“As we can see in relation to particular crimes, rape is obviously the most emotive and compelling example, the very nature of the evidential threshold makes it very difficult, indeed almost impossible in certain circumstances, for there to be a conviction. That has to be troubling. I don’t think that was really acknowledged [in the debate]. People cite the 60 per cent conviction rate in rape cases, but as we know only a very small number of cases make it to court in the first place.”

Hodges still believes it is time we started trusting juries more with decisions of innocence and guilt: “At the moment we don’t. We don’t say to the jury ‘do you think the person in front of you is guilty?’ We place an evidential threshold that says ‘you may think the person in front of you is guilty but we will not allow you to convict on that basis’. There is an argument to simply trust juries. If you think they are guilty then convict and if not then acquit.”

While admitting that he enjoyed the debate, Hodges explained to me that he was disappointed by an attitude by some members of the legal profession. “[They suggested] I wasn’t able to debate this as I had no background in jurisprudence. When you write commentary as I do on a range of issues, particularly politics, and everybody by definition is allowed to have a view on politics, it just reinforced the idea that this is not an issue that gets interrogated much because [it is] self-affirming.”

With the government’s sustained attacks on the legal profession, such as with legal aid, human rightsand judicial review, it is perhaps understandable lawyers might react strongly to the suggestion we should abolish a principle that has underpinned our legal system for centuries. The principle continues to ‘soothe my liberal sensibilities’ even if it no longer does the same for Hodges, so despite often enjoying his pieces, I find myself respectfully disagreeing with him here.

Lowering the burden of proof to one of a ’51 per cent plus probability of guilt’ is more than just misguided, it is dangerous. The result could be a dragnet that traps the innocent purely to get to more of the guilty. I for one have always been of the opinion that it is better for a hundred guilty people to go free than for one to be punished for a crime they did not commit.

Besides which the proposal would, at least at the moment, be completely unworkable. Every conviction could potentially be subject to appeal, vastly increasing the number of applications already submitted to the Court of Appeal. Moreover, where exactly are we to put this influx of ‘criminals’? The country’s current penitentiaries are not just rotten and overcrowded, but are also rife with sexual abuse. Although, with the number of suicides in prisons increasing, maybe a ‘one-in-one-out’ accommodation could be reached.

I am sure there will be plenty of people who, having been the victim of crime, will be ready to disagree with me on this matter, as many lawyers disagreed with Hodges. But perhaps SJ’s tamed, green, submission machine, Barrister Hulk, put the argument more succinctly when he rounded off Monday night’s debate: “LOWER BURDEN OF PROOF MEAN LESS EVIDENCE. LESS INVESTIGATION. MORE FUCK UPS.”

This blog was first published in the Solicitors Journal on 10 December 2014 and is reproduced with kind permission.