Dan Hodges is wrong on the burden of proof. We must never sacrifice the innocent for the greater good

Dan Hodges believes that the high standard of proof set for the conviction of criminals is allowing too many to go free.

Instead of acquitting defendants unless there is proof “beyond reasonable doubt” that they committed the crime, Mr Hodges wants to change the system so that people can be convicted if it is merely “probable” that they are guilty.

Now it may be, as criminal barrister Dan Bunting has – and I hesitate to use the word about someone like Dan B whom I greatly admire – somewhat sneeringly suggested, that Dan H has just made “a rather silly comment in order to be controversial.” Of course he has a column to write, and it can’t be easy having to think of something interesting to write day in, day out. Certainly if I had to do it I would very quickly run out of material and desperation might well lead me to say anything, however outrageous and absurd, in order to generate a lively batch of comments underneath my column.

But I am afraid Bunting’s airy dismissal of Hodges isn’t really good enough. If changing the standard of proof really is such an obviously silly thing to do, then we need to address his arguments.

Here are 4 reasons why Hodges is wrong.

  1. Convicting an innocent person is usually worse than failing to convict a guilty one.

There are very few inflexible rules in life and there are exceptions to this one. Nevertheless, I believe it to be true in the vast majority of cases.

In relatively trivial cases it is obvious.

Take shoplifting. Hundreds of people steal from shops every day. It is a serious nuisance to large retailers, and more than a nuisance for small ones.

To convict a guilty shoplifter is a good thing. Others may be deterred and the guilty party may even be reformed, although that is perhaps unlikely. But though a good thing, it is, when all is said and done, a very minor victory over the criminal underworld. It is a correspondingly minor loss for society when a guilty shoplifter is acquitted. To be blunt: in the great scheme of things, it really doesn’t matter very much to society as a whole and probably not that much to the shop concerned.

Things however, look very different from the defendant’s point of view.

An absent minded woman leaves a shop without paying for a bag of frozen peas. Perhaps she is a respectable GP. A wrongful conviction for shoplifting will result in the loss of her job, and being struck off the medical register. Her whole future and perhaps that of her family depends upon whether a court pronounces her dishonest. If individual rights count for anything surely it is right that we demand the very highest level of proof before that happens?

Well, Mr Hodges may say, hard luck to her, but the greater good must prevail over hard cases like that. “You can’t make the omelette of a crime free society without breaking a few individual eggs.” And anyway, he might continue, most people accused of shoplifting aren’t like that, are they? They are old lags with a string of convictions who steal to fund a drug habit; rotten eggs that we shouldn’t worry too much about breaking anyway. Perhaps there is a grain of truth somewhere in that, but the consequences for an old lag wrongly convicted of a trivial crime can be just as serious, in their own way as they would be for a respectable GP. He may be on a suspended sentence and half way to beating a lifelong drug habit; a shoplifting conviction will result in him going straight back to prison. A wrongful conviction for him may, in its own way, ruin his life just as much as it ruins the GP’s life.

In trivial cases, then, the consequences to an individual of a wrongful conviction are likely to be so much greater than the consequences to society of a wrongful acquittal.

But perhaps the same does not hold true for more serious cases. It would be an odd justice system that required a higher degree of proof for a trivial crime than for a serious one; after all most people would surely feel intuitively that, if anything, the more serious an allegation is the more important it is that it is proved to a high standard. But of course most people can be, and often are, wrong.

The most serious case is murder. Let’s take the worst, most emotive and horrific of all types of murder: the child sex murderer. Should we lower the standard of proof in that type of case so that we can convict people about whose guilt we are unsure?

If a guilty man is acquitted the consequences are certainly appalling. The family of the dead child is denied any retribution. Those who have not suffered such a loss cannot imagine the suffering that a wrongful acquittal must bring to the family. They will be tortured by the sight of a man they believe has murdered their child walking out of court to enjoy freedom for the rest of his life. The parents, brothers and sisters of the murdered child, meanwhile, will look forward to lives in which time will never heal their pain. Over and over again their imagination will go back not just over the wicked crime that has been committed, but over the gross injustice that someone has “got away with it.”

Worse still, the guilty man is then free again, and perhaps free to kill again.

But terrible though this is, convicting the wrong man is even worse.

In many cases, whenever a man is wrongly convicted of murder, the real murderer gets away with it, and is free to kill again. Indeed, the real murderer may even be emboldened by the fact that an innocent man has been convicted. Reginald Christie, for example, killed at least four more times after the innocent Timothy Evans was wrongly convicted (largely on Christie’s evidence) of murdering his wife and daughter.

So either wrongful result, conviction or acquittal, means that a guilty man is free to strike again. There is little to choose between them in that respect.

And the suffering of an innocent man gaoled for the rest of his life (and in the case of a wrongly convicted child sex murderer the chances are that he would be gaoled for the whole of the rest of his life) is about as terrible as one can imagine. It doesn’t really do justice to his situation to say that his life is ruined, but ruined it is, almost as surely as if he were to be killed.

The fundamental purpose of imprisonment, however much it may be dressed up in fine words about rehabilitation or re-education, is to punish. Prisons exist to inflict pain and suffering on their inmates. The wrongly convicted child murderer is almost literally cast into a Hell on earth in which the resources of the State are used to feed him and house him for one reason only: to ensure that he can continue to be punished until the day he dies. And of course, the fate of anyone in prison for murdering a child is inevitably going to be especially horrible, for he will be loathed and despised by practically everyone.

Few people are entirely without a family and the lives of those close to the innocent man too, will also be, in many cases, devastated.

It is hard to say who suffers most: the family torn apart and grieving over the cruel murder of their child, compounded by the injustice of the killer going free; or the family torn apart and grieving over the fact that a husband and father has been thrown into the third circle of Hell, hated and despised by all, because of an unjust finding of guilt.

Hodges says “the wrongly accused can still retain hopes and dreams of their injustice being overturned. The hopes and dreams of the murder victim have been taken for good.”

But this is an entirely false point. However bad the suffering of the bereaved may be, only part of it is caused by the wrongful acquittal. The greater part is caused by the murder itself and even a guilty verdict cannot reverse that. It can ease the suffering of the living but it cannot bring the dead back to life. Even if the right man is convicted the “hopes and dreams of the murder victim have been taken for good.”

For the wrongfully convicted man and his family, however, their suffering is entirely caused by the fact of his wrongful conviction.

  1. The Prosecution have all the advantages.

The police, of course, are meant to be impartial and no doubt in the early stages of most investigations they are. But there comes a point when the police believe that they know who did the crime, and their investigations are geared, in the main, towards proving that fact.

Prosecutors too, whilst they usually do their best to act fairly, will concentrate on prosecuting. Good prosecutors will advise the police to gather the evidence that they need to prove their case. They will certainly not go out of their way to assist a defendant.

Police resources are certainly not unlimited, but they are vast in comparison to anything that even a fabulously wealthy suspect can bring to bear.

Even before a crime is committed the police may decide to target individuals with covert surveillance. Communications can be intercepted. Bugs can be placed in houses or cars, under-cover officers can be deployed to gather evidence before a suspect even knows that he is under suspicion.

If a crime is committed the police will choose what to photograph, what exhibits to seize and what witnesses to speak to.

The police have public relations expertise on hand and the ability to release carefully chosen snippets of information designed to further a particular agenda. We saw the malignant effect of this in the widely publicised search of Sir Cliff Richard’s house last summer.

The police have the power to arrest, to hold suspects in custody or to release on bail. In identification cases they can arrange identification procedures (not, these days done in an old fashioned line up, but by showing a controlled selection of video images on a computer screen).

The police have access to the criminal records of anyone at will.

The police can call upon the resources of forensic scientists in any conceivable area of expertise: DNA, pathology, medicine, accident reconstruction, computing: the list is endless. (The fact that they can do so does not always mean they do so wisely though. They have been known to squander their resources on useless experts: the use of a psychological profiler, for example, led the police down a blind alley which led to the wrongful prosecution of innocent Colin Stagg for the murder of Rachel Nickell, and in one murder case within my own knowledge the police even consulted a clairvoyant; needless to say the crime remains unsolved.)

Although the police do not have the power to hold suspects in custody for more than a fairly short time, it is still an immense power. Many, many suspects have been broken and have confessed to things that they have not done merely because of the psychological effects of being held in a police cell. Most suspects, for whatever reason, do not even exercise their legal right to consult a solicitor in the police station, believing, wrongly, that if they have done nothing wrong they have nothing to fear.

In more serious cases a defendant is then likely to be held in prison for months before the trial takes place. It may be necessary but it is another handicap that a defendant has. Even if he is granted bail it may be hedged about with conditions requiring him to leave his home town and to avoid all contact with witnesses. Again there may be good reasons for such conditions but all such restrictions all add to the difficulties that a defendant faces.

It is true that once a suspect is charged he is then permitted to look at those parts of the evidence already gathered which the prosecution, in its discretion, feels may perhaps undermine its case or assist his. If he is rich enough or granted legal aid – a big “if “ now that anyone with a disposable income of over £35,000 is denied it – he can instruct lawyers to defend him. He may even have a certain, very limited, ability to instruct expert witnesses to conduct inquiries on his behalf, although in practice these are likely to be limited to attempts to answer the evidence that the prosecution has already gathered.

Nobody can doubt that in terms of both legal powers and financial resources the defendant is massively out-gunned by the prosecution.

If, at the trial, the prosecution were then obliged merely to prove guilt “on the balance of probability” who can doubt that this huge imbalance of resources would ensure that it would almost always succeed, and would do so almost irrespective of the justice of its case.

3. Lowering the standard of proof would lead to a collapse in respect for the justice system.

At present the police often have to work hard to obtain a conviction. To be sure, there are plenty of cases where guilt is never in issue. The burglar may be caught red-handed and the suspect might put his hands up straightaway. We are not concerned with those types of case.

But where a case is contested the police know that without powerful evidence the prosecution will collapse in court. If merely making a jury think someone was “probably” guilty sufficed, the police would not need to try hard to find evidence. Rounding up the usual suspects would do the trick.

In fact, given that evidence of previous convictions and “propensity” is now routinely given, that there is no longer any requirement for evidence to be corroborated, and that a suspect’s silence when questioned can now be held against him it should be quite easy to establish a “probability” of guilt with virtually no evidence that a person has even committed the crime with which he is charged.

And it would not be long before the public, rightly, became outraged by such a system. Badly prepared cases based on flimsy evidence would lead to convictions, which would then be endlessly appealed and re-appealed as innocent people clogged up the courts with demands for justice. Before long, trust in the system would entirely evaporate.

  1. Every civilised society in the world requires a high standard of proof for criminal liability.

Recognising, as civilised legal systems have usually done, the impossibility of proving a negative, Roman law had the maxim Ei incumbit probatio qui dicit, non qui negat, usually translated as “proof lies upon the one who asserts, not the one who denies.”

Going still further back in time, Abraham, aware of wickedness in Sodom, asked God:

Wilt thou also destroy the righteous with the wicked? Peradventure there be fifty righteous within the citie: wilt thou also destroy and not spare the place for the fiftie righteous that are therein? … And the Lord said, If I find in Sodom fiftie righteous within the citie, then I will spare all the place for their sakes.”

The Old Testament God, it should be pointed out, was no Hampstead liberal, but even He thought it better that the wicked Sodomites should be spared than that fifty, or fiftie, innocent ones should be condemned.

The requirement of proof “beyond reasonable doubt” for criminal offences is a thread that runs throughout the common law world from the United States to Australia, South Africa, India and Malaysia. It is also applies under French and Dutch law and, with some modifications, in most other democratic legal systems.

So Mr Hodges’s proposal would certainly be radical. Nevertheless he is not without supporters from history, although whether they are the sort of supporters he would choose to have is a different matter.

Bismark, for example, would have supported him, for he famously said:

“It is better that ten innocent men suffer than one guilty man escape.”

Aggressive, bad tempered and domineering though he was, Bismark is probably the best of a bad job amongst Hodges’s other supporters.

NKVD Commander, the “Bloody Dwarf” Nikolai Ezhov, for example, thought:

Better that ten innocent people should suffer than one spy get away. When you cut down the forest, woodchips fly.”

(In due course he joined the many millions of other wood chips that his philosophy had created).

Felix Dzerzhinsky, the founder of the Cheka, took Benjamin Franklin’s famous line “better that one hundred guilty men go free than one innocent person should suffer,” and turned it round:

better to execute ten innocent men than to leave one guilty man alive.”

Felix Dzerzhinsky: impatient with bourgeois concepts of proof
Felix Dzerzhinsky: impatient with bourgeois concepts of proof but little in common with Dan Hodges

Pol Pot took a similar line:

Better to arrest ten innocent people by mistake than free a single guilty party.”

Nazi jurists, of course, more or less abandoned any concept of proof at all.

Mr Hodges of course is no Dzerzhinsky and has almost nothing in common with Pol Pot, despite both espousing (very different) versions of socialism. But I begin to detect a note of Dzerzhinskyesque hysteria when he asserts:

If the thousands, maybe millions, of men who have successfully got away with raping women because of the almost impossibly high threshold for conviction were prosecuted and convicted on a balance of probabilities test, would that honestly represent a miscarriage of justice?”

Thousands? Millions? Who cares about minor details like that.

Almost impossibly high threshold for conviction?” Actually, not at all. Around about 60% of rape cases referred to the CPS each year result in convictions: that is approximately 3,750 – 4,000 rape convictions every year.

Would it honestly represent a miscarriage of justice if men could be convicted of rape on a balance of probabilities?”

Well, yes, it would. It would lead to the most appalling injustice being built into the system. If you convict people, as Hodges suggests, on the basis of 51% probability of guilt then inevitably you are going to convict a high proportion of innocent people. It would mean that thousands, perhaps millions, of men would be condemned not because anyone was sure of their guilt but because they were regarded as so many expendable wood chips.

Never mind that, implies Hodges. The ends will justify the means. We may have to sacrifice the innocent but at least we will imprison the guilty.

Frankly, despite the forceful arguments put by Hodges, Bismark and Dzerzhinsky I’m not persuaded. I’ll stick with God, Benjamin Franklin and the traditional view; that the central objective of any fair justice system must be to ensure that the innocent are protected. That means, above all else, ensuring that only the guilty are punished.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

18 thoughts on “Dan Hodges is wrong on the burden of proof. We must never sacrifice the innocent for the greater good”

  1. A few months ago, I was at a ‘meeting of experts’ with regard to a case of indecent images found on a computer. When I suggested to the Prosecution that there was evidence on the Defendant’s computer that an identified third party may have been responsible for the images, the police analyst showed little interest and said all that mattered was that someone gets convicted.

  2. I doubt Mr Hodges would think of himself or one of his own as, ‘expendable wood chips’ should such a misfortune befall him or his ! One would almost hope that it would !

  3. An excellent analysis of a sensitive subject. It’s at times like these that I feel a large portrait of the late Stefan Kiszko should be hung on the wall of every jury room in England and Wales. That terrible case, in which a totally innocent and very vulnerable man was framed and then sentenced to life imprisonment for the appalling sex murder of poor little Lesley Molseed in 1975, shows the real consequences of lowering the burden of proof, particularly in these high profile cases.

    Mr Kiszko served 16 years of his sentence in often dreadful conditions before it came to light that he had been framed through the deliberate concealing of forensic evidence that proved his complete innocence. He was utterly destroyed by the time he was finally released in 1992, only to die the following year. However – and this is the reason convicting the innocent is so horrendous – the real perpetrator, Ronald Castree, was not apprehended until 2006. During the intervening period while he was free and Mr Kiszko was wrongfully imprisoned for the murder, Castree went on to offend against another young girl in 1976.

    Convicting the wrong person doesn’t just destroy their lives and often their family, but it can allow the guilty to continue committing terrible offences. That is one very important reason that the end can never justify the means in the criminal justice system. To suggest otherwise is to betray the real victims and to cruelly deceive both their families and the general public.

  4. Amazing, Saunders bleats about how the case against De Freitas passed the ‘evidential’ and ‘public interest’ test, and well it might but these tests are only as good as those who apply them. The recent Yewtree trials provide ample evidence that neither CPS test is being applied. Bad enough to lose your name and home ! Sally Clark and Mr Kiszko (and his mam), lost so much more. Get it right the first time and if you can’t find sufficient evidence, err on the side of caution and, humanity. It’s clear that Ms DF’s rape claims should have been assessed better in the first instance. I don’t know all the facts but seems to me that all parties were failed here !

  5. All very fair arguments, Matthew, but since we know there are still many miscarriages of justice using the higher criminal standard (as was the case with Kiszko), isn’t the obvious conclusion that ‘absolute certainty’ needs to be the criminal standard of proof? We are talking about percentages of certainty, so who is to say 80% certain is good justice while 79.5% is bad justice?
    Interestingly while you dwell on the diligence of the police in gathering evidence etc, surely you will acknowledge that many cases are won or lost on the relative skill of the counsel on both sides. If that point is accepted, then rather than moving the level of probability, we should ensure that only the top silks prosecute all serious criminal cases (yes I know I am being silly here), in order that the jury has the level of doubt substantially lowered for them by the persuasiveness of the prosecution case.

  6. You are absolutely correct to state that it is better for a guilty person to “go free” than for an innocent person to be convicted.

    The reason I put “go free” in inverted commas is because, as a Christian, I believe that there is One who sees everything and to whom we must account.

    Incidentally, I was once wrongly charged with a particularly nasty assault (in the days before CPS). Fortunately my brief exposed the lies of the Police and I was cleared. I know what it is like to be wrongly accused; to be wrongly convicted must be a dreadful experience.

    1. The USA Supreme Court in Briscoe v. LaHue, 460 U.S. 325 (1983) commented that police perjury is near-universal. The case was about a wrongly convicted person suing perjuring police officer witnesses for damages from false imprisonment resulting from the perjured testimony.
      The Court ruling pretended that perjuring officers who might be held civilly liable for damages would be personally held responsible and their assets and pay seized. Actually the police agency that employs the officer(s) will pay any damages (that they can’t weasel their way out of).
      http://biotech.law.lsu.edu/cases/evidence/brisco_v_lahue.htm

      http://www.srhunterlaw.com/Police-and-District-Attorneys-Lying-in-Court

      http://users.soc.umn.edu/~samaha/cases/slobogin,%20testilying.htm

  7. An interesting article. I do have to say that I am seriously worried about the way our judicial system is going. Trying someone in a court of law should be about what happened and getting to the truth. But it’s not. It’s all about which side has the better performer in court overseen by a hugely biased umpire. I find it amazing that anyone ever gets acquitted given the sheer weight of stuff against it. From police who decide who committed the crime and even when the evidence points elsewhere fail to do an open and thorough investigation, to the CPS being able to quite legitimately withhold evidence that could set someone free or ignore evidence that doesn’t back up the guilty verdict they are after to juries who spent a lot of time and effort trying to get out of a trial and when they fail don’t really care about the fate of the person whose life they are about to trash – they just want to go home and voting for a guilty verdict is the quickest way to do that. To crappy defence counsel who fail to provide the standard of defence they should; who ignore client’s instructions and blackmail clients into taking guilty please because they can’t be bothered to do the work necessary to get an acquittal

    1. In the USA, to get out of jury duty, refuse to take the oath/be sworn in. I don’t know about the UK – perhaps one can be jailed (gaoled) for contempt for refusing to be sworn?

  8. Ooops! I pressed the wrong button. I meant to say, if I was a young man I would leave this country if ever we decided to put people away just because we didn’t like the look of them, or because they ‘looked guilty’ or were inarticulate, or poor, or just because someone accuses them of a crime.

  9. When Mr Hodges is arrested, a fantastically large bail is set, and the prosecutor pleads the honorable Court, “If he was not guilty, your worship, I am sure our police would not have arrested him.”
    The California law of jury instructions requires that the jury be directed that the testimony of the complaining witness is sufficient to support a conviction for rape. Mere accusation is proof of guilt!

  10. Dan Hodges:
    “If the thousands, maybe millions, of men who have successfully got away with raping women because of the almost impossibly high threshold for conviction were prosecuted and convicted on a balance of probabilities test, would that honestly represent a miscarriage of justice?”

    BB: “Thousands? Millions? Who cares about minor details like that.”

    DH: “Almost impossibly high threshold for conviction?”

    BB: “Actually, not at all. Around about 60% of rape cases referred to the CPS each year result in convictions: that is approximately 3,750 – 4,000 rape convictions every year.”

    Is there any breakdown of these convictions into:
    • She said – he said – no evidence of brutality, violence or threats, he admits having intercourse with her but says it was consensual, or that she was the aggressor
    • Drunkenness/drugged into insensibility – either or both
    • He was insensible, she was the aggressor
    • She consented but changed her mind
    • During intercourse
    • After intercourse
    • Immediately
    • Next morning
    • Days later
    • Next week
    • A month later
    • Much later (I’ve read that in California rape, or “sexual assault,” whatever that means, can be charged up to 20 years after the time alleged of the incident.)
    I am not addressing the alleged rapes in which brutality, violence and threats of violence, which are crimes in themselves apart from an alleged rape, are proven beyond a reasonable doubt. Substantial prison sentences can be imposed without the emotional element of rape having to be proved. Once convicted of these crimes, rape can be introduced at sentencing as an aggravating factor.
    If abuse other than penis-in-vagina can be proven (beyond a reasonable doubt), sodomy, unnatural sexual acts, can be prosecuted, as can disease transmission (from assaulter to victim).

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