Don’t ease the state’s burden of proof

The burden of proof in modern criminal justice systems – where the prosecution must prove ‘beyond reasonable doubt’ that the defendant is guilty before the defendant can be convicted and punished – has found itself in the dock.

On 9 February, UK prime minister Tony Blair announced the formation of a new FBI-style crime-busting organisation for Britain – the Serious Organised Crime Agency. Off the back of the Morecambe Bay tragedy, where 19 illegal Chinese immigrants died while collecting cockles, Blair said that for serious crimes such as people-trafficking or drug-trafficking the need to prove guilt beyond reasonable doubt should be relaxed. He claimed that serious criminals often escape prosecution ‘because it is impossible to prove guilt beyond reasonable doubt’: ‘I think people would accept that within certain categories of case, provided it’s big enough, you don’t take the normal burden.’ (1).

Earlier in February, UK home secretary David Blunkett suggested watering down the need to prove guilt beyond reasonable doubt in trials of suspected terrorists. Blunkett proposed lowering the burden of proof from the criminal law’s exacting need to prove guilt beyond reasonable doubt to what is acceptable in civil cases – the ‘balance of probabilities’ (2).

Also last week, there was outcry when Abdelghani Mzoudi, a suspected accomplice of the ‘Hamburg cell’ that apparently organised the 9/11 attacks on New York and Washington, was acquitted by a German court after it failed to prove beyond reasonable doubt that he was an accessory to 9/11. Mzoudi’s trial appeared to be heading for a conviction after prosecutors showed that he was a close acquaintance of the 9/11 hijackers, had transferred money to one of them, and had attended a terrorist training camp in Afghanistan – but then a letter from a suspected leading member of al-Qaeda was passed to the court, claiming that Mzoudi had no prior knowledge of the attacks. This created grounds for reasonable doubt as to his guilt, and the court had little choice but to acquit.

The need in criminal cases to prove guilt beyond reasonable doubt is indeed a high and sometimes unattainable standard. It means that even if those charged with deciding the outcome of a case, normally a jury, suspect that the defendant is guilty and have seen evidence suggesting that he is guilty, but still harbour doubts or are not fully satisfied that the prosecution has proven his guilt, then they must find the defendant not guilty.

This can make it difficult for the prosecution to convict a defendant – but rightly so. Proving guilt beyond reasonable doubt is not some technicality that can be thrown out because it sometimes allows big-time criminals or potential terrorists off the hook; it is an important legal principle that shifts the balance of forces in criminal trials in favour of the defendant, and guarantees that individuals get something approximating a fair trial.

The balance in criminal trials is hugely unequal. On one side there is the prosecution, which represents the Crown and which has the forces of the state at its disposal – including police time and investigation and the ability to send defendants found guilty to one of Her Majesty’s prisons. On the other side there is the defence, which offers legal representation for the defendant.

Traditionally, the power of the state, with its coercive apparatus and its monopoly on the legal use of force and imprisonment, has been recognised as posing a potential threat to the liberty of the individual. In this context, the assertion of the rights of the individual to procedural protections in criminal trials has been central to the assertion of our democratic rights, a means of protecting individuals from the state.

There are other legal principles that have helped to balance this unequal relationship between state and individual: defendants are presumed to be innocent until proven guilty, putting the burden of proof entirely on to the prosecution; defendants have had the right to remain silent, meaning they had no legal duty to answer police questions or to give evidence at their trial (though in Britain this was severely restricted by the Conservative government in 1995); defendants have the right to be tried by a jury, meaning that 12 (or at least 10) of their peers have to be satisfied that they are guilty, rather than a single judge; and finally, that jury must be satisfied about the defendant’s guilt beyond all reasonable doubt.

In civil law there is a lower standard of proof – where cases can be won on the ‘balance of probabilities’ rather than on the elimination of any reasonable doubt – because the clash is between nominally equal forces, normally two individuals, and the role of the state is merely to provide a forum for the settlement of their dispute. No such equality exists in criminal cases – except that equality provided by hard-won legal rights that allow individuals some measure of independence and innocence in the courtroom, until the prosecution can prove beyond doubt that they are guilty of an offence.

And criminal cases, unlike civil cases, can result in a defendant losing his or her liberty, the highest punishment that the state can mete out. For these reasons, because the state is powerful and because individuals value their freedom, it is right that the prosecution should have a bloody hard time gaining a conviction – even if that means that sometimes bad guys get off.

Blair and Blunkett’s proposals to ease the burden of proof for the most serious crimes, such as drug-trafficking or terrorism, would mean making it easier to convict in cases that can result in the highest punishments, such as 10 or 15 years’ imprisonment. Surely in these cases, where the defendant stands to lose most if found guilty, the prosecution should be especially thorough in putting its case to the jury?

Over the past 10 to 15 years, governments have renegotiated the relationship between the state and individual – and it has all been in the same direction. The right to silence has been undermined, New Labour has restricted the right to trial by jury for ‘complex’ cases, the bar on trying someone twice for the same crime (double jeopardy) has been lifted, and now doubt is being cast on the ‘beyond reasonable doubt’ rule. There is more at stake here than the occasional drug-dealer or ‘gangmaster’ escaping a prison sentence.

Read on:

Morecambe Bay, by Josie Appleton

(1) Rougher justice for drugs barons and gangsters, The Times (London), 10 February 2004

(2) Blunkett plans tough terror law, BBC News, 2 February 2004