An event that can have graver ramifications than coronavirus, has passed barely noticed.
The latest edition of the Crown Court Compendium tells judges to drop the term ‘beyond reasonable doubt’. Instead they must give “clear instruction to the jury that they have to be satisfied so that they are sure before they can convict.”
I don’t mean to trivialise the murderous pandemic. However, Britain can go through such ordeals and still remain Britain. A different Britain perhaps, but Britain nonetheless.
For, awful as such trials and tribulations are, they are peripheral to the core that makes the country what it is. But what is that core?
Some people, perhaps nowadays most, will say democracy. That view would reflect the modern obsession with form at the expense of substance. However, democracy is nothing but method of government and, as such, should be judged on the basis of the society it brings forth.
If it produces a just society, it’s to be lauded. If it doesn’t, it ought to be rebuked. But a just society is the ultimate practically achievable end, to which democracy may or may not be the best means.
The italicised words are critical. There are many pies floating through the sky, each a half-baked fantasy about universal equality, absence of poverty and disease, nonexistent crime and some such. These do nothing but distract people from what the public sphere can realistically deliver: justice.
The English Common Law arguably serves justice better than any other legal system in history. Unlike positive law practised throughout the continent, our law has evolved over centuries by carefully accumulating precedents and hence an understanding of what is and isn’t just.
While positive law is passed down from top to bottom, the English Common Law is vectored in the opposite direction. It’s based not so much on flashes of legal brilliance as on human wisdom and common sense, the more reliable faculties.
This legal system comes closer than anything else to encapsulating the British national character. Originally spinning out of scriptural commandments, it reflects such fundamental British qualities as equity, moderation, fairness, prudence.
Should the English Common Law be abandoned or debauched, Britain would no longer be Britain. Alas, debauchment is exactly what has been going on for years now.
Our common law is anchored by concepts held to be immutable for centuries. These include jury trial, habeas corpus, double jeopardy, the right not to give self-incriminating evidence – and proof beyond reasonable doubt as a standard required for a conviction.
All of these have been under a concerted assault. Margaret Thatcher, for example, didn’t hesitate to knock out one of the cornerstones: the right not to give self-incriminating evidence. Her stated reason was an upsurge in IRA terrorism.
Then in 2005, when IRA murderers had been elevated to the rank of statesmen, the government of the ghastly Tony Blair abandoned another lapidary law, that of double jeopardy. That time it used not terrorism but newly fashionable sex crimes as a pretext.
And now the requirement for the prosecution to make its case beyond reasonable doubt bites the dust. And it’s not just a change in wording.
Telling jurors “to be satisfied so that they are sure” means for them to have no doubts whatsoever, not just reasonable ones. If anything could produce even a lower conviction rate, this is it.
In fact, the demand for ‘reasonable doubt’ was introduced in the late 18th century specifically to make it easier for jurors to convict. Otherwise they feared the ancient law threatening “the Vengeance of God…” if they convicted without being sure.
Since the vengeance of God is no longer an omnipresent concern, why change the formula that has worked well for 250 years? According to the Judicial Office, “Judges may adapt their language to avoid difficulties some juries have with the phrase ‘reasonable doubt’.”
One wonders what part of reasonable doubt they don’t understand, and how their minds would be clarified by the new demand for, effectively, absolute certainty. However, if that problem is real, it brings into question the jury system as such.
For it can’t operate as an instrument of justice in the absence of a broadly based group of people who understand what justice is. That condition isn’t being invariably met in today’s British courts.
Thus an argument that a murderer had a tough childhood has been known to produce mitigated sentences or even acquittals, race has been seen as an extenuating circumstance, and political motives have been accepted as being more noble than unvarnished savagery.
That stands to reason. Jurors have to be drawn from the available pool of humanity, which, alas, has been poisoned by decades of comprehensive non-education and ‘liberal’ propaganda. As a result, courts are beginning to act as rubber stamps of egalitarianism, rather than agents of justice.
Something needs to be done, but the demand for absolute certainty will only make matters worse. Jury selection practices (indeed principles) deserve another look, something they are unlikely to receive.
For jurors are picked from electoral rolls, and everyone on them is deemed qualified not only to decide who knocked off that jewellery shop, but even who should govern the country.
Limiting eligibility for jury duty would be tantamount to limiting franchise, which is patently impossible – as I said earlier, modernity is committed to form at the expense of substance. And the form it’s committed to demands increasingly more, not less, egalitarianism.
The threat to our legality is real, and it can do something Covid-19 can’t do: turn Britain into something else.