The Gazette 1972

Criminal Law Revision—The

Prosecution Viewpoint

by LIAM McMENAMIN, Solicitor

"It is better that ten guilty men go free, than one

innocent man should suffer."

This is the basic premise of the Criminal Code,

running through the legal fabric from the Roman law,

restated forcibly in Blackstone's Commentaries, and

maintained by legislation and the Courts until the

present time.

But can modern society indulge in the luxury of such

a lofty sentiment? This is a most serious issue, warrant-

ing the most earnest consideration. Society in its own

enlightened self-interest would do well to make a thor-

ough examination of the present-day Criminal Code. It

is time that equal emphasis be placed on another funda-

mental principle—That the first duty of Government is

to protect the life of the individual, and the second

duty is to protect his property.

Can both principles exist side by side? Of course they

can. All laws must be just and fair, based on common-

sense and fair play. The Criminal Code is so heavily

weighed in favour of an accused person that justice

becomes a game played under artificial rules with know-

ledge of these rules and their application to the peculiar

facts of each case being the paramount consideration,

rather than seeing justice done. It is an elementary

proposition that any Judicial Tribunal must have the

truth

—no rule of law or evidence should hinder such

truth being ascertained. It is sad that the capacity to

pay for the best criminal lawyer can defeat punishment,

just as the hiring of the best financial brains can evade

payment of income tax and death duties.

Revision of Criminal Code

It is remarkable how little thought has been given to

revision of the Criminal Code, and indeed only arises

now in the days of the professional criminal, and atro-

cities committed in the name of "political crime". Let

us examine the historical background. Even in the days

of Blackstone (1723-1780) his contemporary Bentham

(1748-1832), the philosopher and reformer, was highly

critical. When speaking on the Rules of Silence (the

right of an accused person to remain silent and to say

nothng) he expressed himself thus :

"If all criminals of every class had assembled, and

framed a system after their own wishes, is not this Rule

the very first they would have established for their

security? Innocence never takes advantage of it; inno-

cence claims the right of speaking, as guilt invokes the

privilege of silence."

This is a quotation of a statement made 130 years

ago. It is of equal and even greater validity today.

Added to the professional criminal and the political

criminal, there is the subversive agitator. There is now

a cult of violence, regrettably fostered and fanned by the

news and television media, who in their wisdom can

give saturation coverage to openly declared men of

violence, while the same issue or news bulletin might

just squeeze in a bare mention of some serious and

thoughtful paper or lecture delivered at a seminal <>i

group study.

Changes listed

How have things changed since Blackstone and

Bentham ? Consider the following points :

(1) Another contemporary was Sir Robert Peel (1788-

1850), the founder of the first modern police force.

(2) Until well into the twentieth century, all evidence

would have been virtually eye-witness, before the devel-

opment of forensic medicine and pathology as exact

sciences, which in turn made such a basic change in the

detection of crime, and in so very many cases being

much more in ease of a suspected individual than

leading to a conviction.

(3) The art of fingerprinting has now been reduced

to a very exact science, but total records are no more

than fifty years old. This was the most significant

advance of all in criminal detection—again exonerating

more than convicting.

(4) The Penal Code is now operated by a responsible

police force, who in turn are advised by law officers who

are well aware of the duties and responsibilities.

It must be admitted that old notions die hard—that

the police are pressured to look for someone for a crime,

and are not too particular whether such person is

actually guilty or not, even going so far as to fabricate

evidence. This may have been so; but the public can

have total assurance that in these times nobody con-

nected with the administration of the criminal law will

attempt deliberately to convict an innocent man. Indeed

any attempt by a police officer to do so would in all

probability mean instant dismissal from the force. It is

worth noting at this juncture that one of the leading

voices for criminal law reform is that of a policeman,

Mr. Robert Mark, the Commissioner of the London

Metropolitan Police. Mr. Mark has given many lectures

on the subject, and he certainly does not call for any-

thing like draconian powers for the police—indeed all

he does is make a simple request for an even break.

His theme is that it is much better to have sensible

reforms now rather than have desperate measures when

crime threatens to overwhelm society. He argues force-

fully that only the police have the total picture, with

special regard to the vital statistics of unsolved crime.

Having therefore advanced some arguments in favour

of the ascertainment of

truth,

we can consider how

society and the individual can be protected, each at the

same time. Science, as stated, has become a crucial fac-

tor, with such latter-day extensions as the blood alcohol

tests, paraffin tests to show discharge of weapons, etc.

This then gets to the consideration of the two basic

principles of the criminal law : (1) The Burden of Proof,

and (2) The Rule of Silence.

The Burden of Proof

(1) The Burden of Proof: The presumption of inno-

cence must, of course, be maintained. The onus must

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