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rest on the State to prove what they allege. It is up to
the Government of the day to supply the trained men to
detect crime, and these men must be given all necessary
facilities to assist them in such detection. The police
must be aided by pathologists and trained scientists and
chemists to assist them with every possible scientific
aid. No juryman need have a crisis of conscience if he
feels that the prosecution could have proved their case
beyond doubt if some extra effort had been put into the
investigation, and votes for an acquittal. The State
must discharge their primary duty of protecting the
citizen and his property, although in practice this is but
a pious sentiment if one takes as a yardstick the amount
of money devoted to such a purpose from the public
purse. If some Government Department or Agency
decides that the numerical strength of a police force
should be reduced without taking into account the
deterrent factor of a police presence, then they cannot
complain if they have sown the seeds of anarchy.
This brings us on to the quantum of proof. Juries are
told of the "beyond all reasonable doubt" burden on
the State. To a fresh and inexperienced juryman this
direction from a trial Judge can lead to agonising
scruples of conscience. But take the experience of juries
in the Crown Courts in England. Here a juryman can
serve on three or four juries in one sitting of the Court,
and can end up in his last case smiling at the verbal
histrionics of defending counsel which had affected
him so much in the first case. Therefore we must apply
another principle in deciding on the quantum of proof,
and one can do no better than quote Viscount Simon :
"a miscarriage of justice may arise from the acquittal
of the guilty no less than from the conviction of the
innocent" (Stirland 1944 A.C. 315 at 324). Applying
this principle logically, a jury should be instructed to
apply the yardstick that the injured party is entitled to
the same legal rights and protection as that afforded to
the accused. Somehow there is a mistaken natuial
sympathy for a person accused, probably arising from
the feeling that here is an unfortunate individual being
steamrolled by the overpowering forces of the law. The
innocent victims seem to be overlooked or indeed for-
gotten. Nowhere is this more poignant at the present
time than in Northern Ireland, where so many have
died and their admitted murderers have been condemned
only by a few brave voices. So all law must be fair to
all sides just as in the civil law. There is no argument
to permit an entire code of protective laws for a person
who has committed a serious crime. Justice must be
for both sides.
The Rule of Hearsay Evidence
The major changes could come in the Rules re Hear-
say Evidence, and of evidence of previous character and
convictions. With regard to hearsay, one of course can-
not allow the Courts to end up judging cases on gossip
or the like, but there could be a wide discretion allowed
to the Courts to allow evidence of statements made
in the absence of the accused, so long as the Court
could in its reasonable discretion decide that such state-
ments formed part of the
res gestae.
Judges and juries
must see obvious gaps in the State evidence, and while
an experienced Judge can have a good idea of the
reason for the omissions, a jury must be mystified, and
feel as if they are watching a censored film or the like.
May I digress at this point to make reference to the
latter-day phenomenon of television and press reporters
being apparently able to detect criminals and crime,
while the authorities remain impotent or powerless.
The simple fact is that these reporters are putting their
own self-interest before their public duty. They appear
willing to quote any type of shadowy individual or
statement purported to emanate from them, and then
put it across to the public as being actual fact. It is
high time this practice was stopped by making the
controllers of the various types of media liable for con-
tempt of Court for not making a full disclosure of all
information available to them which would lead to a
criminal being brought to justice. The public do not
realise that criminals (political or otherwise) relish pub-
licity, but will not be so forthcoming with information
when being questioned by the authorities. They get the
impression that the police are at best incompetent, and
at worst condoning the breaches of the law.
Evidence of previous character
With regard to evidence of previous character and
convictions, this is a question to be treated with great
care. If the State could put in such evidence, then it
might consider a lessening of the quantum of proof
necessary for such cases. It could afford an easier task
for a malicious person to indict and convict on false
evidence. On balance the present rule is the most equit-
able—if the accused invites an attack on his character
then he must stand the consequences. However, there
are potent arguments on the other side; the recent case
of the poisoner Young in England where he had a
serious prior history of poisoning. Also the writer has
often noticed a convicting jury remaining anxiously in
the jury box awaiting the comments and sentence of
the trial Judge, and having their anxiety and uneasiness
dispelled when the police officer reads out the list of
previous convictions.
The Rule of Silence
(2) The Rule of Silence : The proposed revision of
the Judges Rules in England to abolish the legal caution
is a just, fair and long-overdue amendment to the
Criminal Code. Again to quote eminent legal authority,
on this occasion Professor Glanville Williams, LL.D.,
F.B.A. : "Immunity from being questioned is a rule
from its nature can protect the guilty only." In his
excellent treatise "The Proof of Guilt" (The Hamlyn
Lectures, Seventh Series) Professor Glanville Williams
sets out the difference between the English Criminal
Code and the Code operated by countries on the Con-
tinent. Basically the English system is accusatorial; the
Continental systems are inquisitorial. On the Continent
a suspected person in essence must explain himself, and
do so at a very early stage of the proceedings. Here an
accused person can remain totally silent until every
scintilla of prosecution evidence is known to him, and
can then talk or remain totally silent. It can be said
that in the English code any semblance of a fair trial
commenced only from the passing of the Criminal
Evidence Act, 1898. Prior to that Statute a defendant
could not give evidence in h's own defence. Revision
became a necessity when counsel for the defence relied
on the ploy that their unfortunate innocent client would
immediately convince the jury of his innocence if only
the law allowed him to give evidence. In an attempt to
defeat this stratagem (before the passing of the Act)
some Judges allowed defendants to make an unsworn
statement from the dock, and not be cross-examined on
same. This compromise, of questionable merit, still sub-
sists in the legal code right to this day.
Abolition of Caution
So therefore while the State must discharge the bur-
den of proof, they must be given a fair run in their
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