Tag Archives: Justice

PETER HITCHENS ON LIBERTY, JUSTICE AND THE DECLINE OF THE JURY – AND THE PRESUMPTION OF INNOCENCE

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https://hitchensblog.mailonsunday.co.uk/2020/04/i-used-to-think-juries-were-a-safeguard-for-liberty-and-justice-now-i-am-not-so-sure.html

Am I going to have to fall out of love with juries? For decades I have defended these curious committees, which can ruin a man’s life in an afternoon. It has been a romance as much as it has been a reasoned position. Most people get their best lesson in jury trials from the 1957 movie Twelve Angry Men. In that version, a single determined juror, played by Henry Fonda, gradually wins the rest of the panel round to an acquittal, at great cost in emotion and patience. But what really won my heart was Thomas Macaulay’s account of the Trial of the Seven Bishops, in which a London jury defied the wishes of the would-be autocrat King James II in 1688. It was an astonishing event, a monarch’s authority challenged by—of all unlikely things—a collection of Anglican prelates. Their acquittal, perhaps more than anything else, led to James’s fall a few months later. It was the beginning of true constitutional monarchy in Europe, the genesis of the English Bill of Rights and the forerunner of the very similar American document of the same name. It could not have happened without a jury.  

For without a jury, any trial is simply a process by which the state reassures itself that it has got the right man. A group of state employees, none of them especially distinguished, are asked to confirm the views of other state employees. With a jury, the government cannot know the outcome and must prove its case. And so the faint, phantasmal ideal of the presumption of innocence takes on actual flesh and bones and stands in the path of power. Juries grew up in England almost entirely by happy accident, and no government would nowadays willingly create them where they do not already operate. A brief fashion for them in 19th-century Europe was swiftly stamped out by governments that understood all too well how much they limited their power. I believe the last true Continental juries, sitting in the absence of a judge, were abolished in France in 1940 by the German occupation authorities. People in Anglosphere countries, unaware that true independent juries rarely exist outside the English-speaking world, have no idea what a precious possession they are. 

I remember actually pounding the arm of my chair with delight as I read Macaulay’s account of the response of the bishops’ attorney, Francis Pemberton, when threatened by the chief Crown prosecutor, the solicitor general: “Record what you will. I am not afraid of you, Mister Solicitor!” So this was England after all, and even the majesty of the Stuart Crown could not overawe the defense. This was wholly thanks to the fact that the trial took place before a jury—which duly acquitted the bishops of “seditious libel,” the ludicrous charge by which James had hoped to crush opposition to his plans to reverse the Reformation. Without a jury, the king would of course have won his case, and England would have gone down the road to absolutism (already followed in France, Prussia, Russia, and the Habsburg dominions) with incalculable consequences for the whole world. Instead we had what came to be called the Glorious (or Bloodless) Revolution.  

And my blood still runs faster when I recall this and other moments at which the mere existence of juries has made us all more free. Yet I also have terrible doubts. Is the independence of juries possible in the modern world, in which the English Bill of Rights is all but forgotten and a new dispensation reigns? All too often, I read reports of trials in my own country that fill me with doubt. I did my fair share of court reporting as an apprentice journalist many years ago, and I have a good understanding of how these things used to work and ought to work.

Something has changed. There is a worrying number of sex cases now coming before the courts in which clear forensic proof of guilt is often unobtainable. 

The alleged crimes themselves are repulsive, and the mere accusation is enough to nurture prejudice. The defendants have often been arrested in the scorching light of total publicity, in spectacular dawn raids totally unjustified by any immediate danger they present. Pre-trial media reporting has further undermined the presumption of innocence. In England there is still officially a strong rule against the media taking sides before the jury delivers its verdict. But this is not enforced as it once was. The prosecutions are frequently as emotional as they are unforensic, the opposite of the proper arrangement. Yet the defendants are often convicted even so (sometimes by majority verdicts, which in my view violate the whole jury principle). The state seems somehow to have turned the jury—often swayed by emotion—into its own weapon. And it is worse than the alternative. A wrongfully-convicted defendant, pronounced culpable by a jury of his peers, must feel a far deeper despair than one cast into prison by a mere panel of judges. 

I had been concerned about this for some time. I knew that, since the introduction of majority verdicts in 1966, and the abolition of the old property qualification in 1974, English juries had not been what they were. Majority verdicts effectively made impossible the stand by the Henry Fonda character in Twelve Angry Men. The judge would simply have accepted the guilty verdict of the majority. The property qualification—which required jurors to be householders—tended to ensure that they were older and more experienced. But it also meant they were mostly male, and mostly well-off, and it is easy to see why it was removed. The problem was that it was replaced by nothing at all. Nobody, it seemed, could devise an educational or age qualification that did not violate some principle of the new egalitarianism. This means that anyone on the voters’ roll may now be a juryperson, and your whole future could in theory be decided by a room full of 18-year-olds who have never worked, paid taxes, been abroad, broken a bone, or raised a child. I do not find this reassuring. 

In 1907, when the English Court of Criminal Appeal was first set up, there were warnings that it would undermine the authority of the jury, since it could overturn a guilty verdict (though not an acquittal). And it is easy to see why some defenders of juries were worried. A principle can be undermined from more than one direction. But as it happened, the danger to juries came from a different source—from the increasing egalitarianism of society itself, and the resulting politicization of so many trials. Judges became less elitist and more political, as did prosecutors. The sexual revolution created a whole new class of crimes, and created a whole new set of procedures to try them. It granted anonymity to accusers, a change that met with surprisingly weak opposition. 

I did not really understand the force of this until I found myself unexpectedly defending the long-dead Bishop George Bell against ancient charges of child sex abuse. Bishop Bell could not be tried because he was deceased. But the Church of England’s treatment of his case very much reflected the new arrangements. He was more or less presumed guilty. His unnamed accuser was designated a victim and a “survivor,” not an alleged victim, before any inquiry began. The procedure that adjudged him guilty, in private, did not follow the presumption of innocence and made no serious effort to discover if there was a defense (there was). I found to my shock that an inaccurate claim—that he would have been arrested if alive—persuaded many apparently fair-minded, educated, and intelligent people of his guilt, though an arrest is evidence of nothing at all. Thanks to some truly dedicated and determined work by many selfless people, and some very good legal work as well, the thing was more or less set right. But a grudging Church of England has yet to make full restitution. 

So when I saw the case in Australia against Cardinal George Pell, it was not just the similar name that aroused my interest. I knew from a recent visit to Sydney that Australia had undergone an anti-religious revolution. I knew very well how powerful allegations of child abuse had been in weakening the Church. My instincts were to believe that George Pell, who behaved like an innocent man, had been wrongly accused. But what if this was just bias? I sought to keep an open mind. I would presume the cardinal was innocent, but would not let my Christian sympathy close my mind to serious evidence against him. I had taken the same view in the Bell case. I resolved at the beginning never to be afraid of the truth. If the evidence against George Bell was convincing beyond reasonable doubt, then I would have to change my view of a man whose brave and selfless actions I had much admired. I would have to accept that the world was a bleaker, worse place than even I had feared. I knew well enough that there were pedophile priests. The same had to apply to Cardinal Pell. 

And then a strange silence fell over the trial. I know that there were valid legal reasons for this silence, but it still seems to me that some way should have been found for a case of such moment to be heard openly and reported openly, while it was going on. When Pell was convicted, I felt I had to accept the verdict because I was in no position to dispute it, and had not heard what the jury had heard. But the whole sky darkened at the news. If such a man was guilty of such a filthy thing, and a jury had agreed upon this after a fair trial, then the forces of goodness were in rapid and frightening retreat.   

And then, amid the dismal suppression of freedom and the economic lunacy now gripping the world, came a sudden shaft of light. The High Court of Australia overturned the verdict and freed Cardinal Pell. And then I read what they had said. It was startling and disturbing, not because there was any ambiguity in it, but because of something else. A court statement declared, 

The High Court found that the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted, and ordered that the convictions be quashed and that verdicts of acquittal be entered in their place.

 The judges ruled: 

On the assumption that the jury had assessed the complainant’s evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant’s guilt in relation to the offences involved in both alleged incidents. 

This seems to me to be a very polite way of suggesting that the jury did not entertain that reasonable doubt. I may be very grateful that the High Court took this view, because it seems to me that justice was done when George Pell was freed. But will there always be such High Courts, and will most people be able to reach them? In this egalitarian world, in which a series of inglorious revolutions has wholly changed the nature of justice, I am not sure that the old English jury is much of a defense anymore. And I cannot begin to say how sad this makes me.

Peter Hitchens is a columnist for the Mail on Sunday.

“CARDINAL PELL: NATURAL AND INALIENABLE RIGHTS” – ‘Philosophical Investigations’ – April 20 2020

 

“The legal cases of Cardinal George Pell and Bishop George Bell are very different, but there are parallels which cannot be ignored – such as the critical importance of Presumption of Innocence in the endless quest for justice and fairness”

~ Richard W. Symonds

 

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http://www.philosophical-investigations.org/2020/04/cardinal-pell-natural-and-inalienable.html

Monday, 20 April 2020

Cardinal Pell: Natural and Inalienable Rights

by Richard W. Symonds

The Church of St Cyriac, Lacock, by GB_1984

The principle of the presumption of innocence is of extreme importance, and the case of Cardinal George Pell has implications for the respect for—and security of—this principle.That one is considered innocent until proven guilty is a vital pre-condition for our survival and well-being within a civilised society. Undermining such jurisprudence can lead to catastrophic miscarriages of justice which ultimately threaten our humanity—in fact, yours and mine.

The accused is not required to defend or prove their innocence—it is for the accuser to prove guilt—beyond reasonable doubt. It is one of the foundational legal principles—a bedrock of our civilisation: ‘The burden of proof is on the one who declares, not on one who denies’. Or Ei incumbit probatio qui dicit, non qui negat in the ancient Latin.

Presumption of innocence is a legal right of the accused in a criminal trial, and an international human right embodied under Article 11 of the UN Universal Declaration of Human Rights.

A just law must be a fair law, which punishes the guilty, not the innocent. Presumption of innocence is an immunity against unjust accusations.

In the case of Cardinal George Pell, a disturbing and dislocating miscarriage of justice has been exposed within Australia’s justice system—and presumption of innocence was almost lethally compromised and undermined.

A basic history of events—a timelined chronology if you will—would help:

• July 16 1996 — Bishop George Pell is appointed Archbishop of Melbourne. A former choirboy later testifies that the bishop molested him and his friend—both aged 13—in the vestry of St. Patrick’s Cathedral in Melbourne that year, after Mass.
• March 26 2001 — Archbishop Pell becomes Archbishop of Sydney.
• October 21 2003 — Pope John Paul II makes Archbishop Pell a Cardinal.
• February 25 2014 — Pope Francis appoints Cardinal Pell as his Finance Minister — Prefect of the Secretariat for the Economy.
• April 8 2014 — One of the choirboys dies aged 31, of a heroin overdose, without alleging the molestation by Pell, in fact telling his mother he had not been abused by Pell.
• August 5 2014 — Victoria police establish a task force to investigate how religious and other non-government organizations [NGO’s] deal with abuse accusations.
• June 18 2015 — The surviving choirboy gives his first statement to the police, claiming sexual abuse by Cardinal Pell.
• December 23 2015 — The Victoria Police task force appeals publicly for information relating to allegations of sexual abuse while Cardinal George Pell was Archbishop fo Melbourne.
• March 1 2016 — Cardinal Pell testifies by video link from Rome, to the Australian child abuse inquiry. Pell is critical on how the Church has dealt with paedophile priests in the past, but *denies he had been aware of the extent of the problem.
• October 19 2016 — Victoria police go to Rome to question Cardinal Pell, who hears details of the choirboy’s abuse allegations against him for the first time.
• June 29 2017 — Police charge Cardinal Pell with multiple counts of historical sexual abuse. This makes him the most senior Catholic cleric to be charged in the Church’s abuse crisis. Pell denies the accusations and takes leave of absence from the Vatican to return to Australia to defend himself.
• July 26 2017 — Cardinal Pell makes his first court appearance on charges that he sexually abused multiple children in Victoria decades earlier. Details of the allegations are not made public. Pell vows to fight the allegations.
• May 1 2018 — A Magistrate commits Cardinal Pell to stand trial. He pleads not guilty to all charges.
• May 2 2018 — A Judge separates the charges into two trials; the first dating to his tenure as Archbishop of Melbourne, and the other when he was a young priest in Ballarat during the 1970’s.
• December 11 2018 — The jury unanimously convicts Cardinal Pell on all charges in the Melbourne case.
• February 26 2019 — A suppression order forbidding publication of any details about the trial is lifted. Prosecutors abandon trial on the Ballarat charges.
• March 13 2019 — The judge sentences Cardinal Pell to six years in prison, on five sex abuse convictions, in which he must serve 3 years and 8 months before he is eligible for parole.
• August 21 2019 — Victoria Court of Appeal rules 2–1 to uphold the convictions, but there is ‘stinging dissent’ by that Court’s leading criminal law expert.
• The High Court, Australia’s top court, in an unusual procedural move, agrees to hear Cardinal Pell’s leave to appeal, and his actual substantive appeal, concurrently.
• April 7 2020 — All seven judges of the High Court of the Australian Court of Appeal quash the conviction of Cardinal George Pell. In a volte-face, they unanimously agree the appeal has succeeded, dismiss all convictions, and release Cardinal Pell immediately—after he spent 13 months in high-security prisons. 

In overturning the jury’s decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted’.There was ‘a significant possibility that an innocent person has been convicted, because the evidence did not establish guilt to the requisite standard of proof’. The High Court referred to what it called ‘the unchallenged evidence of the opportunity witnesses’ at the 2018 trial, which suggested there was cause for doubt.

This case has attracted world-wide attention for good reason.

What lies at the heart of our justice system is Lord Sankey’s ‘golden thread’ which runs through criminal and common law: Guilt must be proved by the accuser’s prosecution beyond any reasonable doubt. This undoubtedly did not take place in before the High Court judges intervened this April 2020 to make just the injustice.

It is better many guilty go free rather than one innocent is wrongly convicted and jailed for a crime they did not commit.

The Cardinal is entitled to be presumed innocent because that is what the Presumption of Innocence is all about—innocent until proven guilty.

Beware the spirit of the age. Alan Ryan, a professor of politics at Princeton University, sounded the alert thirty-two years ago: ‘Natural and inalienable rights to life, liberty and the pursuit of happiness have fallen into disrepute, along with a faith in reason and reason’s dictates.’

 

COMMENTS

 

Keith said…
The essay focuses on the underlying legal principle of the ‘presumption of innocence’. Fair enough; that’s a just guiding rule; and my understanding is that the Australian legal system abides by that.

However, in looking down the chronology, as an impartial reader with no dog in the fight I see nothing that explicitly proves that the presumption of innocence was denied the defendant when the jury arrived at its verdict in December 2018.

Without categorical evidence to the contrary, I have to assume the empanelled jurors — a ‘jury of one’s peers’, as they say, with preemptory strikes by both sides — went into the trial and into their deliberations honoring the defendant’s presumed innocence.

Likewise regarding the presumption of innocence by the appeals court that apparently upheld the verdict, by a split decision, in August 2019.

I have no opinion whether the defendant was or was not guilty; that’s not appropriate for me to weigh in on, particularly given the dearth of evidence here. I defer to Australia’s legal system.

But, again, what’s important is I see nothing in either the chronology or surrounding narrative that supports the charge that, as the post says, ‘the presumption of innocence was almost lethally compromised and undermined’. The material proof of that assertion is omitted.

 

 

“In overturning the jury’s decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted’”

The Hight Court judges ruled that “the jury ‘ought to have entertained a doubt as to the applicant’s guilt”.

That means the jury “entertained” a Presumption of Guilt, which is why I assert “the presumption of innocence was almost lethally compromised and undermined”.

Martin Cohen said…I think the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall. In particular, witness evidence is even more prone to confused recollections than shortly after the event, while someone who is accused will have great difficulty defending themselves with regard to what “they did” when (if innocent) they can hardly be expected to remember much. Ironically, a guilty person has much more reason to remember events and be able to produce a coherent but false narrative…20 April 2020 at 13:24

Richard W. Symonds said…

Indeed, “the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall…”. And now there is a fresh abuse allegation against Cardinal Pell which has come just after his acquittal – alleged to have taken place over 40 years ago “back in the 1970s”.

20 April 2020 at 14:51  

 

In our complex societies, we ‘prioritise the principles of social life’, as Yves Simon put it. Together with procedures which support those principles, this removes passions and prejudices as the basis for the system — rather artificially, one might add.

I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does, and it has been proved. See The Australian, ‘Cardinal George Pell convicted for a lacklustre display of empathy,’ by Angela Shanahan. Which is not to say that all charges are false, including those where there is acquittal.

This past week, my neighbour was taken from his home and jailed. When we checked, the police had failed to follow Standard Operating Procedure. For instance, they failed to ask him for a statement, and it looks as though there wasn’t a valid statement against him. Here is an example of what happens where passions and prejudices are allowed any room.

20 April 2020 at 16:50

Richard W. Symonds said…

“I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does…”

Yes, indeed it does. In the case of the Southampton football manager Dave Jones, falsely accused of abusing his children [recounted in his autobiography ‘No Smoke, No Fire’ – 2009], the police were forced to ‘trawl’ in prisons to find inmates to come forward to back up the accuser’s story. The presiding judge – Judge David Clarke – concluded: “No doubt there will be people who are going to think there is no smoke without fire. I can do nothing about that except to say such an attitude would be wrong”

20 April 2020 at 18:55 

 

 

March 28 2018 – “Assuming guilt” – Daily Telegraph – Letter – Colin Bullen of Tonbridge

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“Assuming guilt”

SIR – The proposition put forward by a parish officer that the maxim of “innocent until proven guilty” should be reversed in matters of church safeguarding (Letters, March 27) is utterly pernicious.

How is anyone to defend themselves against charges to an action that is alleged to have occurred decades before, and is based on no more than the word of one person?

To place the onus of proving innocence on the accused, as opposed to the need for the accuser to prove guilt, is contrary to our most basic freedoms and undermines the rule of law.

Colin Bullen

Tonbridge, Kent

March 22 2018 – An Archbishop on Justice and Presumption of Guilt – Rumpole on Justice and Presumption of Innocence

March 22 2018 – IICSA Transcript – Wednesday March 21

Archbishop Justin Welby

Page 119-120 [Paras 21-25]

and at the heart of this has to be justice, and justice is a very, very difficult thing to find, as you know much better than I do, but we have to have a system that delivers justice. That is so important. And if it doesn’t, it’s not good enough.

Fiona Scolding QC

Page 123 [Paras 14-25] Page 124 [Paras 1-8]

One of the points that Lord Carlile makes is that the church didn’t take a good enough account of…George Bell’s reputation. Now, we have heard from several individuals about their views about that. But what he seems to suggest is, you have to start — you know, this was such a Titanic figure that one must assume that his reputation is unblemished and, therefore, that has to be weighed very heavily in the balance. Do you have any response to that?

Archbishop Justin Welby

I think the greatest tragedy of all these cases is that people have trusted, very often, those who were locally, in diocesan terms, or nationally Titanic figures, and have then found that they were not worthy of their trust. The fact that someone is a titanic figure doesn’t tell you anything at all, except that they have done remarkable things in one area. It doesn’t tell you about the rest of their lives. And it is not something that we can take into account.

March 22 2018 – From The Archives [1988 – “Rumpole of the Bailey” with Leo McKern – Episode: ‘Rumpole and the Age of Miracles’ [Series 5 Disc 2) – Filmed on location at Chichester Cathedral [‘The Diocese of Lawnchester’ – Ecclesiastical Court]

Rumpole: “I happen to have a good deal of faith”

Ballard: “Yes, in what precisely?”

Rumpole: “The health-giving properties of Claret. The presumption of innocence…that golden thread running through British justice”

December 20 2017 – A Call for the Archbishop of Canterbury to “carefully consider his position” – Letter Submission – The Guardian – Richard W. Symonds [The Bell Society] – Dec 18 2017

Dear Editor

So, a representative of the current Archbishop of Canterbury Justin Welby says: “the independent review of the (Bishop) Ball case spoke for itself” (‘Carey lambasts Welby over church sexual abuse case’, Guardian. Dec 18).

As a result, a former Archbishop George Carey was forced to resign after the current Archbishop requested he should “carefully consider his position”.

An independent review of the Bishop Bell case also spoke for itself last week, through Lord Alex Carlile QC, severely criticising the Church for destroying the reputation of the respected wartime Bishop of Chichester.

Perhaps the current Archbishop himself should now “carefully consider his position”, after failing to apologise for the Church’s unjust trashing of Bishop Bell’s reputation.

Yours sincerely

Richard W. Symonds
The Bell Society

2 Lychgate Cottages
Ifield Street, Ifield Village
Crawley, West Sussex RH11 0NN

Tel: 07540 309592 (Text only – Very deaf)
Email: richardsy5@aol.com

URGENT NEWS UPDATE – TODAY – DECEMBER 20 2017

https://richardwsymonds.wordpress.com/2017/12/20/december-20-2017-why-the-churchs-response-to-the-george-bell-inquiry-is-so-shocking-the-very-revd-professor-martyn-percy-dean-of-christ-church-oxford/

http://archbishopcranmer.com/long-dead-archbishop-justin-welby-accused-child-abuse/

 

December 1 2017 – “Justice” – Joanna Bogle

http://joannabogle.blogspot.co.uk/2017/12/justice.html

FRIDAY, DECEMBER 01, 2017

JUSTICE…

…and the reputation of a good man.

Read about Bishop George Bell here, and then sign this petition here