The guilty-if-accused school of jurisprudence

George Pell at court: an overdue victory for the rule of law

Detention without trial, guilt without proof

It is shocking, writes Dalrymple, that the case against Cardinal Pell was seriously investigated in the absence of evidence, and even more shocking that it was brought to trial and ended in conviction. Of course,

it is terrible for someone who has suffered abuse to not be believed. But it is also terrible for an innocent man to be wrongly accused, even if he is eventually exonerated. It is part of the unavoidable tragic dimension of life that both are possible: not for nothing is the prohibition of bearing false witness one of the Ten Commandments.

He warns of the danger of surrendering legal administration

to the political and emotional pressure of those who believe that certain categories of crime are so heinous that normal safeguards against false conviction must be abrogated. Better that ninety-nine innocent men be convicted than one guilty man be acquitted, especially when he already belongs to a category of persons whom one dislikes.

No one is guilty merely because he is accused

Dalrymple notes that campuses,

with their censorship and de-platforming, have demonstrated how shallow is the commitment of some people to the notion of freedom of speech and thought. Likewise, the Pell case has illustrated how shallowly implanted is the commitment of some people to the principle that a man is innocent until proved guilty, once moral enthusiasm for a cause takes over.

This,

be it remembered, takes place in polities in which the principles of freedom of speech and the rule of law are supposed to be deeply rooted. Things are often more fragile than one supposes, including the commitment to basic rights of the accused.

Associations in defence of victims of abuse are said to have been angered by the overturning of the Cardinal’s conviction. Dalrymple asks:

Would they prefer detention without trial, and guilt without proof? Perhaps if it were under their direction.

There are fears for the safety of the Cardinal,

so certain are his calumniators of the rectitude of their outrage.

Blackmailers’ charter

Political corrector: Alison Saunders

They answered and said unto him, If he were not a malefactor, we would not have delivered him up unto thee. (John 18:30)

A growing threat to the rule of law

The Director of Public Prosecutions, the top public prosecutor for England and Wales, wants a man accused of forced sexual assault to be required to prove to police that his indicter assented to coition.

This, Dalrymple explains,

reverses the onus of proof for the first time from the prosecution to the defence. The man is to be presumed guilty until proved innocent rather than the other way round.

Suppose, says Dalrymple,

the DPP had suggested that, henceforth, muggers or any other class of criminal had to prove that they did not mug their accuser: what an outcry there would be — and justifiably so — from the habitual defenders of human rights. But the response from those quarters has been muted, to say the least.

It seems that while human rights

are universal, some people have fewer such rights than others, among them those people acquitted of racist murder or accused of rape.

Dalrymple drives home the important point:

The very worst criminal has the right to a defence, no less than the sainted innocent, and the basis on which he must be found guilty, beyond reasonable doubt, holds for him too. This is a basic protection of our law.

The law as practised by Freisler and Vyshinsky

It is alarming to think, writes Dalrymple, that a substantial lobby in Britain believes in their kind of jurisprudence

The sentences given to rapists are ludicrously inadequate

The vast majority of crimes are susceptible to explanation or understanding, and punishment is very often unjustified, morally or practically. Leniency and pity are called for, and we must support every conceivable protection for the accused. It would be outrageous, for instance, if a released murderer were refused access to the airwaves or permission to publish a book on the grounds that he was a murderer.

However, there is one crime that is of special heinousness, deserving only the most condign punishment. It is a crime that must, for moral reasons, be treated with exemplary severity and unparalleled harshness.

That crime is rape.

The sentences given to rapists are ludicrously inadequate, and a different standard of proof is necessary to secure conviction of the accused. The presumption of innocence ought in this case to be abandoned or at least diluted; and because in this crime there can be no smoke without fire, it is distressing that so many cases end in acquittal. After all, rape is a more serious offence than murder, and people accused of rape are almost always guilty even if found innocent.

In the case of rape, it is safest always to adhere to the jurisprudential principle guilty because charged.

Presumption of guilt

The no-smoke-without-fire argument is

primitive jurisprudence, returning us to the Middle Ages.

In murder trials, Dalrymple has often been ‘frustrated’ by

the inability to introduce evidence that the accused is a nasty, violent man, precisely of the kind to commit the offence.

But

the man in the dock is accused of specific acts, not of being a bad man in general of the kind whom we all love to hate. It is, therefore, right that he should be protected against the introduction of prejudicial information (or unsubstantiated rumour).

Moreover,

Increased severity of punishment of wrongdoers cannot be used to atone or make up for past unjustified leniency.

The rule of law

does not come naturally to the human mind, and we are all susceptible to abandon it when our passions are engaged. Burning witches at stakes is much more natural.