Thursday, 19 March 2009

Beyond reasonable doubt , 27 years on

In 1982 a man called Hodgson was convicted of murder. He confessed to killing a woman in 1979 when arrested but pleaded "not guilty" at trial and claimed he was prone to telling lies. DNA tests were science fiction at the time, but blood tests were not and his blood type matched that of the likely murderer. A jury of twelve ordinary people convicted him. In 1983 he appealed against his conviction, relying on technical legal arguments about the conduct of the trial. That appeal failed and he spent twenty seven years in prison. The 18th of March 2009 will probably be the happiest day of his life because his conviction was overturned by the Court of Appeal. It was overturned for one reason and one reason only, DNA tests carried out on the physical evidence collected thirty one years before proved that he was not the killer.

The only argument against capital punishment that I have ever found persuasive is that mistakes can be made, even where the state of knowledge at the date of trial admits of no doubt. The other arguments against the death penalty are that it is disproportionately harsh under any circumstances and that it is State-sanctioned murder that is no different from any other murder.

The first argument falls, in my view, when people such as Mussolini and Ceausescu come to be considered. Their executions healed their countries. The evil they perpetrated in ordering campaigns of mass murder created social divisions which dissolved on the very public extinction of the lives of the main perpetrators. Of course they are extreme examples, but the argument I challenge is that capital punishment cannot be allowed because it is always out of proportion to the crime. In such examples I do not believe it is, so the argument of principle must fall.

The second argument simply doesn't get off the starting-blocks. If execution following trial is to be equated to murder then imprisonment following trial must be equated to kidnapping, the imposition of a fine must be equated to theft and a community service penalty must amount to slavery. It's all a complete nonsense because it conflates penalties imposed by society collectively for breaching the most fundamental standards of that society with the standards themselves. Yet they are different things.

No doubt the case of Mr Hodgson will be used by some as a stick to beat the police. They will be entirely wrong. There is no serious suggestion that the police misbehaved in any way. Mr Hodgson had admitted the murder to others before he was even arrested. Sadly, he is one of life's unfortunates who does such things for reasons the rest of us cannot really understand. Even such people know whether they actually did what they admitted. From time to time a case arises in which they are able to find substantive evidence to support that underlying knowledge so that they get a second chance. For Mr Hodgson that chance comes at fifty-seven years of age and after spending almost half his life behind bars.

Mr Hodgson was convicted of murder because the evidence presented at his trial in 1982 satisfied a jury of twelve random citizens of his guilt beyond reasonable doubt. There is no reason to think the jury took the matter lightly. In my few years of work in the criminal courts before I concentrated my career on my abiding love of the law of contract, I appeared in only one murder trial. My client had admitted the offence in a taped interview with his experienced and highly competent solicitor sitting next to him. He pleaded "not guilty" when the case got to the Old Bailey for trial and gave hopelessly weak evidence seeking to extract himself from the overwhelming force of the evidence against him. His position really was utterly hopeless, yet the jury took hours to return a guilty verdict. They had to consider his evidence and discuss whether there might be something to his excuses. They were not wrong to take time because they, and they alone, had to decide whether a young man should be found guilty of a crime that carried a mandatory life sentence. That is a serious responsibility, exactly the same responsibility that was borne by the jury at Mr Hodgson's trial.

"Beyond reasonable doubt" can only ever mean "beyond reasonable doubt according to what we know today". In 1982 DNA was a twinkle in the eye of a Petri dish, today it is the first point of reference in many cases of sexual and/or physical assault. In ten years time we can be pretty sure that current forensic science will look like examining sheep's entrails to find proof of tomorrow's weather. Things always move on. The test for a jury in a criminal case remains the same, it is whether they are satisfied beyond reasonable doubt of the guilt of the defendant. The elements that can cause or dispel doubt do change, hence the long-overdue acquittal of Mr Hodgson.

Had he wiggled his feet beneath a hangman's noose the reversal of this particular miscarriage of justice would have been an empty gesture.


The Great Simpleton said...

Had he wriggled his feet beneath a hangman's noose it is unlikely that the eveidence would have been re-examined. It wasn't until he wrote to a solictor and persuaded them to take up his case that anything happened.

Anonymous said...

Hodgson's barrister at his first trial appeared on the radio the other day. He said that the evidence against his client had been overwhelming. When the FSS was asked for DNA evidence when this was first possible some ten years ago, they said no materials had been retained (falsely). So it's hard to see how this miscarriage could possibly have been avoided. It seems to me that it would be very hard to avoid executing the innocent on occasion if we still had the death penalty, unless it was applied very sparingly.