The Gazette 1972

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 (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 - 2 3 6 previous convictions. The Rule of Silence

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