Thursday, 11 September 2008

Innocent? or simply Not Guilty?

Consider the following definitions. As they say, the devil is in the detail, and as every Police officer, lawyer and Judge in the country knows, one does certainly not mean the other.

Not guilty - to be declared legally blameless of a crime.

Innocent - did not commit a crime of which they were accused.

The differences between those two terms, and the public perception that they mean exactly the same thing, has annoyed me from about a week into my Police career. As part of my training I went to get a feel for what a trial is like and see exactly what my part in it would be. I sat through two trials, because one ended considerably quicker than expected. The first case I sat through was a simple drink drive, a guy was arrested at around 3am having left a mates house where he had a few drinks and ate some pizza. After he left, the driver was heading through the quiet city streets with no headlights on when he was seen by a passing Police patrol and stopped. Funnily enough, he failed the roadside breath test and was arrested so that he could be taken to the station to provide an accurate sample to confirm the level of alcohol in his blood. The driver was just under three times the limit and was charged with driving whilst over the prescribed limit for alcohol, he was then bailed to attend court a month or so later.

When he appeared for his first hearing, the driver had elected to plead Not Guilty and so a date was set for trial in another couple of months. As I sat down in the public gallery, my training officer told me that the solicitors would go through some legalities with the judge and then the defendant would come up and the trial would begin. As the arresting officer was also the officer in the case (OIC) he was not in the court as the solicitors started to discuss the ins and outs. After a few minutes the defence solicitor raised some technical issues that they felt greatly undermined the prosecution case. It turned out that at some point between providing the sample (the machine was working correctly and the reading was accurate) and the charge, some administration errors were made on the drink drive form by the custody Sgt. The bench decided that because administration errors were made, any prosecution was deemed unsafe because of abuse of process. The defendant was called in, and then told that he was being found not guilty because of mistakes made by the Police and he was then released.

To many people outside of the criminal justice system, the simple fact that someone is declared Not Guilty following a trial means to them that the person did not commit the offence they were charged with. Does that mean that the defendant wasn't drink driving? That he was not found to be 3 times over the limit? That the Police made it all up and arrested a random and innocent man simply minding his own business? It was the fault of the Police officers dealing for making the admin error that allowed the driver to get away with drink driving; it was not because the driver did not commit the crime he was accused of.

With the exception of some jobs such as domestic violence cases or sexual/serious assaults, I stopped taking interest a long time ago in the outcome of the majority of my cases and the penalties imposed. This is mainly because seeing ridiculous sentences like someone get 20 hours community service (that they won't complete) for 50+ residential burglaries, can get a bit soul destroying, but equally as depressing is when you get a result like "Not guilty, no evidence offered". What this result means is that when the case went to trial, the CPS prosecutor decided for any number of reasons that they were unable to try the case. These reasons could be a witness not turning up or being hostile (as often happens in domestics), exhibits or the case file being lost, or occasionally an off the books plea bargain where they drop one job to get a guilty plea on another. Bear in mind that the decision to charge in the first place comes from a CPS prosecutor who reviews all the evidence and the case file in its entirety, so it's hardly ever because the evidence simply isn't there and they don't feel they can prosecute it.

I had a case a few years ago with a guy for multiple domestic violence incidents against his wife, with injuries ranging from common assault through to GBH. Because the guy only ever beat his wife when drunk and didn't care who saw it, all of the incidents were witnessed by several Police officers and nearly two dozen independent witnesses. He had been prosecuted for assault a number of times before, but because his wife had always refused to give evidence he was never convicted. I remember a distinct conversation with him in custody when he said that he'd been found innocent of the previous charges. My answer at the time was "you weren't found innocent, you were found not guilty, that doesn't mean you didn't do it, it just means they couldn't convict you of it"

The case took ages to put together, but eventually I had the guy remanded and got agreement from the head CPS prosecutor for the city to go ahead with prosecution despite the wife refusing to co-operate. Unfortunately no one told this to the prosecutor on the day of his first hearing (who invariably knows nothing about the cases they are to try until that morning when given their caseload) and as soon as they heard that the victim refused to attend court they offered no evidence and he was acquitted. I and nearly 30 people witnessed him beat his wife (to unconsciousness at one point) so there was no question that he did not commit the offences but having been acquitted and found not guilty he is presumed by many to be innocent.

Just as an aside, he beat her to death a few months later and was given a 10 year custodial sentence having pleaded guilty to manslaughter. To say this sad conclusion made me go even more ballistic than when I got the initial 'no evidence offered' email, is an understatement.

The concept of being innocent until proven guilty has been with us for the best part of a millennia, along with the rights of Habeas Corpus, or the right not to be detained by the state/crown without reason. These rights were enshrined in law because at the time people were locked up for no reason, because of their faith, malicious allegations, or because someone in authority wanted to prove they could do what they wanted. Before the introduction of forensic and scientific evidence, trials at the time centred on witness testimony and the most basic of evidence such as an item found in a place linked with the suspect. I have absolutely no doubt that there were a great many miscarriages of justice at the time, it is not hard to imagine a number of people getting together to provide malicious evidence against someone they didn't like and who could not provide an alibi.

In the present day the concept of innocent until proven guilty still stands, and recent miscarriages of justice (such as the Birmingham Six) or collapses followed by separate prosecution (Damilola Taylor) or simply collapsing because evidence is deemed inadmissible (Barry George) show that investigations are not perfect or impossible to manipulate. These types of incidents are extremely few and far between given the number of cases sent to court each year and certainly do not represent the norm. The fact though, that they still happen, seriously undermines the criminal justice system and the way that the Police are viewed by the public, especially our motivations to prosecute some people. As the venerable PC Bloggs put it in one of her posts, I couldn't give a toss about the vast majority of people I arrest, and even if I absolutely believe that someone deserves to be put away, I certainly don't care enough about them to risk my house, liberty and future by trying to stitch someone up.

In my capacity as a Police officer one of my main roles is to investigate people for suspected offences, then present the evidence to the court to allow a trial by a panel of magistrates or by a jury. Nearly all offences in criminal law contain the wording "a constable may arrest, without warrant, a person who they reasonably suspect is guilty of the offence" or words to that effect. In order to arrest we have to suspect that the person committed it, either by having witnessed it ourselves or by having 'viable' witnesses (i.e. who saw it and are willing to give a statement to that effect, or who can point out the offender who will have been witnessed by other means such as CCTV) so that they can be questioned in interview under caution about the matter.

Further to the belief established at the scene that a suspect is the person who committed the offence, each separate criminal offence has its own 'points to prove' which must all be hit for the offence to be complete, and thereby allow us to arrest and investigate. For example, the offence of Theft has six separate points to prove, each one having been analysed in great detail by previous trials to nail down exactly what it means. The wording is "a person is guilty of an offence if they - dishonestly (1) appropriate (2) property (3) belonging to another (4) with the intention (5) of permanently depriving (6) the other of it" During the subsequent investigation, if the points to prove have been not been hit, or if the suspect has a valid justification for any point, the offence has not been completed and the suspect cannot be charged.

This means that we simply cannot randomly select any number of passersby or someone who loosely fits a description as there not only has to be more to it, but we have to believe or at least suspect that the person did it. Once arrested there are a number of stops in place to make sure that detention is both legal and necessary. These include - presenting the evidence of arrest to a Custody Sgt who can authorise or refuse detention, having the evidence and detention reviewed at specific intervals by an Inspector, if detention goes on longer than 24 hours it must be authorised by a rank of at least Superintendant, after 36 hours detention can only be authorised by a magistrate who is told the evidence and reasons to continued detention, up to a maximum of 96 hours, again after periodic reviews. Once the investigation is complete, authorisation for charge has to be sought by the Crown Prosecution Service who will review all evidence and decide if the case is to go to court. Detention/further investigation can be refused at any point if someone at the appropriate level decides that there is insufficient evidence or justification to continue.

Following this, the probability of someone getting to court (let alone being convicted) is extremely slim if they are completely 'innocent' and have had absolutely no involvement in a crime.

There are occasions where someone's guilt must still be decided by a jury where they have shown an involvement in an incident that cannot be readily determined at the evidence gathering stage as to whether or not they are responsible for committing a crime. These include the use of statutory defences, such as an emergency responders use of road traffic exemptions, or self defence to justify force which results in injury or death. There have been cases such as the prosecution of Chelsea Bennett (stabbed another girl during a fight and successfully pleaded self defence) where the CPS decided to charge and leave the decision to a court. As with everything, the evidence of each case is viewed on its own merits and others such as Tony Singh (shopkeeper who fatally stabbed a robber) was not charged as the CPS decided that the evidence suggested self defence and there was no need for a trial.

No one can argue that public faith in the criminal justice system, or more specifically the Police, hasn't got progressively worse in recent years. I believe that a perceived inability to prosecute people successfully has contributed to this a great deal, along with a number of other reasons. Celebrity solicitors such as Nick 'Mr Loophole' Freeman argue that they are only doing the best they can by their clients, as they are obliged, by exploiting technical loopholes. The aim of an increasing number of trials seem to have moved from 'did he do it or not?' to 'can we show the Police made a mistake while investigating whether or not he did it' which further undermines the intention in establishing guilt or innocence.


PS. I know that was a particularly long post, but when people really don't get the difference between the two meanings, or completely miss the point for investigations, it bugs the crap out of me - especially on Sky News!!


Anonymous said...

"Not guilty - to be declared legally blameless of a crime."

"Innocent - did not commit a crime of which they were accused."

I agree with everything said above, but, I think there is a third definition to be considered:

Guilty - to be declared legally to have committed a crime.

This is not the same as the the statement that the person concerned had actually committed the crime. i.e. the statements "A was found guilty of murdering B" and "A murdered B" are not equivalent (although the second statement is one usually given in the media).

Metcountymounty said...

anon, agreed, however I think that by the time someone has got to court whether they have or have not actually done it has been established by the evidence at which point it is left to a jury to decide whether or not they believe it.

Some jurors will never convict because they hate the Police or sympathise/empathise with the suspect irrespective of the crime accused, likewise some will always convict because they hate criminals, other times they will let their conscience control the verdict based on possible sentences as used to happen with hanging.

The chances of someone being charged with an offence that they did not commit (albeit a possibly watered down version to make it easier for the CPS to prosecute such as reducing GBH to ABH) is tiny, if you go by the offence wording and the facts as established by the investigation.

Anonymous said...

good post MCM, no need to apologise for the length it makes for better reading.

Look forward to the next post.

Caroline said...

You write with great accuracy and detail - the passion born of frustration and I can understand why. I have had dealings with the police myself in a situation involving a death in my family and I saw the hoops that were jumped through, and all for a ridiculous sentence at the end.(and yes the solicitor had no idea of the case until that morning) I currently have an employee who has had her ex legally restrained, tagged and he has now been acquitted - last week he broke her fingers so she could not drive to work - she is leaving her job because of his harrassment - the police have done all they can and continue to do so - he has a good lawyer and a lifetime of twisting the system to fall back on - I know where you are coming from

Anonymous said...

The Great British Public long ago stopped believing a not guilty verdict. The only verdicts believed now are:
Got Away with It

Anonymous said...

Thanks to the Met for moving a group of drunk Poles away from my garden at 11pm last night. Much appreciated!

Blue Eyes said...

Mr MCM another excellent post. I would like to quote you on a post I am planning if I may. May I add one thing though: ordinary people with no "legal" knowledge often confuse things which are - in their eyes - wrong with things which are criminal offences. There is great confusion as to what is "wrong", "illegal" and "criminal". The law has always been complex, but seems unnecessarily so in recent times. The law seems to have moved well away from what you might call its "moral" basis.

Metcountymounty said...

blue eyes - crack on, I don't mind people quoting anything I've put as long as they don't make any money out of it without kicking some back to me!!

Blue Eyes said...

Nice thought, any ideas on how to turn a blog post into cold hard cash? I'll buy you a pint how about that? :-)

Anonymous said...

Very interesting and well put together. That's the clearest explanation of the definitions I have seen.

Tony F

Anonymous said...

A thought provoking post MCM.

This got me thinking about what is stated in medical records, which are generally regarded as "the word of God", which of course they are not. However, Doctors and particularly shrinks, appear to have an unquestioned "authority" to sit in judgement and pass comment upon people, often without the full facts before them. Their letters are kept forever in a person's medical records and treated as undisputed fact, which can often be a dangerous and damaging mistake.

Negative and misleading comments in these records can totally ruin a persons life, as the information DOES get leaked out into communities, particularly in rural areas; and the subject of the negative and misleading comments is most certainly judged to be "guilty", without so much as a proper investigation, never mind a charge or an appearance in court. Vigilantism then rears its ugly head, and people do get hurt.

Trying to challenge a GP or a Consultant about misinformation or mistakes in records is a total nightmare. They regard medical records as "their property" and legal documents which cannot be altered. Challenging them through a solicitor is expensive and stressful. The Doctors get defensive and sometimes rather arrogant and obnoxious, issuing threats that if one is going to be "difficult" they will remove one from their list!

Any assertiveness can find one without a GP and further negative and often insulting comments being added to the records. These are then sent to the local health board and are read by complete strangers. More gossip can leak out into the community, to add to the misinformation which has been passed between health and social care professionals already! [and the local community]

It is straight out of Alice in Wonderland. Innocent people being subjected to smears upon their character and wild accusations which are nothing more than complete nonsense.

But where it gets really dangerous, is the "sharing" of information from the various "partner agencies" with police officers. They also take the nonsense to be the "word of God" and form a negative opinion of a person they do not even know.

What also strikes me as highly dangerous to the public best interest, is the recent development of police officers doing a "psychological assessment" on someone, based upon textbook guidance and ticking boxes. They can make an UNQUALIFIED decision to tick a "mental case" box, and dissmiss a victim, or "silence" him or her, with that outrageous abuse of power which is known as "section 136" of the Mental Health Act.

How Alice in Wonderland is that!!!
It is absolutely barking mad.

Like a lot of the legislation that NuLab have brought in, it is open to an abuse of power. They appear to have tied the police up in red tape, to prevent this happening in other areas regarding crime. However, the mistake that was made by government, was in giving far too much authority and legal powers to the other "partner agencies", who most certainly HAVE abused those powers. What a mess.

ER Indoors

Anonymous said...

About Juries and seemingly bizarre verdicts.
I did jury service a few years ago and the first case completely astounded us. The prosecution made such a horlicks of presenting to us their charge and evidence we simply couldn't believe they (the CPS) expected anyone to believe what they said. It took us about 10 minutes flat to come to a Not Guilty verdict.
HOWEVER, after going back into court and the Foreman doing his thing we were told to remain seated while the Judge sentenced the lads in the dock? Sentencing? - we were baffled, they were Not Guilty. Then it all became clear. They had been charged with 2 offences and had pleaded Guilty to 1 but not the other. We, the Jury, weren't allowed to know this. When the gist of the other charge came to light with his Honour's speech prior to sentence, all the nonsense we had been fed suddenly made sense and might have given us pause for thought about Not Guilty. I expect the policeman in charge of the case went away muttering about "stupid jurors".
And on Juries in general, I have sat on 3 and my findings are that a typical jury is made up of 3 idiots who would have difficulty deciding which way was up, half a dozen reasonable folk who can be swayed by argument and are prepared to listen to reason and 3 a bit above average who can guide the rest to sensible conclusions.
Oh, and just popping back to the case I mentioned, when it became obvious deliberation was going to be brief and we were ready to summon the bailiff to take us back into court with the verdict, one of our idiot jurors wanted us to spin it out until after 1 pm so we wouldn't be sent home and miss out on our lunch allowance! On such people guilt or innocence could revolve!

Metcountymounty said...

anon 2300 - My brother in law did his jury service a couple of weeks ago and someone did the same thing about their lunch allowance. I've been in court and seen a whole jury shake their heads in disbelief when the judge dismissed a charged on a pure technicality against an obviously violent and nasty slag, so there is still some hope!!

Whichendbites said...

That was very good........very long but very good. I feel like I need a sit down and you must have felt the same. Keep up the good work.

Metcountymounty said...

cheers WEB, and yes I did!!