There’s Always One

The benefit of the doubt (or if you prefer, the presumption of innocence) is one of the longest established principles in the common law.

At it’s most blunt, the principle is expressed in Blackstone’s formulation: “better that ten guilty persons escape than that one innocent suffer”.

Populist cheerleaders for tough policing often focus on those ten guilty persons. Listening to some commentators, one might imagine offenders walking free every day, the judges having wished them well on their travels.

The truth, as anyone who has spent time in the courts can tell you, is quite the opposite. The majority of criminal prosecutions result in convictions.

Too few people think about the other side of Blackstone, the one innocent. I think of it as the McBrearty test. How would the McBrearty family have fared under a given police power?

Take the new Criminal Justice (Amendment) bill. This legislation will enable a garda of any rank with the appropriate expertise to give opinion evidence against a suspected criminal gang member in the Special Criminal Court.

It’s easy to react to outrages by giving draconian powers to our police.

But before legislating, the Dáil should ask: how would this have worked in Raphoe?


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