Guilty; But of What?
| Author | Michael Hirst |
| Published date | 01 January 2000 |
| Date | 01 January 2000 |
| DOI | http://doi.org/10.1177/136571270000400102 |
| Subject Matter | Article |
Guilty;
but
of
what?
By
Michael
Hrst
I
Professor of
Crimthal
Jusbce,
De
Mon
ffort Universi!y
ne of the central tenets
of
English criminal law, and indeed
of
the
European Convention on Human Rights,
is
that
it
is
the duty
of
the
prosecution to prove the guilt
of
the accused.'
If
there
is
any
reasonable doubt
as
to
the accused's guilt, it
is
therefore right and proper that
he should be acquitted. Sometimes, however,
it
is
not a straightforward
question
of
guilt
or
innocence, but a question
of
what exactly the accused did,
and which particular offence he accordingly committed.
It
may, in other
words, be evident that he committed a crime, and
yet
it
may not be
clear
from
this evidence whether
it
was crime
A
or crime
B.
Where the facts
are
thus
unclear, it may equally be unclear what the court
or
jury may do in order
to
ensure that justice
(or
at least something close to
it)
is
done.
In this article,
I
will identify some
of
the scenarios in which problems
of
this
kind are most likely to arise, and attempt to ascertain how well the existing
rules
of
evidence and procedure cope with such problems.
I
will also show how
the sensible drafting and interpretation of offence-creating provisions can
minimise the chances
of
such problems arising in the first place. Finally,
I
will
consider some possible options for reform, bearing in mind that any such
reform would have
to
comply with the relevant provisions
of
the European
Convention on Human Rights. Some 'solutions' suggested by the courts in
recent years might well fail to pass that particular
test.
Some
problem
scenarios
Burglary,
robbery
or
handling?
Cases
in
which the accused
is
found
in
possession
of
stolen
property represent
by far the
most
common and most important manifestation
of
this problem,
and have accordingly attracted the widest judicial and academic considera-
tion.
A
typical scenario might be one in which
D
has been found in possession
of property stolen in a robbery or burglary a few days earlier. Under the
so-
called 'doctrine
of
recent possession',
if
he fails to offer any credible
explanation as to how he acquired this property, a court
or
jury may be entitled,
without further evidence, to conclude either that he was the original robber or
burglar, or alternatively that he dishonestly acquired
it
as a handler
of
stolen
goods.2
I
A
principle recently reaffirmed
by
the Queen's Bench Divisional
Court
in Rv
DPP,
exp.
KebiIene
(1
999) The Times26
March;
[I
9991
All
ER
(D)
360.
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
31
To continue reading
Request your trial