A crime like no other

premise of our criminal law: that no man or woman can be guilty of a crime unless it is so proved beyond reasonable doubt. But the proof-beyond-reasonable-doubt standard is one that defies measurement: it is often approximated to between 80 per cent to 90 per cent, never 100 per cent certainty. The late Professor Wigmore in his classic treatise on Evidence (1940), when discussing attempts by courts to define how convinced one must be to be “convinced beyond a reasonable doubt”, wrote: “the truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be as yet no successful method of communicating intelligibly a sound method of self-analysis for one’s belief. And yet the choice of the standard of proof does make a difference.”

And 30 years later in the year 1970, long before terrorism frightened the wits out of the US criminal justice system, Justice Harlan of the US Supreme Court had soberly explained in a judgment how a beyond-reasonable-doubt burden was so designed as to ensure that erroneous judgments will more often set guilty defendants free than send innocent defendants to prison!

The social harm of imprisoning an innocent defendant on a false charge of, say, theft or robbery, is great. And yet the social harm of setting free such a thief or robber (for want of evidence acceptable in a court of law) will not have quite the same impact as setting at liberty a terrorist (who kills) because there is not enough proof of his guilt, only strong suspicion. In this cruel world beset by suicide bombers and the like, if the presumption of innocence is to be maintained (as it must), should not the court also be influenced by the fall-out? That is, by the seriousness of the crime?

There is a perception in the public mind that in terrorist-related offences the dice is loaded against the prosecuting agencies, in favour of the accused. This perception of reasonable people — people who believe in the presumption of innocence, the need for a fair trial etc — cannot be just wished away or ignored. Victims of acts of terrorism are not to be treated as mere victims of some tortuous action, to be given ex post facto benefits evolved by legal regimes in the form of “socialisation of risks”. Social guarantees for the benefits of victims are simply not enough. We must gear up the criminal justice system so that the terrorist who kills, or conspires to do so, gets nailed down.

I have long advocated that in terrorist-related offences the right of the accused to remain silent during the trial (a right given to him under many if not most criminal justice systems, including our own) is often a refuge — an escape for the guilty: the accused, after engaging a prominent lawyer, sits back defying the prosecutor to prove every bit of his case beyond reasonable doubt; he will not assist the court. This is all wrong. The “right” to silence must give way, but only at the discretion of the trial court — in the larger interests of society and in the interest of the victims who are affected by dastardly criminal acts.

Although every accused has a right to be presumed innocent till proven guilty, in terrorist-related and other grave crimes the persons arraigned as the accused after investigation have an obligation to assist in the discovery of the truth. Knowing the true facts, they must tell the court what they know. Adverse inferences to be drawn from their failure to give evidence may not be enough; because this might well be in conflict with the presumption of innocence; there must be a positive obligation imposed by law on such accused persons to assist the court in the discovery of the truth, and if so required by the court, to give evidence on their own behalf.

Let me emphasise that the requirement should not be that of the prosecutor but of the trial judge, who would consider under what circumstances and in what cases the accused persons need to step into the witness box and give their version of the facts and events. We need to enact such a law now: a law that would not transgress but further the purposes of criminal justice. Such a law would not be a disproportionate response to the growing menace of global terrorism.

The writer is an eminent jurist