The finding of “not guilty” in an Egyptian Court, and release from custody from an Egyptian prison of Ibrahim Halawa, has led many people, including Minister Simon Coveney, to describe him as “innocent of the charges”.
During the summer Paul Murphy TD, and the Jobstown water protesters who were accused and charged with false imprisonment of Joan Burton and her assistant were found “not guilty” of the charges levelled against them.
Their supporters naturally claimed they were all found “innocent”.
Well, that’s not exactly the case.
A Court or a jury in a criminal case cannot find you innocent; the choice they face is “guilty” or “not guilty”, and both Ibrahim Halawa and the Jobstown protesters were found “not guilty”.
That’s all a Court or a jury can do.
The question of innocence, from a legal perspective, is a different matter.
Let me explain.
Burden of Proof-the Probative Burden
In a criminal trial the prosecutor has a probative burden-that is, the burden of proof. The standard in a criminal trial is “beyond a reasonable doubt”.
So, the prosecutor must prove the facts of the case, and the accused’s guilt beyond a reasonable doubt.
If the prosecutor fails to discharge this burden of proof, then the finding of the Court or jury will be “not guilty”.
This, as you may now recognise, does not mean the accused person was innocent.
It does mean, however, that guilt has not been proven and the accused person can then enjoy the presumption of innocence, just like everybody else, including persons who have not been accused of any crime.
You can draw two conclusions from a finding of not guilty:
- The accused person was innocent as a spring lamb, or
- The accused person “did the deed” but the prosecutor, for whatever reason, was unable to discharge the probative burden-to prove guilt beyond a reasonable doubt.
Sir William Blackstone, in his 18th century book of commentaires on the common law, came to the following conclusion:
“It is better that ten guilty persons escape than that one innocent suffer”
This is also called Blackstone’s ratio. What he actually wrote in his “Commentaries on the laws of England” in 1760 was, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”
In any event, it is essential that all accused persons enjoy the presumption of innocence when faced with a criminal charge. It is a fundamental constitutional right in Ireland, and also a human right in most, not all, parts of the world.
It’s probably also useful to recognise the difference between “not guilty” and “innocent”.