Beyond Reasonable Doubt

The cult film noir Detour has an unusual take on murder. The ‘hero’ is neither a hardened criminal or an innocent man fighting for justice.

Instead the main character, hitchhiker Al Roberts, asks us to believe that he has accidentally become a double killer.

Watching it was a bit like listening in court to a defendant giving his explanation from the witness box.

That man I left naked by the side of the road with a nasty gash on his head? Well he must have died in his sleep and then fallen and hit his head on a large rock. I took his clothes, his money and his car because there was no other choice. Nobody would believe what really happened.

That girl lying dead on the bed in a motel room? I must have accidentally strangled her with the telephone wire trying to stop her calling the police.

The film portrays these events plausibly enough. But as Al Roberts says, when considering whether to go to the police: ‘They’d laugh at the truth.’

When it comes to the courts these decisions are made by the jury on the basis of ‘beyond reasonable doubt’. But what exactly is a reasonable doubt?

Juries, faced with the responsibility of sending a man to prison, ask this question so often that judges now tend to give the altternative explanation that they ‘have to be sure’ of a defendant’s guilt.

Sometimes this appears to confuse people even more. It doesn’t mean you have to be 100 per cent certain of guilt – after all, can anyone be 100 per cent certain of anything?

There are potential explanations for almost every crime. In one case a suspected killer whose DNA was found on the victim’s body claimed that he just happened to find her corpse lying by the side of the road and decided to have sex with it.

It was quite obviously ludicrous, but it was theoretically possible.

Not every killer is caught in the act on CCTV or confesses under questioning. DNA or fingerprints are not always found at the scene. The jury have to reach their decision after considering all the evidence presented in court. And if they are not convinced of guilt they should acquit, even if they suspect they did commit the crime.

There is a reason for such a high standard of proof, and it’s easier to understand it by putting yourself in the shoes of the defendant in the dock. And I’d bet that almost everyone would prefer the decision to be made by 12 members of the public than a legally-trained judge.

Because, as Al Roberts says at the end of the film, ‘Fate, or some mysterious force, can put the finger on you or me for no good reason at all.’


Detour [1945] is now public domain and can be watched for free online.

Murder Law

Reading the recent stories about plans to introduce US-style murder charges to the UK, it seems very few people understand how our system works.

It began with Keir Starmer, the Director of Public Prosecutions, joining calls for the offence to be split into first and second degree murder – first degree for intentional killing and second degree with a lesser intent of causing ‘really serious harm.’

According to the Daily Telegraph, Independent and Guardian the present system is too rigid, covered by ‘a blanket of moral uniformity’, and ‘permeated by anomaly, fiction, misnomer and obsolete reasoning.’

The main criticism seems to be that everyone convicted of murder is given a life sentence and as a result ‘mercy killers’ and youths involved in ‘joint enterprise’ gang violence are put in the same bracket as hardened serial killers and gun-toting gangsters.

Under a US-style system those guilty of second degree murder could be given a non-life sentence. The alternative, as suggested by Paul Mendelle, the former chair of the criminal bar association, is an upgraded manslaughter offence.

Naturally some suspect that this is a liberal plot to reduce prison sentences overall while others see the life sentence as a recent attempt to soothe the right-wing press.

Perhaps the way successive governments have fiddled with the law and sentencing guidelines has confused everybody.

Here are some facts:

1) The mandatory life sentence for murder has been in place since 1965.
2) A life sentence does not mean life in prison.
3) Judges already have the power to distinguish between different kinds of murder in sentencing.

Before the 2003 Criminal Justice Act judges recommended how long the offender should serve before being considered for parole, although the Home Secretary could increase or decrease it. One released they would be subject to recall to prison for the rest of their life if they reoffended.

After 2003 judges were given the power to set a ‘minimum term’ that the offender must serve before being considered for parole. Just in case they were all incompetent, a vast array of guidelines were drawn up to make sure they towed the line.

The ‘starting point’ for minimum terms are as follows:

12 years – all offenders under 18
15 years – most offenders 18 and over except as below
25 years – involving the possession a knife with intent to commit any offence or the use of a knife to commit murder
30 years – murder for gain (usually financial), murder of two or more victims or more, murder of a police or prison officer in the course of duty, murder involving the use of a firearm or explosive, murder involving sexual or sadistic conduct, murder aggravated by racial, religious or sexual orientation.
Whole life – particularly serious offences, including murder of murder of child involving abduction, sexual or sadistic motivation, murder for political, religious or ideological cause, or murder carried out by an offender with a previous conviction for murder.

It doesn’t stop there. Judges can increase or decrease the starting point according to another list of factors – which include whether the intent was to kill or just inflict really serious harm.

Theoretically the judge can take account of anything he wants, but the 2003 Act provided a list of helpful hints.

Factors that aggravate the offence (and increase the minimum term):

1) significant planning or premeditation
2) victim particularly vulnerable due to age or disability
3) mental or physical suffering inflicted on victim before death
4) abuse of a position of trust
5) duress or threats against another to facilitate commission of offence
6) victim providing a public service or performing a public duty
7) concealment, destruction or dismemberment of the body

Factors that mitigate the offence:

1) intention to cause serious bodily harm only
2) lack of premeditation
3) offender suffering from mental disorder or disability
4) provocation not amounting to a defence of provocation
5) offender acting to any extent in self-defence
6) belief by the offender that the murder was an act of mercy
7) offender’s age

Just a brief look through the cases on murdermap reveals that sentences vary wildly depending on the nature of the crime. The single thread running through them is that the offender can only be released when the parole board says so.

In effect, if the papers are to be believed, any US-style reform would be taking the decision on release of ‘second degree murder’ prisoners away from the parole board. Instead they would be released half way though their sentence.

This seems likely to confuse the public even further, going by the debate on the Daily Telegraph opinion forum.

Take this response from Richard Edwards: ‘I don’t understand prison sentences at all. The other day a teacher got 21 years for sexually assaulting 12 children. A well known Libyan, convicted of killing 272 people at Lockerbie gets 26 years, and early release. Where’s the proportionality in that?’

The answer is that Richard Edwards doesn’t realise that he’s comparing two different types of sentence.

The teacher who got 21 years (a determinate non-life sentence) will be released after serving 10.5 years in prison. Lockerbie bomber Abdelbaset Al-Megrahi was sentenced to life imprisonment with a minimum of 27 years before being considered for parole. He was only released early after being diagnosed with cancer. Otherwise he would have spent 27 years behind bars before appealing to the parole board for release.

Given the state of confusion that exists at the moment, it seems likely that a ‘second degree murder’ charge will do little to clear it up. It might even make it worse.

Maybe we should just scrap the whole lot and start again. Any suggestions?

‘One Punch Manslaughters’

It seems like a rare event, a freak occurrence – an innocent person is hit with a single punch and falls back on to the pavement, striking their head hard on the ground. Tragically they suffer a fractured skull and brain damage and die within a few days despite advanced medical treatment.

That is exactly what happened to Ekram Haque, a 67 year-old retired care worker. He was minding his own business, waiting outside a mosque with his three year-old granddaughter, when he was knocked to the floor by a 16 year-old boy for ‘fun’.

It was not the first time Leon Elcock had attacked a stranger in a so-called ‘happy slap’ attack. Minutes earlier he and his friends had attacked two men in the same street. Luckily they survived despite suffering head injuries that required medical treatment.

Elcock did not intend to kill Mr Haque – but surely he must have realised the risk?

Sadly far too few people realise how common such deaths are on the streets of London. In 2008 there were at least six cases that could be described as ‘one punch manslaughters’.

In 2009 there were eight, including Ekram Haque. This is not an insignificant number, when you consider it amounts to nearly seven per cent of the total number of both murders and manslaughters that year.

One might think the victims of these attacks were all elderly or susceptible to head injuries. Not so in the case of Jade Defoe, the half-brother of England footballer Jermaine Defoe. Jade was knocked to the floor with a single punch and died four days later after suffering a fractured skull and brain damage.

The families of these victims naturally expect justice for their loved ones. They expect the offenders to be punished severely for taking a life so casually.

In almost every case they are disappointed. The two killers of Ekram Haque, Leon Elcock and Hamza Lyzai, 15, were jailed for four-and-a-half years and three-and-a-half years respectively. The killer of Jade Defoe was jailed for three years. They will all walk out of jail in roughly 18 months, having served half their sentences before being released on licence.

The public outcry following the Ekram Haque sentence was inevitable and the Attorney General is now to review the case with a view to possibly referring it to the Court of Appeal.

It was only in December 2009 that the Lord Chief Justice said that in future attention must be given to the ‘problem of gratuitous violence in city centres and the streets.’ Anyone watching the CCTV footage of the attack on Ekram Haque would have no doubt that this was gratuitous violence.

But is it possible to reflect the fact that death was caused by just a single blow? Can you put a value on a life?

In 2001 the Appeal court highlighted the factors which could increase the sentence for manslaughter: burglary, robbery, public concern and the need for deterrence, whether violence of any kind was intended and the extent to which risk of serious injury or death was apparent to the offender.

On the other hand, one guideline case used by defence lawyers is R v Furby from 2006, relating to death caused by a single punch from a man who was a friend of the victim and had no previous convictions. In his case the sentence on a guilty plea was just 12 months. Such low sentences take account of the fact that if the victim had not died the attacker would only be charged with assault occasioning actual bodily harm, when the maximum sentence is five years imprisonment.

The killers of Ekram Haque were originally charged with murder. The prosecution accepted a plea to manslaughter on the basis that only one blow was struck with a fist and there was no intention to cause ‘serious bodily harm’. This decision was criticised by Ekram Haque’s son, although it is likely any jury would have cleared the pair of murder on the basis of lack of intent.

Elcock and Lyzai had a history of violence and so might expect harsher sentences. But in their favour they were only 14 and 15 years old at the time of the attack and there was no robbery involved. As a result of their guilty plea and their young age their sentences would have been reduced by a third.

The result appears to be deeply unfair. A family have lost their beloved father and grandfather, while the two teenagers who hit him ‘for fun’ will walk out of prison before their 18th birthdays.

UPDATE: The Attorney General has decided the sentences were not ‘unduly lenient’ and will not be appealing to the High Court for an increase.


Further reading: An article in the Barrister Magazine on how many one punch manslaughter cases are punishing defendants for ‘bad luck’

The Identity of Jon Venables

How many people know Jon Venables’ new identity? Well, for a start, everybody who was in court 14 of the Old Bailey last Friday morning.

Given the number of times we were told his life was under threat, it was a big surprise to hear the name he adopted in 2001 being read out by the prosecutor.

We also got to hear the exact address where he had been living when he was accessing child porn on a personal computer. Not that we could report either of these details, thanks to an injunction.

One person who was in court was Denise Fergus, James Bulger’s mother. There were many others – about 40 members of the press, the judge, the clerk, the usher, a shorthand writer, a handful of police and probation officers as well as about a dozen laywers (representing the prosecution, defence, Cheshire Constabulary, Media and Attorney General).

None of these people is likely to start travelling the country shouting out Venables’ current name from the rooftops – but it does make you wonder why the Attorney General and Venables’ barrister were so keen to maintain the injunction.

A third identity now seems inevitable, particularly as ‘Jon Venables’ blew his cover so spectacularly. Those who knew him in Cheshire will put two and two together, and the likelihood is that someone somewhere will broadcast his assumed name over the internet, on Twitter or Facebook, just as someone named the mother and stepfather of Baby P before the court order was lifted.

Fellow prisoners are also likely to guess who he really is, meaning he’ll probably be kept in isolation for fear of attack.

In a few weeks we might be in the ludicrous situation where everybody knows Jon Venables’ name but the media will still be unable to publish it for fear of being taken to court.

Jon Venables, meanwhile, will go on being Jon Venables, the the killer of two year-old James Bulger.