Hashtag justice is no justice at all
Public sphere declarations about a trial arrive at conclusions without all the facts
Rally in Belfast: the #IBelieveHer hashtag trended on Twitter in support of the woman at the centre of a rugby rape trial. Photograph: Pacemaker Press
The “not guilty” verdict in the Belfast rape trial has been greeted with a huge amount of commentary on social media which raises some interesting questions and indeed concerns.
To begin with, the use of #IBelieveHer hashtag logically implies that contrary to the findings of the jury the person using it believes the relevant accused parties did engage in non-consensual sexual relations with the complainant. What is not forthcoming is whether this belief is premised on a beyond reasonable doubt formula, a balance of probabilities standard, or a more intuitive sense of right and wrong.
The required burden is beyond reasonable doubt. It is more than a technical rule. It is a guaranteed right which must be complied with by a jury in reaching its conclusion. The justifications for this threshold include a recognition of the freedom and good name of every individual, the dangers of a wrongful conviction, and the dissymmetry in power between the State as prosecutor and the individual defendants.
It cannot automatically be inferred that the complainant was lying from the not-guilty finding
Moreover, there is one obvious limitation which is rarely addressed in these hashtag commentaries, whether supporting the accused or the complainant. Most people liking, sharing and using this hashtag were not present in court for the duration of the trial. They did not therefore have the opportunity to hear all of the evidence, to watch responses viva voce in examination-in-chief and cross-examination, or to work through judicial directions knowing that they were the ultimate arbiters, burdened with the obligations that such responsibility demands.
In addition, this decision-making process engaged in by the jury is subjected to a comprehensive and transparent set of procedural and substantive rules for receiving evidence and adjudicating on the facts presented. Hashtag justice, in contrast, is not scaffolded by any “procedural morality”, by any agreed-upon rules, principles or normative standards of fact-finding and adjudication. It has the luxury of arriving at a conclusion, without ever having the obligation to reveal the process that leads to that conclusion.
Some of the commentary on the verdict was also misinformed. It cannot automatically be inferred that the complainant was lying from the not-guilty finding. The verdict can be interpreted to mean that there was insufficient evidence to prove the case beyond a reasonable doubt.
Some of the commentary also suggests that the verdict does not support the conclusion that the accused parties are innocent. In language terms, it can be said that there is a distinction between the labels “innocent” and “not guilty” in that the former is not a synonym of the latter. In law, however, the presumption of innocence operates until an accused party is found guilty, thereby preventing a plain literal meaning being imposed on these words. Matters are further complicated given that a jury cannot find that an accused party is innocent. Its function is to return either a guilty or not guilty verdict.
Strong suggestions that an accused party is guilty of a crime can jeopardise a prosecution case, and can potentially provide grounds for an appeal even where a conviction is obtained
A not-guilty verdict therefore encompasses both of the following possibilities – that the jury believed the accused to be innocent or believed that there was insufficient evidence to prove the case beyond reasonable doubt. Whether the acquittal is based on innocence or insufficient evidence – and it equally cannot be automatically inferred that it is the latter – it is clear the accused parties continue to enjoy the presumption of innocence. This status is neither lost nor suspended on acquittal. Indeed it is further protected by the principle of double jeopardy.
‘Agent for change’
Activism serves a very important purpose in raising awareness about the myriad of difficulties faced by complainants in the criminal process. Initiatives of this kind have already brought about significant changes in our criminal justice system. Clearly the more awareness that can be raised, the better. Such activism creates an anchoring point of solidarity, which in turn can act as a powerful agent for change.
However, awareness-raising which expresses views about guilt, expressly or impliedly, is much more problematic. It is particularly so if the trial has not concluded. Strong suggestions that an accused party is guilty of a crime can jeopardise a prosecution case, and can potentially provide grounds for an appeal even where a conviction is obtained. In certain circumstances, it may also lead to civil actions for defamation.
Though we should continue to actively champion awareness-raising for complainants and reform of our criminal process, it needs to be done in ways that continue to ensure the fairness and integrity of the decision-making process. The increasing accommodation of victims in the criminal process is a good and very necessary phenomenon. We should, however, resist any attempt to align the public sphere with complainants/victims and against those accused of crime.
The rights of the accused are actually our rights, as are those rights which can also accommodate victims. Both sets of rights and claims should be valued in our community and accommodated in our justice system. Hashtag justice cannot provide this accommodation. We should therefore continue to have only one justice system – the formal one, framed in law, and adjudicated upon by authorised triers of fact.
Prof Shane Kilcommins is head of the school of law at the University of Limerick