People talk of the presumption of innocence and the legal requirement of proof beyond reasonable doubt in considering the prosecution and conviction of Cardinal Pell.
Most of the commentators are unaware of the presumption of regularity that would say that the jurors are presumed to have discharged their duties in this case in an appropriate manner. There is a Latin tag to the effect that steps are taken to have been done correctly. A leading authority (Thayer) refers to ‘the assumption of the existence of the usual qualities of human beings, such as sanity, and their regular and proper conduct, their honesty and conformity to duty.’ Some people may wish to bear this assumption in mind before accusing the Pell jury of being perverse or unreasonable or of not adhering to their oath. Championing a presumption of innocence may run in both directions. It’s just that for one reason or another, the jurors don’t usually get to be championed.
To return to the onus of proof, in a criminal case, the Crown (the accuser) bears the burden of proof. In a civil case, the person complaining (the plaintiff) bears that burden. If nothing happens in either case, that is the end of it.
The law recognises three standards of proof. In crime, it is proof beyond reasonable doubt. In civil cases, it is proof on the balance of probabilities – it is sufficient that the evidence warrants a finding that it is more likely than not that the relevant allegation has been made out.
But the law recognises a standard in between those two. It is typically applied where a serious crime is alleged in civil cases or where an adverse finding might cost someone their job or their good name. The criterion for drawing the line has never been adequately explained to me. The best I have seen is that common sense suggests that you need more persuasion to hang someone for murder than you need to give them a parking ticket.
One formulation is ‘comfortable satisfaction.’ The Court of Arbitration for Sport was comfortable about applying that test in the case of the Essendon footballers – and in upholding every single allegation against them while doing so. If you think that the worth of a proposition can be tested by looking at its negation, what might ‘uncomfortable satisfaction’ look like? Spending a fortune on a suite up front in an Arab airline and then finding that you have a burr in your nickers? In thirty years sitting on tribunals, where counsel sought to invoke this protection I never felt intellectually secure in seeking to apply it. I just followed my nose.
So, when a private hearing was conducted into an allegation of abuse against Pell by former Supreme Court judge (Southwell, J), the judge, as I am informed, applied this intermediate test. (The lawyers refer to it as Briginshaw because that was the name of the parties in the leading case in the High Court that arose from an allegation of adultery in a case that reached the High Court.) The judge found that each side had given credible evidence, but that this was not enough to satisfy the intermediate standard of proof. That finding was far from being an exoneration of the accused.
Well, that’s fine for the accused. What about potential victims? If the Church is going to be responsible for the wrongs of this man, what standard of proof should the Church apply in determining whether this man represents a risk to those who may be in his care or merely exposed to unsupervised contact with him? When I there ask how the Church ‘should’ proceed, I am speaking of both a moral and legal obligation (or duty).
Let us look at the civil side. If you are running a trucking company – an analogy once unhappily invoked by the cardinal – and you suspect that one of your drivers may be a risk to the public, and therefore to you and your insurers – say from drugs or alcohol or some physical disability – it would in my view be morally and legally wrong to say that you needed to be persuaded of the risk beyond the balance of probabilities before you took remedial action. The company would be obliged to take action as soon as it appeared to it that it was more likely than not that this driver was a risk to others.
The case is a fortiori for people in positions of power who can apply undue influence over those not of the age of consent.
It looks to me therefore that the church was legally and morally wrong in not taking adequate remedial action on the Southwell report to protect those in its charge from the risk posed by this priest. It would be quite wrong to say that the Church could not take any such action until it was satisfied of the risk beyond reasonable doubt or to a level of ‘comfortable satisfaction.’ A rule that was fair to the priest may have been anything but fair to those in his charge – it looks to have been fatal for one of them.
And the reason sounds familiar – the Church put their interests over those of their flock. Most victims would be appalled to learn that the Church took no action against a priest who had not been exonerated on a most serious allegation.
And, if it matters, that is why so many lawyers in the neutral corner would be so uncomfortable with the rubber stamping on party lines of the appointment of Justice Kavanaugh to the Supreme Court of the United States. It’s not just that appearances matter; the public conduct of this man showed that he was susceptible to partisan influence – it is beyond doubt that he got the job as a result of such influence – to an extent that rendered him unfit for that office.
But that is not all. Is it right to have someone appointed to high office when there is a serious allegation against them that is unresolved? Or that is rammed through on party lines? Some positions are ‘Caesar’s wife’ territory – the occupant must be beyond suspicion. Judicial office is one such office and the U S Supreme Court now has two members on it that fail that test.
The onuses and presumptions that we have been discussing are part of the law of evidence. They are applied by law courts in the trial of issues in an attempt to ensure a fair trial. The law does not ordinarily require or even suggest that these rules be applied elsewhere (although that part of our law called administrative law will subject some bodies to procedural obligations to protect certain rights).
You could look stupid if you sought to apply the rules of evidence in ordinary conversation – if, for example, you objected to a statement in a political debate on the ground that it was inadmissible as hearsay. The referees in sporting contests may have an onus in awarding penalties – but how often do you hear the standard of proof being discussed? Well, one thing is clear enough. If you want to red card someone for rough play in a world cup final, you will require a lot more assurance than you would for calling a kid off-side in the Under 12’s.
If you told a high school teacher of rowdy teens that the students had the benefit of the presumption of innocence, you would not be believed. And the same should apply to people in positions of trust or confidence – there any onus might lay on them to show that they have discharged their office – or at least not put it out of their power to do so. In some instances of ‘undue influence,’ the onus is on the office holder to demonstrate the probity of an impugned transaction. That does not happen if an issue as to the person’s probity has been left unresolved.
That appears to have been the case with Cardinal Pell. If so, some unfortunate people have paid an awful price for this lapse of judgment.
Willkie Farr, which put Mr Caplan on leave after he was charged last month, announced that it has now cut ties with him. ‘At Willkie, nothing is more important to us than our integrity and we do not tolerate behaviour that runs contrary to our core values. We remain focused on our responsibilities to our clients, partners and employees,’ the firm said in a statement.
Financial Times, 6 April, 2019
With those fees, they might at least try talking English. Do they tolerate behaviour contrary to values that don’t go to their core? Are values like apples? Are they, too, subject to the laws of gravity?