Sir Cliff Richard stirred controversy this week when he appeared on ITV’s midday chat show Loose Women, by invoking Blackstone’s Ratio. Evidently, some viewers found this staple of common law jurisprudence too much to stomach before the 9.00 p.m. watershed, and took to Twitter to complain:
“gross and abhorrent”
“stupid and offensive”
“Get in the bin”
This type of grassroots authoritarianism is intended to foreclose debate.
In fact, the maxim has an ancient and honourable history, dating back to Biblical and Classical times. It’s worth revisiting how and why it evolved, and why so many people regard it as a cornerstone of any civilised criminal justice system. So, what is Blackstone’s Ratio? “[B]etter that ten guilty people escape, than that one innocent suffer”.
The exact number of criminals whom society should allow to escape unpunished has exercised eminent legal minds over the centuries. The twelfth-century jurist Maimonides’ 290th Negative Commandment reads: “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once.” Reasonable people might baulk at this expansive formulation: better for whom, exactly?
In an era of capital punishment, it was understandable that legal authorities consistently argued that some degree of caution and restraint was essential, to avert the possibility of innocents being executed. In religious societies, the taking of innocent life was not just a legal wrong, but also a grave sin.
Contenders for other ratios of Guilty: Innocent include the Emperor Trajan and King Aethelred the Unready (1:1), the fifteenth-century Chief Justice Fortescue (20:1), Matthew Hale (5: 1), Benjamin Franklin (100: 1), and Thomas Starkie (99: 1).
In R v Patel (1951), the Court of Criminal Appeals described the Guilty: Innocent trade-off as:
“trying to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one.”
In 1968, Judge Friendly of the United States Court of Appeals (Second Circuit) opted for an unspecific formula:
“most Americans would agree it is better to allow a considerable number of guilty persons to go free than to convict any appreciable number of innocent men.”
In R v Winship (1970), Harlan J. of the United States Supreme Court opted for a ratio of 1:1, saying that the criminal standard of proof (beyond reasonable doubt) is:
“bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
The principle has had its critics, notably those of a more authoritarian persuasion. Bismarck reversed Blackstone’s Ratio, while the founder of the Soviet secret police stated: “Better to execute ten innocent men than to leave one guilty man alive”. Ultimately, this draconian approach led to Stalin Syndrome: “[b]etter 100 innocent should die than one guilty go free”.
In times when society is preoccupied with a particular threat, be it crimes of terrorism or sexual offending, juries may well be less receptive to Blackstone’s Ratio, and err more on the side of Bismarck. That is precisely why we should be prepared to defend it.
I am indebted to Alexander Volokh’s magisterial survey of this topic, in “nGuilty Men”, for the University of Pennsylvania Law Review, Vol. 146: 173 (1997).