What is justice?

Have you ever heard somebody saying the court has declared somebody innocent? We hear it often. We also hear the phrase “innocent until proven guilty” a lot. Not only does it make little sense to many, especially when evidence is so prevalent, but it is also legally incorrect to say such a thing.

There is no court in the world that has the power to confer innocence on any person. Now you’d probably ask, “But then won’t everybody just be considered ‘guilty’?” And that’s where we have it wrong.

It’s wrong to think of criminality as something that is as dichotomous as innocent and guilty. Because that’s never what the courts are asked to consider.

Take the recent case of convicted rapist Nicholas Ninow. The evidence was plainly there to see and yet we had to wait for a court declaration to call him a rapist officially. It’s not like we expected to hear any other outcome, but that is not just because the evidence was so apparent. Even if the evidence wasn’t apparent, “innocence” was never on the table … and it never is in any criminal proceeding.

This is because criminal courts are asked to determine between “guilty” and “not guilty”, not between “guilty” and “innocent”. It may seem like a matter of synonyms and wordplay but the distinction is important. It’s not a matter of whether you actually did it or not. It’s a matter of what we can prove you did. So were a court able to declare a person “innocent”, it would be tantamount to them stating that the person did not commit the crime, which in most situations would be an impossible proof.

Scotland is slightly different, by adding a third option which is “not proven”, which essentially means, “we know you did it but we just can’t prove it by our standards and therefore you can walk away without punishment”.

In case anybody wondered where the term “Scot-free” came from, now you know. You’d live your life a social outcast but won’t be sent to jail.

I was watching the Ninow judgement and felt a shiver down my spine as everybody in the courtroom loudly applauded the ruling (both in the conviction and the sentencing), in a manner that somehow felt like we’d forgotten about what happened to his victim. It was as if a year of legal to-and-fro went about and the outcome was celebrated as if the crime on which it was based had somehow dissipated.

These celebratory reactions of convictions often seem to ignore the real effect of the crime, as I’ve written before, in favour of feeding our desire to see our justice system at work.

I’ve only recently come to understand this thirst for justice because, as a legal practitioner, similar to doctors who deal with severe illnesses regularly, one becomes desensitised to reality. We tend to think in terms of legality and less in terms of humanity.

Last week, the High Court in the Free State released a judgment on an appeal of a convicted rapist of a four-year-old girl for which he received a life sentence. The grounds of appeal included “that the sentence of life imprisonment is shockingly inappropriate and induces a sense of shock” and “that the severity of the offence was over-emphasised at the cost of the personal circumstances of the Appellant”.

Essentially his arguments were that, were he guilty, a life sentence would be too severe (shockingly so) for the rape of a four-year-old.

Now I understand the idea of taking a swing at things in times of desperation, but one doesn’t swing in directions where there is no prospect of success. So in some instances, something must have led to a belief that making these arguments could work. It’s that something and others like it that I think leave a lot of people thinking justice is a cause for celebration rather than a matter of fact.

In many instances people feel wronged by the justice system and that justice hasn’t been delivered. In the above cases, the outcome was taken to seem as justice served, but what about instances where the public just isn’t happy with an outcome?

I’d argue that making the public happy shouldn’t be the primary function of the justice system, but surely it’s still important.

Would opting to change the question we ask the courts when asking if somebody is guilty help offer a better sense of justice? If it did, should we? Do we open the can of worms to go full Scotland and offer an option “we know you did but can’t prove it”?

We should care why people applaud a judicial outcome they agree with as if it negates the damage done by the crime. The answer we do still need to come up with is whether we’re okay with that or should we review our outlook?

Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

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