"I am sorry to see that it is proposed to retain Colonial Regulations (61 and 62) in the form now drafted, particularly the latter. I don't know whether there is any possibility of reconsidering it; but this woolly-minded regulation, whilst inspired by the best of motives, has done great damage to the public service by lowering the standards required for retention in office and, in effect, introducing a provision that anyone not proved to be a criminal and not involved in the pettier forms of misconduct is fit for the public service. It tends to favour those whose misconduct is more serious as against those who are responsible for minor errors.
It is inspired by the thought that those who are suspected of crimes are entitled to the full protection of our methods of criminal procedure. This is entirely right and proper when the question at issue is a man's liberty or any other form of criminal punishment. It is quite out of place when neither of these are involved. Our criminal procedure surrounds an accused with a number of safeguards. These are now thought to be excessive in some respects and owe a good deal to the history of our criminal law which at one time involved excessively severe punishments. They include not only the obligation to prove a case beyond reasonable doubt, an expression which has given rise to much difficulty in recent years, but also provide for the exclusion of material which is freely admissible and frequently cogent when the matter at issue is one of civil liability and not of criminal punishment. If the question at issue is the position of an officer in the public service, it is quite wrong to make that dependent on tests higher, and more exacting, than those which apply in a court of law dealing with a civil process.
As an illustration of what I mean, I would mention a case in which I was once concerned where a man was acquitted on a charge of arson. Subsequently on a claim under an insurance policy, the company successfully repudiated liability on issues substantially the same as those involved in the arson charge because they were able to adduce evidence not admissible on the criminal charge and to satisfy the standard of proof attributable to civil liability.
In effect, what these regulations say is that provided your conduct is bad enough and serious enough, we will make it more difficult to get rid of you because we raise the standard of proof required and exclude matter that would be admissible if your alleged errors were less serious.
That is all very well if you are visiting him with criminal penalties; but why should we have standards of proof higher than those applicable in the civil courts when we are determining whether a man is fit to remain a public servant?
Not only do these regulations err in their basic conception but the manner of their drafting throws up unintentional obstacles. We are told not to penalize conduct if we thereby raise substantially the same issues as those on which a man has been acquitted. This assumes a precision that is lacking from, for example, a jury trial, which results in a general verdict of not guilty. For a finding of guilty it may have been necessary for a jury to have come to positive answers on a number of separate and distinct issues. Their verdict does not tell you on which issue the prosecution failed; but not knowing which, you are, by these regulations, precluded from relying on any of them.
The result of all this is to create a situation in which those responsible for good discipline in the public service are tempted to feel that it is better not to prosecute where there is any danger of an acquittal and I think I would be right in saying that because those concerned, or some of them, are in a position to determine whether a prosecution will or will not be launched, decisions have sometimes been taken not to file charges. This is wrong, tending as it does to confer a measure of immunity on civil servants that is not available to the general public. Would it be suggested that a prosecution should not be instituted because failure might make it more difficult for an ordinary civilian employer to terminate the employment of the accused?"
181. I agree with every word of that. The rule that a criminal charge must be proved beyond reasonable doubt was designed to achieve a degree of certainty of guilt which, so far as humanly possible, would ensure that no innocent person would ever be convicted. According to the British conception of criminal justice, it is better that ten guilty men should go scot free than that one innocent man should be found guilty and punished for something of which he was in fact not guilty according to law. Anyone who has been associated with the criminal courts for any length of time must realise how heavily weighted are our rules of evidence and procedure in favour of an accused person. To a Frenchman, a British criminal trial is not a serious inquiry into the guilt or innocence of an accused person, but some sort of game in which the dice are loaded heavily in favour of the accused.
182. For many years, I have felt that the "dice" are too heavily loaded. Be that as it may, when an employer is considering whether the conduct of an employee is such as to merit his dismissal, why should the employer have his hands tied behind his back by the stringent rules applicable to an English (and Hong Kong) criminal trial?
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