I came across a quotation from a very old criminal case a few weeks ago and it has been on my mind – I can’t turn up the reference today save that the Judge was Fortescue, will try to find it. Anyway, the thrust of it was that the Judge, in explaining the need for fairness and procedure in criminal proceedings brought in the reference of Adam and Eve, in effect saying that God did not immediately punish them for their original sin, but gave them a trial first. If that’s so, then a criminal trial is either one of the first important things in human history (if you are a creationist) or something that is in one of our oldest pieces of literature (if you are not).
So, it has been on my mind as to whether or not they received a FAIR TRIAL.
Let’s start with the offence – was there an establishment of a criminal offence, and warning of consequence of the offence?
Genesis chapter 2
And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat:
17 But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.
On that basis, Adam clearly knew that God did not want him to eat the fruit from the tree of knowledge (in effect, that’s the equivalent of the Government enacting the Theft Act). I would point out that shortly afterwards Eve is created, and the warning isn’t given again. So it is arguable that God did not communicate the Theft Act to Eve, relying on Adam to tell her. Given that they were the only people in the world, and that God’s entire conversations to that point with Adam were less than a page, it seems reasonable to assume that at some point Adam would have mentioned it to Eve, it being the only rule of the Garden of Eden.
We now come to the offence itself
Now the serpent was more subtil than any beast of the field which the LORD God had made. And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden?
2 And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:
3 But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.
4 And the serpent said unto the woman, Ye shall not surely die:
5 For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.
6 And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.
(In addition, we establish here that Eve DID know that God had prohibited the eating of the fruit, so she can’t later claim ignorance of the law, which as we know is no excuse anyway)
At this point, we are aware that Adam and Eve knew that eating the fruit was unlawful, and that they ate it. One can hardly claim that you recklessly ate an apple from a tree, so although God wasn’t specific about mens rea for the offence, there seems to be both the act of eating the apple and the intention to eat the apple.
The offence comes to light here, and God probes the couple as to what happened
And they heard the voice of the LORD God walking in the garden in the cool of the day: and Adam and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.
9 And the LORD God called unto Adam, and said unto him, Where art thou?
10 And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.
11 And he said, Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?
12 And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.
13 And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.
I’m not sure that I would classify that as a trial, so much as an interview. Both of them confess (Eve after Adam has already turned Queen’s Evidence on her)
If they HAD denied it, given that God was both prosecutor and Judge, what chance would they have got? Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future. He would appear to be the perfect eye witness, and is also the Judge and the jury. He clearly would not have reasonable doubt, given that He was an eye-witness.
I think that Adam and Eve would be doomed if they tried to defend the case.
One might argue that they did it, and we know that they did it, so does it matter that they had no real opportunity to defend themselves? Does it matter if a system absolutely ensures that the guilty are always punished (the corollary of God being a perfect witness is that the innocent would never be convicted by Him, because of his omniscence. Perhaps it is only that our imperfect human minds are not omniscent that means that we NEED reasonable doubt and the chance for people to persuade a jury of those doubts)
The better line of defence here might be in relation to the agent provocateur, the serpent. At no point in the ‘trial’ is it revealed that the serpent was previously employed by God. And of course, as God as ominiscent, then He was there when the serpent tempted Eve and could have intervened, and He knew in advance that the serpent WOULD try to tempt Eve and gave no guidance. Is there the possibility of an entrapment defence here?
Well, that is going to hinge on whether God is English or American (other nationalities are possible, but come on, clearly God speaks in a similar voice to either David Niven (English) or Charlton Heston (American) )
In English law, entrapment is not a defence
R v Loosely
35. The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them.
English law on entrapment
36. Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif  1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.
(a) Not a defence
37. The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as “not devoid of appeal” suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.
So in English law, the fact that the serpent, whose connection to the Prosecution / law enforcement agencies is uncertain but at least raises doubts, lures Eve into the offence is not a defence. It might be that if the circumstances are so repugnant to justice that the EVIDENCE obtained can’t be relied upon the prosecution might be stayed, but that would be God’s decision as the Judge.
It is God acting as Judge and jury and police and prosecutor which raises the biggest issues here. That would seem to give rise to a right of appeal, on the R v Sussex Justices point – “Justice must not only be done, it must be seen to be done”
The right of appeal doesn’t help though, since any appeal would (a) also be to God and (b) Him being omniscent, already knows the outcome of the appeal.
It is quite difficult to work out what a fair criminal justice system in which the only individuals in existence are God, the serpent, Adam and Eve; so one must be careful in criticising what was set up, but this arrangement where God sets the law, brings the charges, is a wtiness of fact, decides the case and delivers sentence seems lacking in the fundamental separation of powers.
Perhaps that explains why God (who had told Adam and Eve that if they ate the fruit, they would die that same day) ends up giving a more lenient sentence than the death sentence originally specified.
Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.
17 And unto Adam he said, Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life;
18 Thorns also and thistles shall it bring forth to thee; and thou shalt eat the herb of the field;
19 In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.
And the LORD God said, Behold, the man is become as one of us, to know good and evil: and now, lest he put forth his hand, and take also of the tree of life, and eat, and live for ever:
23 Therefore the LORD God sent him forth from the garden of Eden, to till the ground from whence he was taken.
24 So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life.
So, hunger, banishment from paradise, a life-cycle involving hard toil and then death rather than eternal life, and horrible pain in childbirth. (That in itself raises an Equalities Act issue, in that Eve’s sentence for the same offence seems markedly more harsh than Adam’s. The serpent also gets a sentence, and there’s clearly no trial of the serpent, who is not asked anything – AND God had not established that incitement was an offence)
[The later sentence of merely banishment for Cain, for murdering at that time one quarter of the world's population, seems somewhat out of kilter to the harsher sentence for eating an apple, but the Lord moves in mysterious ways]