Four Threats to the Presumption of Innocence

DOI10.1350/ijep.10.4.241
Publication Date01 July 2006
AuthorAndrew Ashworth
SubjectArticle
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2006) 10 E&P 241–279 241
FOUR THREATS TO THE PRESUMPTION OF INNOCENCE Four threats to the
presumption of
innocence
By Andrew Ashworth*
Vinerian Professor of English Law, University of Oxford
Abstract This article sets out to re-examine the rationale for the presumption
of innocence, and then assesses four contemporary threats to the
presumption—through confinement, by defining offences so as to reduce the
presumption’s impact; erosion, by recognising more exceptions; evasion, by
introducing more civil and hybrid procedures; and side-stepping, by increasing
restrictions on liberty to little short of its full deprivation.
he standing of the presumption of innocence may be thought to be
higher than ever: the famous declaration in Woolmington vDirector of
Public Prosecutions1is repeated frequently and with reverence, Parliament
reacted to the decision in RvDirector of Public Prosecutions, ex p. Kebilene2by
converting many persuasive burdens on the defence to mere evidential burdens,3
and the House of Lords has subsequently handed down two further decisions in
which it has used its interpretative power under s. 3 of the Human Rights Act 1998
to replace persuasive burdens on the defence with mere evidential burdens.4Yet
there is also a tide running in the opposite direction: measures are being taken
that purport to place public safety ahead of concerns about rights, and the recent
judicial decisions have not been welcomed in those quarters where constant
4RvLambert, Ali and Jordan [2001] UKHL 37, [2002] 2 AC 545, and Attorney-General’s Reference No. 4 of 2002
T
* This article is developed from the Beinart lecture delivered at the University of Cape Town in
August 2005 and published in (2006) 123 SALJ 62. I am grateful to the Editor of that journal for
permission to rework the text for publication here, and I am indebted to Shane Kilcommins (Cork),
Peter Mirfield (Oxford), Mike Redmayne (LSE), Paul Roberts (Nottingham) and P. J. Schwikkard
(Cape Town) for comments on previous drafts.
demands for greater security are heard.5In the practical politics of ‘the risk
society’ governments and individuals are constantly discussing the risks to
security and how to minimise them. Assessing situations and persons from the
point of view of perceived risk sits rather awkwardly with respecting the dignity of
others as full, rights-bearing citizens. Thus the argument of this article is that the
presumption of innocence needs to be debated and defended in the modern era
because, despite the supportive references with which this paragraph began, there
are threats to it from at least four sources—confinement, by defining offences so as
to reduce the impact of the presumption; erosion, by recognising more exceptions;
evasion, by introducing civil law procedures in order to circumvent the rights
conferred on accused persons; and side-stepping, by imposing restrictions on the
liberty of unconvicted persons that fall only slightly short of depriving them of
their liberty.
In order to assess the significance of what I describe as threats to the presumption
of innocence, a central part of this article will examine the reasons for respecting
the presumption as fundamental. These have not received sufficient attention
and, if people do not accept the reasons for upholding the presumption, they may
be much more willing to relegate or circumvent it. First, however, mention must
be made of the many factual assumptions about crime prevention and public
protection that are often relied on by those wanting to circumvent the
presumption.
1. Controlling crime: the context
It has long been assumed that one of the basic functions of the modern state is to
ensure that citizens are reasonably protected from crime. In a crude sense, each of
us may be said impliedly to agree not to use physical force against others (except in
extreme circumstances of self-defence) in return for the State’s promise of
protection. Recent decades have seen growing difficulties for states in meeting
this obligation. Despite the professional organisation of the police, prosecutors,
courts, prisons and so forth, the crime rate seems to have grown during the second
half of the 20th century and to be at a level, in most countries, that is thought to be
unacceptably high. The response is generally to create tougher measures in the
name of increasing public protection and security, and this is where many threats
to the presumption of innocence originate. The British government’s approach
has tended to take two related forms. The first is simply to increase severity, by
242 E & P
FOUR THREATS TO THE PRESUMPTION OF INNOCENCE
5 And, as we shall see, there are other recent decisions that give priority to public safety consider-
ations over the presumption of innocence, including two in the House of Lords—RvJohnstone [2003]
UKHL 43, [2003] 1 WLR 1736, and Sheldrake vDirector of Public Prosecutions [2004] UKHL 43, [2005] 1 AC
264.
means of higher maximum penalties, new offences, tightening criminal
procedure and new forms of sentence, bolstered by much tough talking from the
government.6The second approach is to focus on risk, and to direct the severity at
those persons who are thought to present particular risks to social order and
security—by adopting a broad notion of anti-social behaviour and through the
proliferation of preventive orders, new dangerousness provisions, new mandatory
minimum sentences, and the targeting of persistent offenders.
Much more could be said about these developments: some of the central
ideas—crime control, crime prevention, risk and security—are much less straight-
forward than they might appear.7Arguments for changes in criminal procedure
and evidence are often underpinned, explicitly or implicitly, by claims about
protecting the public that stand in need of empirical substantiation. Insofar as
inroads into the presumption of innocence are supported in that way, we have
reason to be sceptical about claims of reducing the risk to public safety, in the
absence of clear evidence. Equally, claims to be ‘rebalancing the system’ in favour
of victims call for close scrutiny in a country with such an unfortunate record of
miscarriages of justice. Victims of crime have no interest in an increase in the
number of unsafe convictions.
2. The presumption of innocence as a human right
From the fact that the presumption of innocence finds a place in every known
human rights document, it may be assumed that it is one of the least controversial
rights. Its scope and meaning are, however, eminently contestable. The presump-
tion appears to operate at two different levels—one is the criminal trial, the other
is the criminal process more generally. The former, narrower, conception is the
familiar principle that, where a person is charged with a criminal offence, the
prosecution bears the burden of proving guilt of that offence, and that proof must
be beyond reasonable doubt. But European human rights law also supports a
second, wider, sense of the presumption of innocence: that pre-trial procedures
should be conducted, so far as possible, as if the defendant were innocent. This
sense of the presumption acts as a restraint on the various compulsory measures
that may properly be taken against suspects in the period before trial.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 243
FOUR THREATS TO THE PRESUMPTION OF INNOCENCE
6 To add to the initiatives surveyed in A. Ashworth, ‘Criminal Justice Reform: Principles, Human
Rights and Public Protection’ [2004] Crim LR 516, we now have the Serious Organised Crime and
Police Act 2005 and the Prevention of Terrorism Act 2005.
7 Forelaboration, see A. Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 123 SALJ 62
at 63–8.

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